Court of Appeal of Ontario

jjBarnicke Limited. v. Commercial Union Assurance Company of Canada

Date: 2000-03-30

Docket: CA C30113

J. Christopher Osborne and Jennifer K. Badley, for Appellant.

Per curiam:

[1] The appellant appears the judgment of Benotto J. dismissing its claim for damages under a fidelity policy of insurance.

[2] The trial judge in her thoughtful reasons for judgment concluded that the policy was void due to misrepresentation, [illegible text] the employee's knowledge to the appellant and found that the appellant had constructive knowledge of the fraud.

[3] In our view, it is only necessary to deal with the third basis cited above.

[4] There was ample evidence that the appellant had constructive knowledge of the employee's fraud. The chairman and chief shareholder of the appellant signed the corporate tax returns without looking at the financial statements attached. As he candidly admitted the fraud was there to be seen "just by turning the page." Moreover, it was admitted that a simple review of the payroll records and [illegible text] statements would also have revealed the fraud.

[5] The trial judge's conclusion on the issue is [illegible text] supported by the evidence.

[6] The appeal is dismissed with costs.

Appeal dismissed.