Neutral Citation: 1997 ONICDRG 235

OIC A96-001111

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA T. FAGUNDES

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION on PRELIMINARY ISSUES

Issues:

The Applicant, Maria T. Fagundes, was injured in a motor vehicle accident on January 15, 1996. She applied for statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway refused to pay income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Fagundes applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant excluded from receiving income replacement benefits under section 58(3)(a) of the Schedule?

The Insurer alleged that in applying for automobile insurance, the Applicant failed to disclose the fact that her 21-year-old son, Frank, was a licenced driver who lived in the household, which would have resulted in a substantially higher premium. The Insurer also alleged that the Applicant failed to disclose several other material facts. In March 1996, the Insurer refused the Applicant's claim for accident benefits arising out of her January 15, 1996 accident, cancelled the policy and refunded the premium paid.

1. Is the Applicant entitled to her expenses incurred in the arbitration?

Result:

1. The Applicant is excluded from receiving income replacement benefits. Her application for arbitration is dismissed.

2. The Applicant is entitled to half her arbitration expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on June 19, 1997, before me, Nancy Makepeace, Arbitrator. Details about those present at the hearing, witnesses, exhibits, and authorities relied on by the parties are set out in an Appendix to the decision.

Evidence and Findings:

Background facts

The Applicant testified that she telephoned Mr. Mariano Soares, an insurance broker with Crawford Fiorillo Insurance Brokers, after being given his name by her supervisor at work. There is some conflict in the evidence as to whether Mr. Soares provided a quote during this conversation or simply arranged for a meeting. There is no dispute that on March 31, 1994, Mr. Soares met with the Applicant and her husband in their home. Mr. Soares and Mr. Fagundes recognized each other from their army days in Portugal, and got reacquainted while standing in the Fagundes' driveway. Then they came inside and sat down at the kitchen table. Though there was some conflict in the evidence as to whether the Applicant participated in the discussion in the kitchen, there is no question that Mr. Soares filled in the application form and that both the Applicant and her husband signed it.

The Applicant and her husband have three children: Noelia, 23, who has left the family home, and Sabrina, 12, and Frank, 21, who still live at home. Frank has a driver's licence and occasionally drives his parents' car. He does not have a car of his own. It is undisputed that the application form required the Applicant and her husband to disclose the presence of Frank, a licensed driver, in the household,² and that this information was not disclosed. The Insurer accepted the application and issued a certificate of insurance listing the Applicant and her husband as the named insureds and the only drivers of the insured automobile.

The policy was cancelled, effective April 25, 1994, when the Fagundes' second monthly payment was returned for insufficient funds.³

At their request, Mr. Soares visited Mr. or Mrs. Fagundes again in their home, and a second application was prepared. However, it was signed only by Mr. Fagundes, as Mrs. Fagundes was not home during this visit. The second application, dated June 28, 1994, again listed Mr. and Mrs. Fagundes as the only listed drivers.⁴ A second policy was issued on the same terms as the first policy.

The policy in effect at the time of the accident was the renewal policy commencing June 29, 1995. Although the application form was not filed into evidence, the Insurer's renewal certificate and covering letter, as well as two internal documents, indicate that the policy was renewed on the same terms as the two earlier policies, except that the Insurer imposed a 10 percent surcharge because of the Applicant's May 20, 1994 conviction for failing to produce an insurance card.⁵This conviction was not disclosed on the June 28, 1994 application signed by Mr. Fagundes. According to the Applicant, she had got this ticket because of the Insurer's delay in providing her with an insurance card after she and her husband renewed the policy. I find that the conviction should have been disclosed whatever the circumstances.⁶ However, as the Insurer had learned about the conviction and adjusted the premium by the time of the motor vehicle accident, I give no further consideration to this misrepresentation.

The Applicant admitted that she also failed to disclose her speeding conviction on August 20, 1991. However, as this conviction occurred more than three years before the June 1995 renewal, it no longer came within the scope of question 6.⁷

At the time of the accident, the Insurer was still unaware of Frank's presence in the household. Nor was the Insurer informed that Frank had been convicted of careless driving on March 15, 1995.⁸ These were the main misrepresentations relied on by the Insurer.

The Law

The Insurer's cancellation letter, dated March 19, 1996, stated that the Fagundes policy was "CANCELLED void ab initio due to NON-DISCLOSURE of a material fact required to be stated on the application" [emphasis in original]. At the hearing, the Insurer's counsel conceded that the doctrine of void ab initio (void from the inception of the policy) has no application with respect to statutory accident benefits.⁹ The Insurer relied on section 58(3)(a) of the Schedule, which says that an insurer is not required to pay income replacement benefits

in respect of any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in the risk material to the contract.

It is undisputed that the Insurer bears the onus of proving, on a balance of probabilities, that the Applicant made or knew of a misrepresentation made to the Insurer, that the misrepresentation was material, and that it induced the Insurer to enter into the insurance contract.

Materiality

In a previous decision, I made the following comment about materiality:

A contract of insurance is a contract to insure an applicant against certain specific risks, at an agreed price. In my view, information which substantially affects the premium is material to the contract.¹⁰

I apply this definition here. Ms. Linda Zalusky, an underwriting manager for the Insurer, testified that the Applicant and her husband would have paid a substantially higher premium if the Insurer had known that Frank, who was under the age of 25, was licensed to drive and living in the household. The Insurer's Underwriting Guide & Rules confirm that Frank's presence would have forced the Applicant and her husband into a different and more costly rate class. Ms. Zalusky testified that the premium would have been increased by another 50 percent if the Insurer had known about Frank's March 15, 1995 careless driving conviction, which was revealed on the Motor Vehicle Abstract search undertaken by the Insurer after receiving the accident claim.¹¹The Insurer's Underwriting Guide & Rules do not allow for excluded driver or reduced coverage for named driver endorsements (OEF 28 or 28a).¹² Therefore, if the Fagundes' had disclosed the information about Frank, they would have had to pay a much higher premium or look for another insurer willing to write the policy with an excluded driver or reduced coverage endorsement.

I have no hesitation in finding that the misrepresentations were material and induced the Insurer to enter into the contract at a substantially reduced premium than they would otherwise have charged.

Did the Applicant make or know of the misrepresentations?

In her testimony, the Applicant tacitly conceded her failure to disclose the information about Frank. The real dispute in this case is about why the Applicant failed to disclose the information about Frank. The Applicant submitted that Mr. Soares did not ask about other drivers in the household and that she did not understand that she was required to provide this information.

Nothing in the language of paragraph 58(3)(a) of the Schedule indicates that the Insurer must prove that the Applicant's misrepresentations were intended to deceive. As this is a civil penalty provision, I find that it does not require proof of malicious or fraudulent intent. However, I find paragraph 58(3)(a) ambiguous as to what, if any, "mental element" it requires. I commented on this problem in a previous decision:

It would have been a simple matter for the drafters to insert the word "knowingly" between the words "has" and "made", so that the clause would read: "... any person who has knowingly made ... a material misrepresentation." The fact that they did not do so suggests that they did not intend to qualify the exclusion. On the other hand, the two other clauses of the same provision do include a mental element: "... any person ... who knows of, a material misrepresentation and "... any person ... who intentionally failed to notify the insurer of a change in the risk material to the contract." I cannot imagine why the drafters would require knowledge or intention in the latter two clauses, and not in the first. Moreover, section 233(1)(a)(ii) of the Act expressly requires a knowing misrepresentation; section 11 of the application form reiterates the language of section 233.¹³

In any event, I do not need to decide this issue in this case. For the reasons given below, I am satisfied that Mr. Soares asked the Applicant who were the drivers in the household. I am also satisfied that the Applicant understood the significance of the information about Frank and chose to withhold it in order to obtain a lower premium.

The Applicant's role

The Applicant attempted to minimize her familiarity with insurance matters and her involvement in the discussions with Mr. Soares. I find that she had average familiarity with automobile insurance and was the main party to the discussions with Mr. Soares, considering the following factors:

(A) At the time of the accident, Mr. and Mrs. Fagundes had been licensed for years (the Applicant since 1988). Though the couple’s prior insurance history is unclear, they testified that they had purchased automobile insurance before entering into the contract with Kingsway in March 1994. The Applicant testified that she approached her supervisor at work about finding a new insurer because her husband was out of work and the couple’s rates with their previous insurer were rising "every year." Clearly, the Applicant was very price-conscious, and knew that the rates offered by automobile insurers varied and that she could shop around for a better rate.

(B) There is no dispute that it was the Applicant, not her husband, who called Mr. Soares initially. When Mr. Soares met with Mr. and Mrs. Fagundes at their home, the Applicant joined the discussion when her husband and Mr. Soares came into the house and sat down at the kitchen table. Although the Applicant testified that Mr. Soares spoke mainly to her husband, she admitted that she showed him her driver’s licence, told him about the vehicle to be insured, gave him a cash down payment and provided a voided cheque in order to set up the automatic payment. Mr. Fagundes testified that the Applicant sat at the table and talked with him and Mr. Soares, but he was unable to provide much detail about the conversation. Whatever the exact roles of Mr. and Mrs. Fagundes in this discussion, I find that the Applicant was aware of the key points of the discussion, and, in particular, what coverages the couple were applying for.

(C) After the first policy was cancelled, Mr. Soares testified that it was the Applicant who called him about reinstating the policy. The Applicant testified that it was her husband who made the call, but Mr. Fagundes denied having any contact with Mr. Soares after signing the initial application in March 1994. I prefer the testimony of Mr. Soares, who had little if any interest in lying on this point, and whose evidence was corroborated by Mr. Fagundes.

(D) There is no question that it was the Applicant who called Mr. Soares in January 1995 to enquire about insurance for Frank, who wanted to buy a car. The Applicant testified that Mr. Soares told her that if Frank were insured under his own policy, it would cost $4-5,000 a year, which was "too much," and that it would "still cost quite a lot of money" if Frank were listed on his parents policy. The additional coverage was never purchased. The Applicant’s testimony indicates that by January 1995 she was aware of the difficulties of obtaining affordable insurance for a young male driver. The Applicant also admitted that Frank told her about his careless driving conviction of March 15, 1995 the following day.

(E) Finally, it was the Applicant who approached another insurer to arrange for new coverage, after Kingsway cancelled the policy.

I am not persuaded that Mr. Fagundes ever acted alone with respect to any transaction with Mr. Soares except for signing the June 1994 application in his wife’s absence. Based on the testimony of both spouses, I find that the Applicant handled most of the couple’s insurance business. I think it very likely that she knew how disclosing Frank’s presence in the household would affect the premium.

The documentary record in this case was less than ideal. Two application forms were filed into evidence: a form dated March 30, 1994 and signed by the Applicant and her husband,¹⁴ and a form dated June 28, 1994 and signed by the Applicant's husband only.¹⁵ The renewal application form which must have been signed in May or June 1995 was not filed into evidence, and I heard no evidence as to whether it was signed by the Applicant, her husband, or both of them. The Applicant testified that the second application for insurance - the June 1994 renewal - came by mail and she and her husband signed and returned it. As that application was clearly signed only by Mr. Fagundes, and the first application was signed by Mr. and Mrs. Fagundes at their home, it may be that the Applicant was referring to signing the 1995 renewal form. In any event, the insurance certificate in effect at the time of the accident indicates that the policy was renewed on the same basis as it had been in June 1994 - with the Applicant and her husband as the named insureds and the only drivers, and a 10 percent surcharge being applied for the Applicant's conviction.¹⁶

The poor documentation is not critical in this case because paragraph 58(3)(a) of the Schedule prevents the Applicant from receiving disability benefits if she made "or knew of" a material misrepresentation. I am satisfied that the Applicant knowingly misrepresented her circumstances or knew that her husband had done so at the time of their initial application in March 1994, and when applying to renew their insurance in June 1994 and June 1995. I find that the Applicant knew of her husband's failure to disclose the information relating to Frank in the June 1995 application. Moreover, the Applicant failed to amend the two previous applications which she signed. To the extent that misrepresentations were made by Mr. Fagundes, I am satisfied that the Applicant knew about them and, by her silence, implicitly adopted them as her own.

In conclusion, I find that the Applicant knowingly and intentionally failed to disclose material facts in order to avoid a substantially higher premium.

The role of the broker

The Applicant submitted that Mr. Soares neither asked about other drivers in the household nor warned about the consequences of non-disclosure.

The Applicant testified that in her first telephone conversation with Mr. Soares, she did not provide any particulars about the coverage needed, except to say that she wanted insurance for her and her husband. They then agreed that Mr. Soares would visit the Fagundes home. On that visit, Mr. Soares asked "who the insurance was for" but he did not ask who else would be driving the car, whether there were other licensed drivers in the household or about driving convictions. According to the Applicant, Mr. Soares called her with a quote 4 or 5 days later. This was satisfactory, and at a second meeting, the Applicant and her husband signed the application form prepared by Mr. Soares, paid the premium and received the insurance certificate (interim binder). The Applicant testified that Mr. Soares handed her the application form for her signature without reading it to her or giving her an opportunity to read it. Mr. Fagundes confirmed his wife’s account of the two meetings.

Mr. Soares testified that in their initial telephone conversation, he gave the Applicant a quote based on particulars she provided, and when that was satisfactory, they arranged for him to visit the Fagundes' home to complete the application. Mr. Soares testified that he asked who were the drivers in the household both in his initial telephone conversation with the Applicant, and when he met with the Applicant and her husband at their home. He also testified that during their first meeting, he explained that having a young male driver in the household would increase the premium. He also asked about driving convictions on both occasions. Mr. Soares testified that Mr. and Mrs. Fagundes answered "no" to both questions. Mr. Soares also testified that before asking the couple to sign the form, he asked whether they knew what they were going to be signing and reminded them that they were signing that there were no other drivers in the household. He added: "I do this with all drivers." In cross-examination, he added, "I wanted to make sure he [Mr. Fagundes] knew what he was doing." Mr. Soares testified that he asked about other drivers again when he spoke to the Applicant and her husband about reapplying after the initial policy was cancelled for non-payment. Again, he was told there was no one.

Given the Applicant's prevailing concern about price, I prefer Mr. Soares' evidence that he and the Applicant discussed the coverage needed and the premium to be charged when they spoke by telephone before they met at the Fagundes' home. I find that Mr. Soares asked who were the drivers in the household on both occasions - during the initial telephone conversation and the visit to the couple's home.

Mr. Soares' testimony would seem to indicate that he emphasized questions about other licensed drivers in the household over questions about driving convictions, for example. I am not convinced that he was as vigorous in his questioning as he would like me to believe. Mr. Soares testified that when he and Mr. Fagundes met in the driveway and recognized each other from their army days more than twenty years earlier, they talked about "what they had been doing in Canada." Later, when they went in the house, Mr. Soares said that he had a daughter, and Mr. Fagundes responded by telling him he had a son and a daughter, who were not licensed. Mr. Fagundes testified only that he and Mr. Soares "talked about the army" when they spoke in the driveway. I find it unlikely that Mr. Fagundes would fail to mention the existence of his eldest son, even if he were intending to withhold the information that he was licensed and living in the house. Moreover, given that Frank was living in the house at the time, I find it implausible that Mr. Soares would notice nothing to signal his presence. The Applicant intially testified that Frank was home in bed when Mr. Soares visited; she immediately amended her evidence to say that she could not remember whether he was at home at the time. Mr. Fagundes could not remember either. Finally, I am troubled by Mr. Soares' evidence about his telephone conversation with the Applicant in January 1995 about the cost of insuring a second car for Frank. I find that by January 1995 at the latest, Mr. Soares had reason to suspect that Mr. and Mrs. Fagundes had a licensed underaged son in the household.

However, the law did not oblige Mr. Soares to act as an investigator; it obliged the Applicant and her husband to disclose all material facts to the broker. In Aujla v. Kingsway,¹⁷ Arbitrator David Evans made the following comments about an insured's duty of disclosure:

I agree with the following statement of Saunders J. In North American Life Assurance Co. v. Caputo, 1989 CanLII 10433 (ON HCJ), 41 C.C.L.I. 104 (H.C.J) at p.107:

A contest between an insurer and an insured requires the utmost good faith. An insured is bound to communicate every fact and circumstance which may influence the insurer in deciding to enter the contract. There is a duty not only to make no misrepresentation but also to disclose all pertinent facts within the knowledge of the applicant.

I agree with these comments. In cross-examination, when asked whether she disclosed her prior driving convictions to Mr. Soares, the Applicant responded "he didn't ask me." Asked whether she understood that it was important for her to disclose everything about her driving history so that the Insurer could assess her premium, she responded "I didn't know; he was the one asking the questions; he was the agent." Mr. Fagundes expressed the same attitude. Asked in cross-examination whether he told Mr. Soares about the Applicant's driving conviction, Mr. Fagundes testified "I didn't tell him because he didn't ask." Mr. Fagundes also said he would have told Mr. Soares about Frank's presence in the household "if he had asked me." Later, Mr. Fagundes admitted that in June 1995, he did not disclose his wife's driving offence or Frank's driving the car, but he would have if Mr. Soares had asked. These comments of the Applicant and her husband are consistent with Mr. Soares' account of his telephone conversation with the Applicant in January 1995 about insuring a second vehicle. He testified that the Applicant first told him that the second vehicle was just for her and her husband, then asked what the premium would be if her son drove the vehicle, then told him her son did not live in the house; Mr. Soares had earlier understood that the son was not licensed. I find that the Applicant and her husband adopted a consistently evasive attitude with the Insurer.

I considered whether the Applicant relied on Mr. Soares to explain what information was relevant to the Insurer and the consequences of misrepresentation. However, I find the Insurer's less innocent explanation more consistent with the Applicant's evasive answers to several other questions during her testimony. I did not believe the Applicant's testimony that she did not remember any discussion between Mr. Soares, Mr. Fagundes and herself about the couple's prior insurance history, did not remember their insurance being cancelled because of non-payment, and did not remember how much they had paid for insurance previously. I also find frankly implausible the testimony given by Mr. and Mrs. Fagundes that they did not drive during the one or two years when they had not been able to afford insurance. I am not persuaded that the Applicant was so unsophisticated in insurance matters that Mr. Soares acted as her agent in completing the application forms. Further, I find that the Applicant and her husband were given an opportunity to review the forms before signing, and chose not to make use of that opportunity.

Nor am I convinced that a language barrier prevented the Applicant from understanding the gist of her conversation with Mr. Soares or the significance of signing the application form. The discussion between Mr. Soares and Mr. and Mrs. Fagundes occurred entirely in the native language of all three parties to the discussion. This factor distinguishes this case from the Laio Estate decision relied upon by the Applicant.¹⁸ I am also skeptical about the Applicant's testimony that she reads "hardly anything" in English. She has lived in Canada for 22 years, and passed her driver's examination, which includes a written test administered in English, some 8 years ago. These comments also apply to Mr. Fagundes.

I find that the Applicant knowingly failed to disclose to Mr. Soares the presence of an underaged driver in the household or his driving conviction, and that this non-disclosure amounts to material misrepresentation. I find that the Applicant knowingly made these misrepresentations or knew that her husband had done so. Accordingly, the Insurer is not required to pay her income replacement benefits under section 58(3)(a) of the Schedule.

Expenses:

Arbitration decisions have consistently held that arbitration expenses need not follow the outcome of a proceeding. However, where an Arbitrator finds that an applicant was not credible, or an application had little merit, it is within the Arbitrator's discretion to deny an applicant's expenses. In this case, I did not find the Applicant to be credible, but I also found Mr. Soares less than entirely credible. I find it appropriate to award the Applicant half her arbitration expenses incurred.

Order:

1. The Applicant's application for arbitration is dismissed.

2. The Insurer shall pay half the Applicant's arbitration expenses. I may be spoken to if the parties are unable to agree on the amount owing.

Nancy Makepeace

Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Maria T. Fagundes

Mrs. Fagundes'

Carlos J. Pereira

Representative:

Barrister and Solicitor

Kingsway’s

Myron L. Sidenberg

Representative:

Barrister and Solicitor

Kingsway’s

Elizabeth Iwata

Officer:

Mr. Jose Madeira provided English-Portuguese interpretation services.

Witnesses:

Mr. Mariano Soares, an insurance broker, Crawford Fiorillo Insurance Brokers

Mr. Clive Wayne, an independent insurance adjuster

Ms. Linda Zalusky, an underwriter, Kingsway Insurance

Mrs. Maria Fagundes, the Applicant

Mr. Francisco Fagundes, the Applicant’s husband

Mr. Franco Fagundes, the Applicant’s son

Exhibits:

Exhibit 1

Application for Automobile Insurance, March 30, 1994

Exhibit 2

Certificate of Automobile Insurance, April 25, 1994; Cancellation worksheet; Cancellation letter, June 29, 1994

Exhibit 3

Application for Automobile Insurance, June 28, 1994

Exhibit 4

Automobile Underwriting Information Memo, April 26, 1995; Letter concerning surcharge, May 5, 1995

Exhibit 5

Certificate of Automobile Insurance, June 29, 1995

Exhibit 6

Renewal letter, May 2, 1995

Exhibit 7

Cancellation letter, March 19, 1996

Exhibit 8

Premium refund cheque stub and memo, April 3, 1996

Exhibit 9

Handwritten, signed statement of Maria Fagundes, January 31, 1996

Exhibit 10

Typed version of Exhibit 9

Exhibit 11

Kingsway Ontario Automobile Quotation, April 26, 1995

Exhibit 12

Kingsway Ontario Automobile Quotation, February 10, 1997

Exhibit 13

Kingsway Ontario Automobile Quotation, February 10, 1997

Exhibit 14

Automobile Underwriting Guide & Rules, Kingsway General Insurance Company, April 1, 1994 (new business), May 1, 1994 (renewal business)

Exhibit 15

Ontario's Driving Record, Francisco Fagundes, February 26, 1996

Exhibit 16

Ontario's Driving Record, Maria Fagundes, July 13, 1994

Cases:

Aujla and Kingsway General Insurance Company (January 19, 1996), OIC A-015276

Blanchette v. C.I.S. Ltd. 1973 CanLII 3 (SCC), [1973], S.C.R. 833

Byford and Economical Mutual Insurance Company and State Farm Mutual Automobile Insurance Company and Co-operators General Insurance Company (April 17, 1996), OIC A95-000110

Hansra v. York Fire & Casualty Insurance Company (1982), 1982 CanLII 2005 (ON HCJ), 138 D.L.R. (3d) 293 (Ont. Co. Ct.)

Findlay and Lambton Mutual Insurance Company and General Accident Assurance Company of Canada (February 15, 1995), OIC A-005358 and OICA-005359

Le and the Dominion of Canada General Insurance Company (December 20, 1994), OIC A-005561

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Question 4 is: "Driver information - list all drivers of the described automobile(s) in the household or business". Question 4B is: "Are there any other persons in the household or business who are licensed to drive?"
3. 3Exhibit 2
4. 4Exhibit 3
5. 5Exhibits 4, 5, 6, 11 and 16
6. 6Question 6 of the amended form is: "Give details of all convictions of the applicant and any listed driver arising from the operation of any automobile in the last 3 years": Exhibits 3 and 16
7. 7"Give details of all convictions arising from the operation of any automobile in the last 3 years."
8. 8Exhibit 15
9. 9Findlay and Lambton Mutual Insurance Company and General Accident Assurance Company of Canada, (February 15, 1997), OIC A-005358 and A-005359 at p. 14, confirmed on appeal (December 22, 1995), P-005358 and P-005359, judicial review application dismissed, unreported decision of Divisional Court (Southey, Steele, Jenkins JJ.), dated January 9, 1997, under appeal to Ontario Court of Appeal; Aujla and Kingsway General Insurance Company January 19, 1996), OIC A-015276, at pp. 3-4; Byford and Economical Mutual Insurance Company and State Farm Mutual Automobile Insurance Company and Co-operators General Insurance Company, (April 17, 1996), OIC A95-000110, pp. 15-20.
10. 10Le and The Dominion of Canada General Insurance Company (December 20, 1994), OIC A-005561, at p. 12. I applied this definition in Byford (supra, note 9), and it has also been adopted in Aujla (supra, note 9). It was not challenged by the Applicant in this case.
11. 11This is confirmed by Kingsway's Underwriting Guide & Rules, Exhibit 14.
12. 12Exhibit 15
13. 13Byford, supra, note 9.
14. 14Exhibit 1
15. 15Exhibit 3
16. 16Exhibit 5
17. 17Supra, note # 9.
18. 18Laio Estate v. Metropolitan Life Insurance Co. (1985), 1995 CanLII 1013 (BC SC), 29 C.C.L.I. (2d) 84 (B.C.S.C.) The facts in this case are closer to the facts that gave rise to Hansra v. York Fire (1982), 1982 CanLII 2005 (ON HCJ), 38 O.R. (2d) 281 (Ont. Co. Ct.), where the court found that Mr. Hansra, the insured, had no difficulty communicating with Mr. Butani, the agent, in English and Hindi, though his native language was Punjabi.