Thursday, April 3, 2014

Relief from forfeiture under insurance policy

Lavoie v. T.A. McGill Mortgage Services Inc., 2014 ONCA 257 holds that relief from forfeiture may be available where an insurance contract is imperfectly complied with but not where a conditional precedent to the policy fails. Basically those items are distinguished by the seriousness of the failures:

[42]       This court noted, at para. 40 of Kozel, that when a breach constitutes imperfect compliance with a policy term, relief under s. 98 of the Courts of Justice Act is available. In contrast, if the breach amounts to non-compliance with a condition precedent to the insurance policy, relief under s. 98 is not available. This court indicated, at para. 41, that the focus in this analysis "is on whether the breach of the term is serious or substantial. Where the term is incidental, its breach is deemed to be imperfect compliance; where the provision is fundamental or integral, its breach is cast as non-compliance with a condition precedent." On the facts inKozel, this court held that the contractual language describing the term as a condition was not conclusive, and that the lapse of the licence amounted to imperfect compliance with a policy term rather than non-compliance with a condition precedent.

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