“Sorry, We Don’t Cover That” – Exclusion Clauses in Long Term Disability Policies

Someone filling out Long term Disability Insurance Application Form.

“Sorry, you’re not covered”.
“Wait. How come?”
“If you look at your policy, there is a list of exclusion clauses and unfortunately, you fell into one of the categories”.
“Exclusion what?”

The above hypothetical conversation between an insured person and an insurance representative is an unfortunate reality for many disabled claimants. Often colloquially referred to as the “fine print of the contract”, exclusion clauses are provisions that are intended to preclude coverage for certain sets of circumstances and types of losses. They are almost always included in disability policies and other types of insurance policies.

By deconstructing the purpose of an insurance contract, the rationale underlying exclusions becomes abundantly clear. An insurance contract effectively outlines and explains the allocation of risks between parties. By expressly exempting liability in certain circumstances, exclusion clauses are an extension of the principle of risk allocation. Essentially, the insurer attempts to eliminate any potential burden that may arise from a set series of circumstances by contracting out of what are deemed to be unreasonable or unfair risks. For example, the following scenarios, which if led to disabilities, would arguably not warrant coverage under a typical long-term disability (LTD) policy:

    • The commission or attempted commission of a criminal offence;
    • Active participation in a riot;
    • Disability caused during incarceration;
    • When an insured person fails to remain under continuing medical care, e.g. refusing to participate in a rehabilitation program or psychological assessment;
    • Disability due to war, declared or undeclared, or any act of war;
    • Workplace injuries that can be made under a WSIB claim;
    • Illnesses that arise within the first 90/365 days of the effective date of the policy;
    • Intentionally self-inflicted injuries; and
    • Pre-existing conditions.

As long-term disability insurance litigation is based on the specific contract that the parties agreed to, the resolution of a claim is dependent on the contract’s interpretations and the principles that form the lens under which the contract is viewed. As such, the most fruitful starting point for understanding the nuances of exclusion clauses is an examination of the fundamental substantive and interpretive principles of insurance law. By appreciating this theoretical foundation, an understanding of the pragmatic approach to interpreting exclusion clauses can be facilitated. Subsequently, the most commonly invoked exclusion clause, “pre-existing conditions”, and developments in the relevant jurisprudence will be examined.

I. Substantive and Interpretive Principles of Insurance Law

The language of a contract is always the first and most important matter to be examined in interpreting its terms.[1] The words that have been used in the insurance policy must first be interpreted in a manner that gives effect to the true and reasonable intentions of the parties at the time of entering into the contract.[2] A Court will read an insurance policy as a whole and give effect to the clear language of a policy where it is unambiguous.[3] Where words may appropriately be interpreted in more than one way, the more reasonable one, which bears a fair result, shall be deemed as the interpretation that would promote the parties’ intentions.[4]

If the words in a policy are clear and unambiguous, then they will be given their “ordinary meaning”.[5] The question of whether the words are clear will be determined on the basis of what an ordinary reader would likely intend considering the type of risk that the insurer is agreeing to accept. Consequently, the language in a policy will be construed in a manner that is consistent with ordinary policyholders’ expectations and intentions.

On the flip side of the coin, where there is ambiguity in the interpretation of a LTD policy, litigation often diverts from the predictable black-and-white determination of claims to a grey realm where adjudication may be required to resolve the ambiguity. When the meaning of an exclusion provision in an insurance contract is unclear and allows for more than one reasonable interpretation, the Court will rely on the applicable interpretive and substantive principles of insurance law to guide their analysis and determination of whether or not coverage shall be rightfully precluded.

The Supreme Court of Canada has expressed on a number of occasions that coverage provisions should be construed broadly and exclusion clauses should be construed narrowly.[6] As exclusion clauses restrict the scope of coverage provided by the policy and create exceptions to it, they are narrowly interpreted and construed against the insurer. In addition to this strict construction principle, the Courts have invoked the doctrine of contra proferentem when confronted with cases of ambiguity.

The Courts have repeatedly expressed their willingness to apply the maxim, verba fortius accipiuntur contra proferentem (“words must be construed against those who use them” or in other words, a contract must be interpreted against the party that drafted it). The judiciary’s inclination to use this doctrine can be attributed to the Courts’ recognition of the stark dichotomy in bargaining power, sophistication and comprehension between an insured person and an insurer. Essentially, the Courts will construe ambiguity in favour of the insured, and against the party that drafted the agreement and is looking to avoid liability.[7] However, the doctrine of contra proferentem cannot be raised with respect to the statutory terms of a contract.[8]

When presented with ambiguity, the Courts also consider the reasonable expectations and intentions of the parties at time they entered into the policy.[9] The Ontario Court of Appeal has gone further and stated that a policy should be construed consistently with the reasonable expectations of the insured person regarding coverage when there is ambiguity in a policy.[10] This begs the question: what are the reasonable expectations of an insured person? The Supreme Court of Canada has provided some guidance by suggesting that: at a minimum, an insured person can reasonably expect that their insurance plan will provide coverage for legitimate claims on a continuing basis.[11]

The onus is on the insurer to show that an exclusion clause applies.[12] Where there is ambiguity after a plain reading of the words and reference to the policy as a whole, the insurer is entitled to call evidence to show that it intended one of the alternate meanings to prevail.[13] Plaintiff’s counsel can ensure that his or her client obtains disability coverage and the appropriate benefits under a policy by properly utilizing the abovementioned doctrines and marshaling the appropriate evidence when confronted with a denial due to an exclusion clause.

II. Pre-Existing Conditions

a) Typical Pre-Existing Conditions Exclusion Clauses

As mentioned above, LTD policies often contain a standardized provision for exclusion or restriction of coverage on the basis of pre-existing conditions. There is a clear economic justification for this stipulation. Insurers want to hedge themselves from the high number of claims and potentially exorbitant funds that would be allocated to individuals, with pre-existing conditions, when they join an employee benefit plan or sign on to an individual disability plan. The addition of exclusion clauses also stems from insurers’ recognition that disability is normally a prolonged event in instances involving degenerative conditions or diseases—as opposed to traumatic injuries which are individual isolated events. Due to these rationales, insurers have included a number of policy terms to curtail the possibility of an insured person reaping benefits due to a pre-existing condition.

A standard “pre-existing conditions exclusion clause” may look similar to the one provided below:

Benefits are not payable for any disability which begins within the employee’s first 12 months of coverage, if the disability results directly or indirectly from any sickness or injury for which the employee was treated or attended by a physician, or for which prescribed drugs were taken within 90 days prior to the effective date of coverage.

Pre-existing conditions exclusion clauses typically stipulate that: if an insured person has been treated for a particular illness or has underwent a consultation for a particular illness within a certain period of time prior to obtaining insurance coverage, and that illness causes or contributes to the insured’s disability within a designated period of time, then the insured will be ineligible for receiving disability insurance benefits under the policy. Once an insurer denies coverage, it bears the onus of showing that the exclusion clause applies[14] and that there is a causal link between the prior illness or injury and the resulting disability.

A pre-existing conditions provision may also take the following form:

This policy will end and we will not make a payment to the critical illness benefit payee if the insured person had a covered critical illness or any symptoms associated with the covered critical illness before the later of[15]

This exclusion clause goes beyond simply mentioning an illness. It also includes “symptoms associated with the covered critical illness”. This bipartite exclusion clause was elaborated upon by the Alberta Court of Queen’s Bench in Duke v. Clarica Life Insurance Co.[16] The first part of the exclusion clause was labelled as an “Illness Exclusion”, which applied if the insured person had a covered critical illness before the date the policy came into effect.[17] The second part of the exclusion was considered a “Symptoms Exclusion”, which applied if the insured person had any symptoms associated with a covered critical illness before the date the policy came into effect.[18]

Here, Mr. Duke took out a critical illness policy. He was required to undergo a medical examination for his job. He passed his medical examination. It was noted that he was experiencing difficulties with decreased function in one arm and leg, which he ascribed to age and the injuries he sustained in a prior snowmobile accident. Approximately, a month after the issuance of the policy, Mr. Duke developed vision problems. Medical investigation determined that his symptoms were actually symptoms of Parkinson’s disease, which was covered by the critical illness policy.

Mr. Duke’s insurer denied his claim on the basis of an exclusion clause. The provision stated that Mr. Duke’s claim would not be honoured if he had “a covered critical illness” or “any symptoms associated with a covered critical illness before the date the Policy came into effect”.[19]

Neither Mr. Duke nor his treating or assessing physicians associated his functional issues relating to his arm and leg with Parkinson’s disease until after the policy was issued. Ultimately, the case boiled down to whether “associated with a covered critical illness” necessitated an association between the symptoms and the illness or merely required there to be symptoms associated with the illness—regardless of whether or not they were recognized.

In Duke, the word “associated” in the exclusion clause was deemed as participial adjective, rather than past tense verb. The Court found that the requisite timing of the association of the symptoms with the covered critical illness to be unclear from a plain reading of the exclusion clause. Ultimately, it was ruled that it was unclear whether Mr. Duke’s symptoms of Parkinson’s disease before the policy was issued would exclude coverage—regardless of whether or not anyone made an association between the symptoms and Parkinson’s disease before the policy was issued. Hence, the exclusion clause was declared to be ambiguous and construed in favour of Mr. Duke’s interpretation that the symptoms had to be associated with the critical illness before the policy came into effect.

Prior to Duke, the life insurance case of Hoult Estate v. First Canadian Insurance Corp.[20] served as a seminal case with respect to the interpretation of ambiguous exclusion clauses and the issues of the objective presence and a Plaintiff’s knowledge of pre-existing conditions. In Hoult, the exclusion clause and the definition of “pre-existing illness, disease or physical condition” are provided below, respectively:

The insurer shall have no liability except to refund unearned premiums in the following circumstances…(ii) where the death or disability of the person covered results from a Pre-existing illness, Disease, or Physical Condition…”.

… illness, disease or physical condition for which medical diagnosis, advice, consultation, service or treatment was acquired or recommended on or within a six (6) month period immediately preceding the Effective Date of Insurance and which recurs within six (6) months subsequent to the Effective Date of Insurance.[21]

In Hoult, the group life insurance policy was taken out by the insured at the time of his purchase of a motor vehicle. The policy provided that in the event that the insured or his wife die during the coverage period, the insurer would pay an amount equal to all indebtedness owing under the loan agreement relating to the motor vehicle purchase.

Mr. Hoult died of lung cancer approximately 2.5 months after his coverage began. When Mr. Hoult applied for life insurance, he confirmed that he was “presently in good health”.[22] During the two months prior to the application, he saw his doctor 3 times to complain of chest congestion and breathing difficulties. His doctor diagnosed him as suffering from a cold or a mild case of bronchitis, which later responded to treatment. Two days after the application, Mr. Hoult underwent an X-ray which led to the diagnosis of pneumonia or possibly lung cancer. He also had been diagnosed with bladder cancer 15 years earlier, but this went into remission after radiation treatment. After he passed away, it was determined that the lung cancer from which he died was not associated with his earlier bladder cancer.

First Canadian Insurance denied coverage due to an exclusion provision in the policy and the contention that Mr. Hoult made a material non-disclosure and/or misrepresentation at the time of signing the certificate of insurance, where he affirmed that he was in good health on that date.

Given the facts, Justice Trainor was satisfied that neither Mr. Hoult nor his doctor knew or suspected that he had lung cancer prior to the date of coverage. Only with the benefit of hindsight was the discovery made that Mr. Hoult’s visits to his doctor were not for the treatment of respiratory issues, but in actuality, for symptoms of his cancer.

Ultimately, the Court held that the exclusion clause was ambiguous as it was unclear whether the term applied broadly to include pre-existing symptoms of subsequently diagnosed serious conditions or narrowly to only cover pre-existing diagnosed conditions.[23] The Court resolved the ambiguity in favour of Mr. Hoult. The Court held that the interpretation that was favourable to Mr. Hoult required proof of knowledge of the pre-existing condition at the pertinent pre-coverage time period. As there was no evidence to this effect, the Defendant did not discharge its onus in proving that Mr. Hoult received or was recommended a “medical diagnosis, advice, consultation, service or treatment” with respect to the cancer prior to the issuance of the policy.

In addition, the Court ruled that Mr. Hoult could not have been found to have failed to disclose or to have misrepresented facts because he did not know those particular facts at that specific time.[24] Mr. Hoult’s failure to disclose a diagnosis of a cold or mild case of bronchitis did not amount to a material non-disclosure. The Court found that the disclosure of this diagnosis would not have prevented the insurer from bearing the risk and issuing the insurance policy.

The recent case of MacQuarrie v. National Bank Life Insurance[25] shed light on the issue of unexpected findings of cancer when unrelated tests are conducted. In MacQuarrie, the effective date of the critical illness insurance policy was September 11, 2008. Three days prior, Mr. MacQuarrie underwent an MRI of his neck and paranasal sinuses where a nodule was accidentally discovered. This led to a thyroid ultrasound in October 2008. Mr. MacQuarrie attended his first consultation on November 11, 2008. He was diagnosed with thyroid cancer in May 2009.

The Court was tasked with determining whether there were any consultations, tests, medications or hospitalization for thyroid cancer or the effects of thyroid cancer prior to September 11, 2008. The pre-existing conditions clause in the policy read as follows:

Pre-existing conditions: the effects of a Sickness and/or symptoms or Accident when Death, Disability, Critical Illness or Accidental Dismemberment occurs during the 12 months following the effective date of the Insurance and for which Sickness and/or symptoms, injury or any related cause, resulting directly or indirectly from the Accident or Sickness, the Insured, during the 12 months that preceded the effective date of the insurance, had consulted or received treatment from a physician or other health care professional, underwent tests, took medication or was hospitalized. [emphasis in original][26]

The Court found that the Plaintiff neither consulted a physician or health care professional to discuss the possibility of thyroid cancer prior to the effective date of the policy, nor received treatment for the illness. Despite the fact that the September 8, 2008 MRI had a positive finding for a nodule, which would later be diagnosed as cancerous on May 8, 2009, Justice Sanderson declared that the insurer could not demonstrate that Mr. MacQuarrie underwent consultations, tests or medications specifically for thyroid cancer or its effects prior to September 11, 2008. The Court found that the tests that took place prior to September 11, 2008 were not specifically targeted to thyroid cancer, but rather the Plaintiff’s sinus issues.[27] As such, this particular exclusion clause did not apply. Unfortunately for Mr. MacQuarrie, there was a 90-day (post-effective coverage date) exclusion clause which applied to the particular circumstances at hand and his action was dismissed.[28]

MacQuarrie can be helpful to Plaintiff’s counsel in the event that a client has an accidental finding in the pertinent time period prior to the effective coverage date of a policy. Essentially, the exclusion clause will not apply if the Plaintiff and his/her treating or assessing physicians are not specifically targeting the illness and do not associate the symptoms to the illness (which later arises) in the pre-coverage period.

Most recently, an Alberta school teacher’s entitlement to long-term disability benefits hinged on the Alberta School Employee Benefit Plan’s definition of a pre-existing condition. In the case of Tyson v. Holloway,[29] Ms. Tyson sought disability benefits following her diagnosis of a brain tumour, which occurred only 3 days into her teaching contract and effective coverage date. Her official date of coverage commenced on September 10, 2012—after she started a probationary teaching contract with the Calgary Board of Education on that same day. She had suffered from headaches, dizziness and nausea since July 1, 2012, but did not learn of the brain tumour until September 13, 2012. Her doctors initially attributed her symptoms with a diagnosis of migraines. Ms. Tyson eventually filed a total disability claim under the plan on November 27, 2013.

The relevant exclusion provisions read as follows:

Pre-existing Condition means an accidental injury or illness for which an Employee received medical attention, consultation, diagnosis, or treatment during the 12 months before the Employee became covered under This Plan.

The following Pre-existing condition clause applies to all eligible Employees who commenced employment on or after August 15, 1990…:

No benefit is payable if Total Disability is related to a Pre-existing Condition and begins within 26 weeks of the Employee’s initial effective date of coverage or any subsequent effective date of coverage following a lapse in coverage.[30]

The Alberta School Employee Benefit Plan opposed Ms. Tyson’s claim for benefits as it considered the earlier symptoms as a definitive indication that the brain tumour was a pre-existing condition. Ms. Tyson contended that her previous medical consultations did not conclusively reveal a brain tumour. That is, the consultations were general in nature and not targeted towards a suspected and specific illness (i.e. the brain tumour). Further, she argued that she only learned of the diagnosis after her coverage had already begun.

In Tyson, both parties presented different, yet reasonable, interpretations of the word, “diagnosis”. Specifically, Ms. Tyson believed that the word “diagnosis” should have been construed as the definitive statement of the disease whereas the Plan maintained that the definition inherently involved the “diagnostic process”. [31] Interestingly, both parties emphasized the fact that the “ordinary meaning” of the word “diagnosis” was supported by the dictionary definitions that they presented to the Court.[32]

Justice Graesser was satisfied that both parties provided competing, credible and reasonable interpretations of the exclusion clause.[33] As such, the Court held the opposing interpretations rendered the wording of the exclusion ambiguous. Therefore, the doctrine of contra proferentem and the principles of “standard insurance policy interpretation” demanded that the ambiguity be resolved against the intentions of the policy drafter. The exclusion clause did not apply. Ms. Tyson was entitled to coverage under the policy.

Pre-existing conditions cases are often fundamentally based on factual issues. Therefore, it is absolutely vital to check the wording of the policy and understand how “pre-existing condition” is defined. In many instances, the insurer will be right: an insured’s disability is due to a pre-existing condition and they should be denied coverage pursuant to the terms of the policy. However, in other instances, Plaintiff’s counsel can establish that the exclusion clause should not apply and that his or her client is entitled to coverage by: 1) invoking the doctrines of strict construction and contra proferentem; and 2) marshalling the appropriate evidence which speaks to the chronology of events, the causal link between the disability and pre-existing condition(s), and alternate reasonable interpretations of the terms in the policy. Depending on the policy’s wording, a “pre-existing illness” exclusion may signify pre-existing symptoms of subsequently diagnosed conditions or may be restricted to pre-existing diagnosed conditions. The abovementioned cases show that in most instances, an insured must have some diagnosed medical condition, and the symptoms must be apparent and diagnosed within the relevant time period prior to the effective date of the policy.

b) Concurrent Causes of Disability

In the New Brunswick case of St-Laurent v. Sun Life Assurance Co. of Canada,[34] Mr. St-Laurent’s policy excluded coverage as he received “medically required services” for an illness in the first 13 weeks of coverage. Specifically, he was totally disabled by arachnoiditis, which causes severe back pain, and ischemic heart disease. Mr. St-Laurent received Demerol injections for his back pain. The Court of Appeal agreed with the finding of the Court of Queen’s Bench that the injections were under the direction of a physician and therefore, constituted “medically required services”. With respect to Mr. St-Laurent’s self-administration of prescription drugs for his ischemic heart disease, the Court of Appeal was not convinced that this act constituted “medically required services” for the purposes of the policy. The Court found that the term, “medically required services”, implied a degree of immediate control by a medically trained person and required “something more than the mere taking of a prescribed medication”.[35]

As such, the Court of Appeal had to determine whether the injections of Demerol, a medically required service, on a standalone basis, allowed Sun Life to invoke the exclusion clause. The Court of Appeal found that the exclusion clause was ambiguous as it did not encompass the specific circumstances at hand, i.e., where one of the contributing illnesses that caused the total disability did not receive medically required services in the 13ltd-week period. Essentially, it was incumbent upon Sun Life to have more clearly worded the language of the exclusion provision to prevent this unique situation. Ultimately, the Court of Appeal applied contra proferentem and resolved the ambiguity in favour of Mr. St-Laurent. The Court refused to give effect to the exclusion provision.

The implications of St-Laurent are significant as it effectually provides an open window for a claimant, when the front door has been shut. Specifically, St-Laurent stands for the proposition that when there are two concurrent causes of disability and one of them is explicitly excluded from coverage, it does not automatically invoke the total exclusion of coverage.[36] In these circumstances, a presumption of excluded coverage is inconsistent with the principles of narrowly construing exclusion clauses and interpreting the ambiguous terms in the policy in favour of the insured person.[37]

Similarly, in the case of Clarke v. National Life Assurance Co. of Canada, the Court was presented with potentially overlapping causes of total disability. The Court was presented with ample medical evidence regarding the insured’s history of alcoholism, weight loss, sleeping difficulties, anxiety, depression, emotional fragility, personality disorder, diabetes and smoking. Mr. Clarke drank an average of 3 dozen beers per week over a period of 20 to 30 years. Given his excessive alcohol consumption, the Court had to determine the proximate cause of disability and decide whether the alcoholism was a cause, effect or exacerbating factor with respect to Mr. Clarke’s total disability. In other words, was Mr. Clarke’s alcoholism secondary to his psychological issues or was his pre-existing alcoholism grounds for excluding coverage based on the policy’s alcoholism and substance abuse exclusion clause?

Despite Mr. Clarke’s drinking, his health never wavered because of it. His problems at work and coping with the demands of his job led to his psychological issues and weight loss. The Court found that his drinking in response only served to increase his stress and frustration. Justice Charron held that Mr. Clarke’s alcoholism definitely played a role and likely exacerbated his condition, but it was not the proximate cause of his disability. Clarke provides support for the St-Laurent proposition outlined above and further urges Plaintiff’s counsel to marshal the appropriate medical evidence and expert opinions to allow the Court to make an informed determination when confronted with overlapping proximate causes of disability.

III. Conclusion 

Policy! Policy! Policy! The starting point for Plaintiff’s counsel is obtaining and reading the insurance policy and/or the benefits booklet. There will be times where the ordinary meaning of an exclusion clause is unambiguous and your client clearly falls within the purview of the exclusion provision. However, there will also be instances where terms will be ill-defined and provisions will be ambiguous. It is in this latter situation, where the nuanced nature of LTD litigation materializes.

By diligently gathering the appropriate evidence which outlines: the chronology of events and medical milestones, the causal connection between the disability and the pre-existing condition(s), and alternate reasonable interpretations of the terms in the policy (e.g. through references to dictionary definitions), Plaintiff’s counsel will have effectively constructed a factual foundation to build its legal argument upon. By incorporating the doctrines of strict construction and contra proferentem, and the jurisprudence that outlines its judicial application, Plaintiff’s counsel can reinforce this foundation and convincingly contend that the exclusion clause should not apply.

[1] Somersall v. Friedman, 2002 SCC 59 at para. 46.

[2] Bird Estate v. Canada Life Assurance Co., 2001 CarswellOnt 4076 (ONSC) at para. 21 and Brissette v. Westbury Life Insurance Co., [1992] 3 SCR 87 at para. 4.

[3] Duke v. Clarica Life Insurance Co., 2007 ABQB 233 at para. 82 citing Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 SCR 551 at para. 71.

[4] Ibid citing Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 SCR 888 at para. 26.

[5] Gibbens v. Co-operators Life Insurance Co., 2009 SCC 59 at paras. 20-22 and Andreychuk v. RBC Life Insurance Co., 2008 BCCA 492 at para. 47.

[6] Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 SCR 10 at para. 37; Monenco Ltd. v. Commonwealth Insurance Co., [2001] 2 SCR 699 at para. 11; and Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 SCR 551 at para. 70.

[7] Abdulrahim v. Manufacturers Life Insurance Co., [2003] OJ No 2592 at para. 31 citing Somersall v. Friedman, 2002 SCC 59, Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 SCR 551 and Derksen v. 539938 Ontario Ltd., 2001 SCC 72.

[8] Goodwin v. Insurance Corp. of British Columbia, 1993 CarswellBC 252 at para. 21.

[9] Reid Crowther & Partners Ltd. V. Simcoe & Erie general Insurance Co., [1993] 1 SCR 10 at para. 43 and Brissette v. Westbury Life Insurance Co., [1992] 3 SCR 87 at para. 58.

[10] Bird Estate v. Canada Life Assurance Co., 2001 CarswellOnt 4076 (ONSC) at para. 21 citing Chilton v. Co-operators General Insurance Co., [1997] OJ No 579 (ONCA) at para. 28.

[11] Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 SCR 10 at para. 43.

[12] Supra note 10 citing Sullivan Entertainment Inc. v. General Accident Assurance Co. of Canada, [1998] O.J. No. 2214 (Ont. Gen. Div.) at para. 12.

[13] Supra note 7 at para. 32 citing Alampi v. Swartz, 1964 CarswellOnt 87 (ONCA) at para. 13.

[14] Bird Estate v. Canada Life Assurance Co., 2001 CarswellOnt 4076 (ONSC) at para. 21.

[15] Duke v. Clarica Life Insurance Co., 2007 ABQB 233 at para. 44 [Duke].

[16] Ibid.

[17] Ibid at para. 45.

[18] Ibid.

[19] Ibid at para. 4.

[20] 1994 CarswellBC 841 [Hoult].

[21] Ibid at paras. 3-4.

[22] Ibid at para. 2.

[23] Ibid at para. 19.

[24] Ibid at para. 26.

[25] 2014 ONSC 1298.

[26] Ibid at para. 108.

[27] Ibid at para. 112.

[28] Ibid at para. 116-121 and upheld in MacQuarrie v. National Bank Life Insurance Co., 2015 ONCA 100.

[29] Tyson v. Holloway, 2016 ABQB 284.

[30] Ibid at para. 20-21.

[31] Ibid at para. 93.

[32] Ibid at para. 97.

[33] Ibid at para. 104.

[34] [1988] NBJ No 621 (NBCA) [St-Laurent].

[35] Ibid at para. 12.

[36] Derksen v. 539938 Ontario Ltd., [2001] 3 SCR 398 at para. 46 and St-Laurent v. Sun Life Assurance Co. of Canada [1988] NBJ No 621 (NBCA) as cited in Tanious v. Empire Life Insurance Co., 2016 BCSC 110 at para. 233-235.

[37] Ibid.

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