MacQuarrie v. National Bank Life Insurance Company et al.

[Indexed as: MacQuarrie v. National Bank Life Insurance Co.]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Gillese and Lauwers JJ.A.

February 11, 2015

125 O.R. (3d) 396 | 2015 ONCA 100

Case Summary

Insurance — Exclusion clauses — Trial judge reasonably interpreting 90-day exclusion clause in critical illness insurance policy as referring to any sign of cancer that appeared before 91st day after certificate of insurance came into effect — Enforcement of exclusion clause not unconscionable.

The plaintiff appealed the dismissal of his claim for payment under a critical illness insurance policy.

Held, the appeal should be dismissed.

The trial judge reasonably interpreted a 90-day exclusion clause in the policy as referable to any sign of cancer that appeared before the 91st day after the certificate of insurance came into effect, whether that was before or after the date on which the certificate of insurance came into effect. It would not be unconscionable to enforce the exclusion clause.

APPEAL from the judgment of Sanderson J., [2014] O.J. No. 4130, 2014 ONSC 1298 (S.C.J.) dismissing an action.

Ramon Andal, for appellant.

Christine Carter, for respondents.

[1] Endorsement BY THE COURT: -- The trial judge dismissed the appellant's claim for payment under a critical illness insurance policy.

[2] The appellant has raised two issues:

-- Is the claim excluded by the 90-day exclusion clause in the agreement?

-- Did the trial judge err in holding that if the 90-day exclusion clause did exclude the claim, it should be enforced in the circumstances of this case? [page397]

[3] Counsel for the appellant argues that the 90-day exclusion clause refers only to situations in which the first sign of cancer appears in the 90 days following the effective date of the certificate of insurance. The trial judge read the 90-day exclusion clause as referable to any sign of cancer that appeared before the 91st day after the certificate of insurance came into effect, whether that was before or after the date on which the certificate of insurance came into effect.

[4] There is no suggestion that the trial judge misapprehended any relevant evidence in her interpretation of the 90-day exclusion clause. In our view, that interpretation was reasonable and we would not interfere with it.

[5] On the second issue, counsel has referred to the relevant case law and to the factors which he says demonstrate the unconscionability of enforcing the exclusion clause in the circumstances of this case. We have considered those factors. Like the trial judge, we see no basis upon which it could be said that it would be unconscionable to enforce the 90-day exclusion clause in these circumstances.

[6] The appeal is dismissed.

[7] Although the cross-appeal for the costs order is understandable, there are no grounds upon which to interfere with the trial judge's exercise of discretion in respect of the costs. The cross-appeal is dismissed.

[8] No costs on the appeal or the cross-appeal.

Appeal dismissed.

End of Document