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014 NSSC 115

Nova Scotia Supreme Court

Linden Estate v. CUMIS Life Insurance Co.

2014 CarswellNS 227, 2014 NSSC 115, [2014] I.L.R. I-5592, 1089 A.P.R. 292, 239 A.C.W.S. (3d) 485, 343 N.S.R. (2d) 292, 34 C.C.L.I. (5th)
60

Wanda Linden, as personal representative of Patrick Linden (deceased), Applicant v. CUMIS Life
Insurance Company, Respondent
Denise M. Boudreau J.

Heard: February 3, 2014


Judgment: April 4, 2014

Counsel: Aileen McGinty, Ronan Holland, for Applicant

Docket: Hfx 416526

Karen Bennett-Clayton, Tipper McEwan, for Respondent


Subject: Contracts; Estates and Trusts; Insurance

Headnoteclick here

Insurance --- Disclosure of risk Misrepresentation Life insurance Miscellaneous

Insured and wife applied for life, critical illness, and disability insurance in March 2011 and responded to detailed supplementary health

questions posed by underwriter Insured sought disability benefits in January 2012 Insured died in May 2012 Insured's wife applied
for life insurance benefits Insurer denied claim on basis of non-disclosure of pertinent medical information by insured Wife claimed
disability benefits and sought order that insurer pay amount owing under life insurance policy Claim dismissed Insured

misrepresented facts related to his health to insurer Misrepresentations were clearly material Misrepresentations related to

fundamental issues relating to health, i.e. hospitalization and treatment and use/abuse of drugs Accurate answers to questions would

have led insurer to information relating to extent of insured's health difficulties Reasonable insurer, given this information, would clearly
have required higher premium or declined risk Contract was voided by insured's misrepresentations.

Table of Authoritiesclick here

Cases considered by Denise M. Boudreau J.:

Brownlie v. Campbell (1880), (1879-80) L.R. 5 App. Cas. 925 (Eng. H.L.) followed

Fleet v. Federated Life Insurance Co. of Canada (2009), 2009 NSCA 76, 2009 CarswellNS 370, 74 C.C.L.I. (4th) 170, 279 N.S.R. (2d) 372,
887 A.P.R. 372 (N.S. C.A.) followed

Henwood v. Prudential Insurance Co. of America (1967), 64 D.L.R. (2d) 715, 1967 CarswellOnt 76, [1967] S.C.R. 720(S.C.C.)
considered

Katrichak v. National Life Assurance Co. of Canada (1992), 7 C.C.L.I. (2d) 195, [1992] I.L.R. 1-2883, 1992 CarswellBC 726(B.C. S.C.)
referred to

Kehoe v. British Columbia Insurance Co. (1993), 79 B.C.L.R. (2d) 241, 28 B.C.A.C. 68, 47 W.A.C. 68, [1993] 6 W.W.R. 196, 15 C.C.L.I.
(2d) 25, [1993] I.L.R. 1-2996, 1993 CarswellBC 131 (B.C. C.A.) referred to

Mutual Life Insurance Co. v. Ontario Metal Products Co. (1923), 1923 CarswellOnt 105, [1924] S.C.R. 35, [1924] 1 D.L.R. 127 (S.C.C.)
considered

Stewart v. Canada Life Assurance Co. (1999), 1999 CarswellOnt 2342, 14 C.C.L.I. (3d) 178, [2000] I.L.R. I-3792, 100 O.T.C. 93 (Ont.
S.C.J.) referred to

Walsh v. Unum Provident (2012), 8 C.C.L.I. (5th) 18, 2012 CarswellNS 134, 2012 NSSC 86, [2012] I.L.R. I-5259, 994 A.P.R. 154, 314
N.S.R. (2d) 154 (N.S. S.C.) referred to

Walsh v. Unum Provident (2013), 24 C.C.L.I. (5th) 35, 2013 CarswellNS 819, 2013 NSCA 124, 1063 A.P.R. 311, 336 N.S.R. (2d) 311 (N.S.
C.A.) referred to

Statutes considered:

Hospitals Act, R.S.N.S. 1989, c. 208


s. 36 considered

Insurance Act, R.S.N.S. 1989, c. 231


s. 1 considered

s. 82(1) considered
s. 82(2) considered
s. 83 considered

CLAIM for benefits under insurance policy.


Denise M. Boudreau J.:
1

The applicant Wanda Linden, as personal representative of her deceased husband Patrick Linden, seeks an order that the

respondent, CUMIS Life Insurance Company, pay the full amount owing under a life insurance policy on his life. The Applicant also claims

monthly disability insurance benefits from the respondent, for a period of months in 2012, during which time she claims Patrick Linden was
disabled, before and until his death in May 2012.

The respondent submits, in response, that the deceased Patrick Linden made material misrepresentations as to his health in his

application for the above-noted insurance, thereby voiding the insurance contract ab initio. They claim that there is no amount owing as a
result.
3

At the hearing of this matter, the parties tendered a number of affidavits with the court, including an affidavit from the plaintiff Wanda

Linden dated October 15, 2013; an affidavit from Jon-David Reid, who is a Disability Claims Examiner with the respondent, dated

November 14, 2013; and an affidavit from Shelley Boyd, who is an underwriter with the respondent, dated January 27, 2014. Both Mr. Reid
and Ms. Boyd were subject to cross-examination.
4

The parties also relied upon a number of documents that were placed before the court, by consent of both parties, for the truth of their

contents. This included 2 Joint Books of Exhibits, Volumes #1 and #2, as well as all exhibits attached to the affidavits. The one exception
being Tab 1 of Joint Exhibit Book Volume 1, "Response to Interrogatories of Wanda Linden, sworn to December 10, 2013".
Facts
5

Wanda Linden and Patrick Linden were husband and wife. On March 23, 2011, as part of a mortgage application, the Lindens

completed and signed a "Cumis Group Mortgage Protection Insurance Application". This was an application for life, critical illness and

disability insurance, in relation to a mortgage being granted to them by Sydney Credit Union for their home located in Sydney, Nova Scotia.
The life insurance portion of the contract provided for $53,200.00 of coverage. The disability portion of the contract provided for $550.29 of
monthly coverage.
6

The insurance application contained a section called "health questions". Both Lindens answered "no" to most of the questions

contained in that list. However, the document contained the following question:

Within the past 36 months have you received any medical consultation, advice, investigation and/or treatment, initial or follow up, from a

physician or healthcare practitioner, including the prescription of any medication for any symptoms or illness, whether or not a confirmed
diagnosis has been determined with regard to any disease, disorder, injury or impairment relating to: heart, blood vessels, blood,

cholesterol, or blood pressure; lupus, lungs, asthma, emphysema, lymph nodes, stomach, intestines, bowel, colon, pancreas, kidneys, liver,
hepatitis, diabetes, stroke, brain, spinal cord, nerves, multiple sclerosis; cancer, tumour (benign or malignant); depression, anxiety,
psychosis, schizophrenia; alcohol abuse and/or drug abuse?
7
8

To this question, Wanda Linden answered "no". Patrick Linden answered "yes".
Both Lindens answered "no" to the following question:

Within the past 36 months, have you had any symptom or condition (excluding pregnancy or broken bones) for which you have been
admitted to a hospital or medical treatment facility?
9

Another question contained at page 2 elicited "yes" answers from both Lindens:

Have your parents, brothers, or sisters had heart disease, kidney disease, stroke, diabetes, cancer or any hereditary disease diagnosed
prior to age 65?
10

The document further provided as follows:

IF YOU HAVE ANSWERED "YES" TO ANY OF THE HEALTH QUESTIONS and/or IF THE COVERAGE AMOUNT APPLIED FOR IS
GREATER THAN $300,000, CUMIS WILL CONTACT YOU BY PHONE TO PBTAIN ADDITIONAL MEDICAL INFORMATION
(SUPPLLEMENTAL HEALTH QUESTIONNAIRE) TO ASSIST IN THE REVIEW OF YOUR APPLICATION.
11

As a result of the parties "yes" answers, the respondent required a Supplemental Health Questionnaire (the "SHQ") to be completed

for both parties. This consisted of a telephone interview conducted by an underwriter, to ask further, more detailed health questions. In the
Linden's case, the interviews took place on April 1 2011.
12

It is on the basis of the answers provided by Mr. Linden at the time of that interview that the present dispute arises. The respondent

13

The notes of the telephone underwriter, in relation to Mr. Linden's interview, have been produced to this court, and consist of thirty

submits that Mr. Linden did not accurately portray his health issues in the course of this interview.

health questions, some involving various sub questions. This document was provided as Exhibit "B" to the Affidavit of Jon-David Reid, and
again as Exhibit "E" to the Affidavit of Shelly Boyd. I reproduce the following questions and answers from that document, which I find are
relevant:

Have you ever had, been told you have, been treated, tested or counselled for any of the following:

5. dizziness, fainting, persistent headaches, seizures, epilepsy, transient ischemic attack (TIA), paralysis or stroke, multiple sclerosis or any
other neurological disorder?
Answer: No.

6. Any psychological or psychiatric disorder including psychosis, anxiety or depression?


Answer: Yes.

(a) What is the name of the condition?


Answer: Depression.
What is your age?
Answer: 47

(b) How many episodes have you had?


Answer: 1

(c) How long has it been since your episode?


Answer: 20 years 0 months.

(d) How long did your depression last? Please provide details.
Answer: Currently been of (sic) medication for one month.
(e) Have you ever been hospitalized for this condition?

Answer: No.

(f) Are you currently under a care of a psychiatrist?


Answer: Yes.

(g) How many times have you seen your psychiatrist in the past 12 months?
Answer: three

(h) Are you employed?


Answer: Yes.

Have you missed any work in the past 12 months due to depression?
Answer: No.

(j) Are you taking any medication(s) for depression?


Answer: No.

(k) Is there any other information that you haven't already disclosed about this condition? Please provide details.
Answer: No.
...

15. Any mental or physical condition not listed above?


Answer: No.

16. Have you ever been a patient in a hospital, medical facility or treatment centre?
Answer: No

17. Do you use alcohol?


Answer: No.

18. Have you ever used illegal drugs? (drugs other than over the counter or those prescribed by a physician?)
Answer: No.

19. Have you received or been advised to have treatment for the use or abuse of alcohol?
Answer: Yes.

Do you currently consume alcoholic beverages?


Answer: No.

How long has it been since your last drink of alcohol?


Answer: 17 years 0 months.

Have you had any relapses since your last treatment for alcohol use?
Answer: No.

20. Have you received or been advised to have treatment for the use or abuse of drugs?
Answer: No.
...

22. Have you been disabled or absent from work for more than seven consecutive days due to a medical and/or psychiatric impairment,
illness, or injury in the past three years?
Answer: No.

23. Are you currently under medical observation, receiving treatment or medication?
Answer: No.

24. Have you ever had an electrocardiogram, x-ray or other diagnostic test?
Answer: Yes.

What tests have you had?

Answer: other diagnostic tests.

Please advise what test(s) were performed.


Answer: Stress Test.

Why did you have these tests?


Answer: Can't remember.

When were they performed?


Answer: 10 years ago.

What were the results (normal, abnormal, don't know)?


Answer "Fine".
...

30. Why did you last consult with your physician?

Answer: Regular check-up (application comments: follow-up visit with his psychiatrist to see how he is doing off the medication).
14

On May 5, 2011, the respondent issued the insurance policy for disability, critical illness and life insurance.

15

During the summer and fall of 2011, Patrick Linden suffered bouts of depression, and was admitted to hospital for this condition. In

16

During February and March 2012, the respondent wrote various letters to Wanda Linden and Patrick Linden, requiring more

January 2012, Patrick Linden submitted a claim for disability benefits under the insurance policy issued by the respondent.

information regarding his claim for disability insurance. Unfortunately, on May 20, 2012, Patrick Linden died. Following his death, the

applicant Wanda Linden notified the respondent of his death and made a request for life insurance pursuant to the life insurance policy.
17

On June 12th, 2012, the respondent wrote to the applicant Wanda Linden, indicating that both the disability and the life insurance

claims, were being denied, because of "non-disclosure of pertinent medical information material to the insurance risk".

18
19

In February 2012, the respondent had requested and later received copies of medical records in relation to Patrick Linden.

The medical reports of Patrick Linden were provided to this Court, in the form of Joint Exhibit Books Vols. 1 and 2. It would appear,

based on a review of this documentation, that Patrick Linden had a fairly lengthy history of medical intervention in his life. I have reviewed
all of this documentation. I note here (in summary fashion) some of the most pertinent information in my view.

(a) Exhibit Book #1 Tab 3: On September 23, 1988 Patrick Linden (DOB: 03/15/64; then aged 24) was seen in the outpatient department of
the Sydney City Hospital for carbon monoxide inhalation. The documentation is not clear as to whether this was a suicide attempt or an

accidental inhalation. While original reports suggest an accidental event, it would appear that Mr. Linden may have later acknowledged that
this was a suicide attempt due to difficulties with a girlfriend.

(b) Exhibit Book #1 Tab 4: On January 14 1989 Patrick Linden attended St. Rita's Hospital OutPatient department. The summary indicates:

"to OPD with friends after taking Xanax 14 tabs...episode precipitated by argument with ex-fiance". Final diagnosis indicates "Depression,
Xanax overdose". It would appear that treatment was provided, but it is further noted that Mr. Linden signed himself out of hospital after 12

hours. The document signed indicates, among other things, "This is to certify that I, Pat Linden, a patient in St. Rita Hospital, am leaving the
hospital against the advice of the attending physician and of the hospital administration."

(c) Exhibit Book 1 Tab 5: On December 19 1995 Patrick Linden attended the Cape Breton Regional Hospital Crisis Intervention Program.
Under "Nature of Crisis", the document notes that that while drinking Mr. Linden smashed up his home, threatened his wife, cut his arm

quite badly on glass, required surgery; history of alcohol problems, history of problems with anger management. The document notes that
Mr. Linden has seen Ron Gillis five or six years ago at Sydney Mental Health Clinic, not seeing anyone at present. Report notes as
"interventions": resource counselling-addiction services, second chance program.

(d) Exhibit Book 1 Tab 6: In April of 1996, Report from Cape Breton Regional Hospital, cumulative therapeutic record. It is stated that Mr.
Linden "is presently a resident at the local addiction centre. That is, he is taking the 21 day intensive treatment program."

In October 1996, Patrick Linden attended mental health services, complaining of anorexic and bulimic symptoms, clinician notes "mildly

depressed with anxious features". In November 1996 Mr. Linden was seen in the eating disorder clinic for a nutritional assessment and diet
counselling. Admits to binging/purging behaviour. This continues to be an ongoing issue for Mr. Linden through 1997.

(e) Exhibit Book 2 Tab 3: Records indicate "This patient was recently discharged from Detox on a voluntary admission." It is unknown
whether this is referring to the April 1996 detox program, or a later one.

(f) Exhibit Book 1 Tab 9: On October 8, 2004 (Emergency Record Cape Breton District Health Authority), Mr. Linden attended hospital

indicates he is not feeling well and feels he is taking too many medications. He is taking clonazepam (.5 mg), mistaqspine (30 mg) and

gravol. The assessment notes that he feels "he is taking too many clonazepam to cope with stresses"; he feels he is "craving meds", "has
thoughts of suicide on a daily basis, "all the time", and "has attended numerous programs in the past". Regarding alcohol and drugs:

comment indicates 8 years of sobriety, last admission to detox and attendance with addiction services, AA attender in the past, indicates
never being admitted to psychiatry but has seen many health professionals in the past including Dr. John Gainer, and outpatient mental

health counsellors in Sydney. Diagnosis is listed as "benzodiazepine dependence". Management noted by Dr. Khan: "I have advised him to
contact the addiction services next week and to book a bed for himself in the detox". Also, referral to be made to Sydney Mental Health.
(g) Exhibit Book 1 Tab 10: During the evening of March 29 2005 Mr. Linden presented at Cape Breton District Health Authority having

"suicidal thoughts, agitated, unable to see psychiatrist for 4 weeks". He is still having difficulties with abusing medication, and possible
suicidal ideation. Mr. Linden presented as very upset, angry, irritable.

At that time Mr. Linden was admitted to hospital pursuant to a formal medical certificate for admission, in accordance with to s. 36 of

the Hospitals Act and Regulation 12. Dr. Brian Roxburgh signed the certificate, noting that he had reasonable and probable grounds to

believe that Mr. Linden (a) suffered from a psychiatric disorder; and (b) should be admitted to a facility under the Hospitals Act because (i)

he required the in-patient services provided by the facility; and (ii) he required care that could not be adequately provided outside the facility

because he was a danger to his safety or the safety of others. Under the section marked "observations from my own examination in support
of (a) and (b) above, Dr. Roxburgh noted: "threatening to take overdose, aggressive, smashing hand on table, throwing glasses".

Mr. Linden was formally admitted to Cape Breton Regional Hospital on March 30, 2005. He was discharged on the 4th of April, 2005. At

that time the discharging physician notes that Mr. Linden seemed to be responding well to the medication changes, was more stable and
had greatly improved. Medications had been decreased but continued after discharge.

(h) Exhibit Book 1 Tab 11: On March 30, 2006 I note a report from Lydia MacIsaac, a nurse at the day centre program, mental health

services. She reviews all of Mr. Linden's past and present health concerns, including issues of depression, anxiety, past abuse of alcohol
as well as eating disorder. Mr. Linden indicates in this report that he feels his depression is worsening. Page 3 of the report notes:

Patrick also has a history of abusing Benzodiazepines that are prescribed for him (i.e. Rivotril, 10-11 tablets at one time). He stopped
abusing this after he was admitted to 1B and spent three weeks with there (sic) withdrawing. He presently admits to abusing gravol,

reportedly taking 10-15 tablets of 50 mgs. After consultation with Dr. Milligan he was instructed to half the dose on a weekly basis until
discontinued, which he agreed with.

It is unclear to me when the three week admission, referred to in this report, occurred. It may be the same attendance noted in the April

1996 report, or another. Diagnostic impression noted by Nurse MacIsaac, were "major depressive disorder, recurrent, moderate Bulimia
Nervosa, purging type."

On June 16 2006, in Day Centre progress notes, relating to a therapy program being attended by Mr. Linden, notes indicate:

Patrick attended regularly this wk. On Monday he appeared sedated with eyes /2 closed and speech slightly slurred. His wife left a very
1

detailed message reporting a crisis that occurred over the weekend that resulted in Patrick taking pills as a suicidal gesture.

(i) Exhibit Book 1 Tab 12: A March 2006 Day Centre Discharge Summary, confirms that Mr. Linden began group therapy the week of April
7, 2006, and was discharged from the program August 25, 2006.

(j) Exhibit Book 1 Tab 13: In June 2008 a gastroscopy was performed on Mr. Linden, as a result of his complaints of "epigastric discomfort".
No abnormalities were seen. It is unclear whether this procedure was performed on an in-patient or outpatient basis.

In October 2008 Mr. Linden had an appointment with psychiatrist Dr. Rogers. Plan is noted as: "1. This patient has been encouraged to
cease abusing Diphenhydramine and to cease purging by vomiting and the use of laxatives."

(k) Exhibit Book 1 Tab 16: In February 2011, Mr. Linden attended the Sydney Mental Health Clinic. He indicated that he had stopped taking
his medication and wished to speak to somebody. On February 22, 2011, Mr. Linden presented at the emergency department, noting

"tremulous while having OPD EKG, profound weakness, eating disorder, no clonazepam, no Effexor two weeks, tremors since Sunday."

On March 1, 2011, Mr. Linden attended for a follow up appointment. He seemed better than in February, noted feeling fatigued, but mood is
good, sleeping well, seemed more vigorous and engaged. He was seen again on March 16, 2011, when he again seemed to be doing well.
The report noted that he is now taking Venlafaxine. Also noted is the need for a follow-up appointment in 4 weeks.
20

As noted hereinabove, the insurance application was signed by Mr. and Mrs. Linden on March 23rd 2011. Unfortunately, a few

months later Mr. Linden's health again took a turn for the worse (Exhibit Book #1, Tab 16). In June 2011 he was admitted to the psychiatric
unit of the Cape Breton Health Care, due to a suicide attempt. He continued to experience setbacks to his mental health, culminating in his
request for disability benefits in January 2012. In May 2012, Patrick Linden died.
Law
21

It is well-settled that insurance contracts are contracts of utmost good faith, requiring the purported insured to disclose all material

22

In Norwood on Life Insurance in Canada (3 ed.) Carswell, 2002 the authors note at page 376:

facts known to him.

rd

Unlike the case in many other kinds of contracts where the parties are in an equal position as far as ascertaining matters which are material
to the proposed transaction, the facts which have a bearing upon the insurance risk which the insurer is asked to take are usually known in
full detail only to the parties seeking to be insured ...
23

The concept is clearly described in Brownlie v. Campbell [(1880), L.R. 5 App. Cas. 925 (Eng. H.L.)] at p. 954:

In policies of insurance, whether marine insurance or life insurance, there is an understanding that the contract is uberrima fides (sic), that if
you know of any circumstance at all that may influence the underwriters' opinion as to the risk he is incurring, and consequently as to

whether he will take it, what premium he will charge if he does take it, you will state what you know. There is an obligation there to disclose
what you know; and the concealment of a material circumstance known to you, whether you thought it material or not, avoids the policy.
24

The Nova ScotiaInsurance Act R.S.N.S. c. 231, s.1, has codified the need for disclosure on behalf of applicants for disability and life

insurance, respectively.
Duty to Disclose

82(1) An applicant for insurance on his own behalf and on behalf of each person to be insured, and each person to be insured, shall

disclose to the insurer in any application, on a medical examination, if any, and in any written statements or answers furnished as evidence
of insurability, every fact within his knowledge that is material to the insurance and is not so disclosed by the other.

(2) Subject to sections 83 and 86, a failure to disclose, or a misrepresentation of, such a fact renders a contract voidable by the insurer.
25

Section 83 of the Act further provides that where a contract is in effect for at least 2 years prior to a claim, material

misrepresentations do not void the contract unless fraud can be shown. In this particular case, the facts show that the contract was in effect
for less than 2 years, therefore, that requirement does not exist.
26
27

In order to determine whether Mr. Linden failed to meet this requirement, one must first ask: What constitutes a "material fact"?

Generally speaking, "....a fact is material if it had been truly disclosed it would have caused a reasonable insurer to decline the risk or

to have stipulated a higher premium." (Henwood v. Prudential Insurance Co. of America, [1967] S.C.R. 720 (S.C.C.), at par 19)
28

This is a question of fact for each case, based on objective criteria. The burden is on the insurer to show, on a balance of probability,

that had certain facts been disclosed, those facts would have caused an insurer to decline the risk or request a higher premium (see Walsh
v. Unum Provident, [2012] N.S.J. No. 116 (N.S. S.C.) (upheld by the NSCA at [2013] N.S.J. No. 582 (N.S. C.A.); also Kehoe v. British

Columbia Insurance Co. (1993), 15 C.C.L.I. (2d) 25 (B.C. C.A.)). It stands to reason that only significant matters will be considered material
misrepresentations.
29

Furthermore, while it is clear that the insured has a duty to disclose, the court must also examine the actual questions that were

asked by an insurer, in determining whether a misrepresentation has occurred. I quote from our Court of Appeal in Fleet v. Federated Life
Insurance Co. of Canada, 2009 NSCA 76 (N.S. C.A.):

[23] The basic duty upon the potential insured to disclose material facts exists independently of any questions asked by the insurer. This
duty was first recognized as a common law rule....

[25] However, the nature and context of an insurer's questions can have a direct impact on the scope of an insured's duty to disclose.
30

This brings us to the principle of contra preferentum. Since insurance contracts are drafted by the insurer, it is their responsibility to

ensure the clarity and thoroughness of their questions. Ambiguities will be interpreted in favour of the insured. As noted by the Supreme
Court of Canada in Mutual Life Insurance Co. v. Ontario Metal Products Co. (1923), [1924] S.C.R. 35(S.C.C.):

It is well established law that preparation of the form of policy and applications being in the hands of the insurers, it is but equitable that the
questions to which they demand answers should, if their scope and purview be at all dubious, either in themselves or by reason of context,
be construed in favour of the insured, especially after this death when we are deprived of the advantage of his version of what occurred

upon the medical examination and of an explanation by him of his understanding of the questions and of his reasons for giving the answers
to them recorded by the medical examiner. The insurers put such questions and in such forms as they please but the "are bound so to
express them as to leave no room for ambiguity". To such a case the contra preferentum is eminently applicable.

31

In this case, the applicant submits that the questions posed to Mr. Linden, and the answers he gave, were ambiguous. As such, in

their submission, these ambiguities should be interpreted in favour of the insured, Mr. Linden, in accordance with that principle. I shall
return to that later.
32

It is in light of these principles that I now turn to the facts of this case. The respondent points to a number of responses of Mr. Linden

which they claim constitute material omissions. The burden is on the respondent to show that these do constitute material
misrepresentations. I shall deal with them in turn.
Depression/Mental Health issues
33

In the telephone interview, Mr. Linden confirmed that he suffered from depression. When asked "How many episodes have you

had?" The answer provided was "1". The questioning continued:


(c) How long has it been since your episode?
Answer: 20 years 0 months.

(d) How long did your depression last? Please provide details.
Answer: Currently been of (sic) medication for one month.
(e) Have you ever been hospitalized for this condition?
Answer: No.

(f) Are you currently under a care of a psychiatrist?


Answer: Yes.

(g) How many times have you seen your psychiatrist in the past 12 months?
Answer: Three.

(h) Are you employed?


Answer: Yes.

(i) Have you missed any work in the past 12 months due to depression?
Answer: No.

(j) Are you taking any medication(s) for depression?


Answer: No.

(k) Is there any other information that you haven't already disclosed about this condition? Please provide details.
Answer: No.
34

It is the respondent's contention that these constitute material misrepresentations, as Mr. Linden, in fact, had a history of depression

spanning a number of years, as I have outlined above. In the submission of the respondent, that history is not sufficiently captured by the
above-noted answers, since they interpret those answers as merely disclosing one bout of depression in 1981.
35

I do not reach that conclusion. In my view, the questions and answers here, regarding the existence and extent of a depressive

disorder in this man's life, are subject to interpretation. It is not enough to examine each question individually; the entire line of questions
and answers has to be reviewed in context and in conjunction with each other (see: Ontario Metal Products, supra, at page 39]. It is true

that Mr. Linden, when asked "how long has it been since your last episode" answered "20 years". However, this answer must be read along
with other answers given by Mr. Linden, wherein he indicated that he had been off "meds" for one month, that he was currently under the

care of a psychiatrist, and that he had seen this professional three times in the past year. It is my view that, in reading all of these answers
together, an equally reasonable interpretation is that Mr. Linden is disclosing a significant period of difficulty with depression, leading up to
the present day.
36

Mr. Linden is now deceased and unable to explain his answers, as was the case in the Ontario Metal Products, supra. I also note that

37

In keeping with the contra preferentum rule, I would therefore accept this latter interpretation, to the benefit of Mr. Linden. I am not

there does not appear to be any evidence that the form was subsequently sent to Mr. Linden for his review and signature.

prepared to find that these answers given by Mr. Linden "materially misrepresent" the extent of his struggles with depression. The insurer
has not met its burden in this particular area.
Suicide Attempt(s)/Anorexia/Bulimia
38

The respondent points to other, more specific difficulties that Mr. Linden had experienced, including attempt at suicide (on one, or

more than one) occasion, as well as anorexia and bulimia, and argues that those health difficulties should also have been disclosed. It is
clear that the questionnaire did not refer to either suicide attempts or anorexia specifically. However, the respondent submits that Mr.

Linden should have disclosed these problems when he was asked about "other information about the condition" ("the condition" being
depression).
39

I have carefully considered these issues, and it is not clear to me that these answers were elicited by that question. A number of

cases have recognized that, where a question is broadly worded or otherwise subject to interpretation, a failure to disclose may be the
result of a misinterpretation or misunderstanding. (See: Stewart v. Canada Life Assurance Co. (1999), 14 C.C.L.I. (3d) 178 (Ont.
S.C.J.); Katrichak v. National Life Assurance Co. of Canada (1992), 7 C.C.L.I. (2d) 195 (B.C. S.C.))
40

In the case of the suicide attempt(s), in my view it is not clear that such an attempt would, in fact, constitute "further information"

about Mr. Linden's depression. That implies a direct relation; are those two issues directly related in fact? Or are they possibly related to
other aspects of Mr. Linden's health? In relation to the issues of anorexia or bulimia, again it is not clear to me that these difficulties

constitute "other information" about Mr. Linden's depression. Are they related? Are they separate? I have not been provided with any
evidence upon which I could base either finding.
41

My point, simply, is twofold: firstly, I am of the view that these broad questions, in the context of the previous questions regarding

depression, lend to ambiguity about what falls within the answer "depression', and what falls outside of "depression", such as to constitute
another separately disclosable issue. Once again, given that Mr. Linden has died and is not capable of testifying and explaining his

answers, and given that he had no occasion to review his answers, in my view there is a need for this Court to be even more vigilant in
relation to possibly confusing or vague questions, or questions with numerous possible interpretations.
42
43

Therefore, I am not persuaded that Mr. Linden misrepresented his health status in his answers to this particular question.

Alternatively, in the submission of the respondent, both difficulties should have been disclosed in response to question 15: "Any

mental or physical condition not listed above?" I have some doubt that a "suicide attempt(s)" would constitute another "mental of physical
condition". On the other hand, in my view there is less ambiguity with the issues of anorexia and bulimia; I find that Mr. Linden should

properly have disclosed that condition in response to that question. I see his failure to give that answer, in those circumstances, to have
misrepresented the facts.

Hospitalization/Treatment
44
45

Lastly I turn to the answers given by Mr. Linden to questions regarding hospitalization and treatment.

In the tele-questionnaire Mr. Linden was asked "if he had ever been a patient in a hospital, medical facility or treatment facility". To

this question, he answered "no". He was further asked "whether he had ever received or been advised to have treatment for the use or
abuse of drugs". He also answered "no".
46

Unlike some of the other questions I have already discussed, these particular questions are clear. They are not ambiguous or

47

The applicant argues that the question relating to his having been a "patient" is an extremely broad question, thereby leading to

confusing questions. They should have led to clear truthful answers. They did not.

ambiguity; for example, it could include attendance at a doctor's appointment. I disagree. I see no confusion or ambiguity in the question. It

clearly means what it says, admission as a patient to a hospital or treatment facility. In this particular case, Mr. Linden had truly experienced
the full gamut of types of medical intervention; he had visited doctors, he had been an outpatient in a medical facility, he had been an in-

patient at a hospital and he had been a patient at a treatment facility. No matter his interpretation of this question, he should have answered
yes. By any standards, the evidence shows that Mr. Linden had been, in fact, "a patient" numerous times in his life.
48

Of course, these occasions took place due to a number of health difficulties, including depression, anxiety issues, drug use, suicide

attempts, eating disorders, and so on. In that sense, all of these difficulties are again made relevant, in the assessment of the importance of
that one question and answer. In other words, had Mr. Linden answered that question truthfully, details about many or all of these
conditions would have surfaced; furthermore, their seriousness and long-standing nature would have been clarified.
49

I reach the same conclusion in relation to the question regarding treatment or advice regarding the use of drugs. At the time he

answered these questions, Mr. Linden had received treatment for the use/abuse of prescription drugs. The evidence discloses numerous
discussions between Mr. Linden and health care professionals, over the course of years, regarding his drug use/misuse, as well as

recommendations and treatment plans. For example, in 2004 Mr. Linden spoke to Dr. Khan about his concerns regarding his possible
misuse of prescription medication (which concern he spoke of many times). On this occasion he was advised to attend detox.
50

Mr. Linden answered "no" to both of these simple, unambiguous questions. These are, clearly, misrepresentations on the part of Mr.

Linden. I cannot say if they were deliberate on his part, nor do I have to. It is possible that Mr. Linden forgot, or did not think they were
important. That does not relieve him from his duty to disclose. Even innocent or inadvertent omissions can invalidate a contract of
insurance, I reproduce author Norwood's oft-quoted statement, at p. 247:

The misrepresentation of the known fact may have been due to negligence on the part of the insured or life insured, where he meant to
disclose it, but did not actually do so,. It may have been due to forgetfulness on his part, where the material fact genuinely escaped his

memory. It may have been due to mistake on his part, where he believed that he had disclosed it to the insurer on a previous occasion, or
where he believed that the insurer was already in possession of the fact of its own knowledge. It may have been due to misjudgement on
his part, where he felt that the fact was not really significant and he did not therefore consider it important to relate it to the insurer.

Regardless of the good faith of the insured or life insured, all such misrepresentations, however innocently made and regardless of the

genuine lack of appreciation of materiality, will entitle the insurer to avoid the contract as long as the misrepresentation is of a fact known to
the insured or life insured which would be regarded by a reasonable insurer as material to the risk.
51
52

I therefore conclude that Mr. Linden did in fact misrepresent facts in relation to his health, to the respondent.

In relation to the materiality of the non-disclosure, I must now determine whether those facts would have affected either the premium

or the risk for the insurer. This is a question of fact for this Court, and the test is objective. There exists authority for the proposition that
expert evidence is very much appropriate and helpful in such cases. (See Norwood, supra; Walsh v. Unum, supra). I would agree.

However, that is not the only way that materiality can be shown. I note the case of Henwood v. Prudential Insurance Co. of America, [1967]
S.C.R. 720 (S.C.C.), where the Supreme Court of Canada held that senior officials from the insurance company itself could also testify as
to their practice and policies in relation to certain information, as to whether it would affect their premium or acceptance of the contract.
53

This was the case here, and the court did have the benefit of that evidence. The court must also consider whether the insurer's

position is objectively reasonable in the circumstances. I find that the misrepresentations noted here were clearly material. They were the
subject of specific questions on the form, thereby objectively demonstrating their importance to the respondent. They related to

fundamental issues relating to a person's health, i.e. hospitalization and treatment, and the use/abuse of drugs. Accurate answers to these
questions would have led the respondent to details and information relating to the extent of Mr. Linden's health difficulties. Had Mr. Linden

answered those questions accurately, there is no doubt that the respondent would have been assessing a very different application. It is my
conclusion that a reasonable insurer, given this information, would clearly have required a higher premium or declined the risk. It is on that
basis that I find the contract was voided by Mr. Linden's misrepresentations, and I dismiss the applicant's claim.
54

As a point of clarification, I note that within the Joint Exhibit Books, was information relating to Mr. Linden's health difficulties post-

March 23, 2011. I confirm that these documents were not considered by this Court in reaching this decision, as I found them of no
relevance in this particular case.
55

If the parties are unable to reach agreement as to the issue of costs, I would invite written submissions from counsel.

Claim dismissed.