COURT OF APPEAL FOR ONTARIO

DATE: 20050324

DOCKET: C42637

RE: TERENCE GOUDIE and GRETA GOUDIE (Plaintiffs/Appellants) v. THE CANADA LIFE ASSURANCE COMPANY, TD LIFE INSURANCE COMPANY and THE TORONTO-DOMINION BANK (Defendants/Respondents)

BEFORE: DOHERTY, SHARPE & ARMSTRONG JJ.A.

COUNSEL: Eric Williams for the appellants

Kevin Nearing for the respondents

HEARD: March 21, 2005 RELEASED ORALLY: March 21, 2005

On appeal from the order of Justice Giovanna Roccamo of the Superior Court of Justice dated October 14, 2004.

E N D O R S E M E N T

[1] We are satisfied that the appeal should be allowed.

[2] We agree with counsel for the respondents that the word “diagnosis” in the policy does not require that any diagnosis be made or communicated to the patient before it is effective for the purposes of the policy. We also agree with counsel for the respondents that a diagnosis does not necessarily have to be made by a treating physician to be effective for the purposes of the policy. In some situations, a pathological report will constitute a diagnosis.

[3] The policy, however, defines “cancer (life-threatening)” to exclude some cancers. The diagnosis referred to in the policy must be a diagnosis of “cancer (life-threatening)” as defined in the policy. The report completed by the doctor does not indicate whether the cancer detected by the pathologist constituted cancer (life-threatening). In fact, the doctor did not answer that specific question contained on the form provided to him by the respondents. The doctor’s comments in answer to that question could be read as indicating that he did not regard Mr. Goudie’s cancer as coming within the meaning of the phrase “cancer (life-threatening)”.

[4] Consequently, it cannot be said that there is no triable issue as to whether a diagnosis of “cancer (life-threatening)” as defined in the policy was made within the ninety day period.

[5] The appeal is allowed and the judgment rendered below set aside.

[6] The appellants are entitled to costs on the motion and on the appeal. We fix those costs at $8,000.00, inclusive of GST and disbursements.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”