DATE: 20051117

DOCKET: C42098

COURT OF APPEAL FOR ONTARIO

RE: GEORGE CALABRESE (Plaintiff/Appellant) v. HUB FINANCIAL INC. AND AIG LIFE INSURANCE COMPANY OF CANADA (Defendants/Respondents)

BEFORE: DOHERTY, CRONK and MACFARLAND JJ.A.

COUNSEL:

Bernie Romano for the appellant

N. Holovaci for the respondent, AIG Life Insurance Company of Canada

S.R. Mackay for the respondent, Hub Financial Inc.

HEARD & ENDORSED: November 15, 2005

On appeal from the order of Justice S.G. Himel of the Superior Court of Justice dated May 18, 2004.

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

[1] The findings of fact are dispositive. The trial judge found that the second policy was a new policy and not a replacement policy. The difference in the terms of the two policies justified her finding, particularly the inclusion of an annuity contract associated with the second policy. The finding is also supported by the fact that when the insurer cancelled the policy it returned the full premium not just the cash surrender value.

[2] The trial judge also found that the appellant was not responsible for the creation of the second policy. She noted that the second policy had its roots in the application for insurance prepared by the appellant and that he received 25 percent of his commission in recognition of his role. Although not legally entitled to this amount, we agree with the trial judge that this was a realistic compromise.

[3] We see no reason to interfere with the finding that the appellant did not demonstrate bad faith on the part of either respondent.

[4] The appeal is dismissed.

[5] Costs to the respondents in the amount of $5,000 each, inclusive of GST and disbursements.