COURT OF APPEAL FOR ONTARIO

DATE: 20051115

DOCKET: C41377

RE: Constantino Nava (Plaintiff (Appellant)) – and – Aetna Life Insurance Company of Canada (Defendant (Respondent))

BEFORE: Labrosse, Rosenberg and Gillese JJ.A.

COUNSEL:

Derek Collins

for the appellant

Gordon Jermane

for the respondent

HEARD & ENDORSED: November 15, 2005

On appeal from the Order of Justice Barry H. Matheson of the Superior Court of Justice dated January 14, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge made a detailed review of the evidence. His conclusion is cryptic. Clearly, the surveillance video had a profound effect on the trial judge. In addition, the trial judge found that Mr. Nava failed to disclose relevant information to his doctors and on his CPP application.

[2] His decision, which is based on the credibility of the witnesses, is supported by the evidence.

[3] We are unable to conclude that the trial judge made some palpable and overriding error that would permit this court to interfere.

[4] The appeal is dismissed with costs fixed at $4, 500.00 inclusive of disbursements and Goods and Services Tax.