Barlow v. The Citadel General Assurance Company [Indexed as: Barlow v. Citadel General Insurance Co.]

94 O.R. (3d) 399

Court of Appeal for Ontario,

Winkler C.J.O., Rosenberg and Moldaver JJ.A.

February 4, 2009

Insurance -- Disability insurance -- Trial judge erring in instructing jury that insurer bore legal burden of proving that insured was no longer disabled because it had accepted claim and made payments under policy -- Misdirection not resulting in any substantial wrong or miscarriage of justice.

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

Held, the appeal should be dismissed.

The trial judge erred in instructing the jury that because the insurer had accepted the claim and made some payments under the policy, it bore the legal burden of proof to establish that the insured was not totally disabled. However, that misdirection did not result in any substantial wrong or miscarriage of justice.

APPEAL by the insurer from the judgment of Lalonde J. of the Superior Court of Justice dated November 22, 2007 for the insured. [page400]

Cases referred to Porter v. Metropolitan Life Insurance Co., 1984 5602 (NS SC), [1984] N.S.J. No. 277, 64 N.S.R. (2d) 293, 28 A.C.W.S. (2d) 26 (C.A.)

Robert S. Franklin and Chet Wydrzynski, for appellant. Frank E. Van Dyke, for respondent.

[1] Endorsement by THE COURT: -- The central issue on this appeal is whether the trial judge erred in directing the jury that the insurer bore the legal burden of proof to establish that the insured was not totally disabled, a defined term in the sickness and accident policy.

[2] The insurer had accepted the claim of the insured and made payments to her under the policy for a period of time.

[3] The insurer took the position based upon surveillance and other evidence that the insured was no longer totally disabled. In consequence, it discontinued the disability payments. As a result, the insured sued the insurer for breach of contract.

[4] It appears that the trial judge was of the view that because the insurer had accepted the claim and made payments under the policy, the insurer bore the legal burden of proving that the insured was no longer disabled.

[5] We disagree. In these circumstances, we are satisfied that the insured bore the legal burden of proof and that the law is correctly stated in Porter v. Metropolitan Life Insurance Co., 1984 5602 (NS SC), [1984] N.S.J. No. 277, 64 N.S.R. (2d) 293 (C.A.). Whether in other circumstances there may be a shifting of the legal burden to the insurer is something we need not decide.

[6] That said, we would not allow the appeal and direct a new trial as requested by the insurer. We are not satisfied that the misdirection resulted in any "substantial wrong or miscarriage of justice". Accordingly, the appeal is dismissed.

[7] Leave to appeal the costs disposition of the trial judge is denied.

[8] We would also dismiss the cross-appeal in respect of the wording of the judgment. Costs

[9] There will be no order as to costs.

Appeal dismissed.