Eric's LTD Update - Summer 2020

• Published date: 12 August 2020
• Subject Matter: Insurance, Insurance Laws and Products
• Law Firm: Blaney McMurtry LLP
• Author: Mr Eric J. Schjerning

I hope that everyone reading this is healthy and has coped relatively well during this pandemic. I know many of you have been heavily impacted: childcare issues, cancelled dream vacations weddings (including in one case a lawyer's own!) and other big social events, lost school graduation ceremonies for your children...the list is endless. I feel badly for everyone who has been impacted and only wish it had not happened. My family has been quite fortunate as both sons in University have kept their very good summer jobs and my wife and I had a very light travel/social calendar in 2020. COVID-19, with the closure of most courts for extended periods, has also impacted this update as there are very few cases to report. The cases I can comment on in this update relate to misrepresentation and date of diagnosis. While not LTD specific, they do have applicability to certain LTD situations. While I know of some LTD specific cases in the Court pipeline, they remain stuck there.

Hopefully by the time of my next update our Courts, and our lives, are more or less back to normal. Until then, stay well and I look forward to seeing you (via Zoom or Webex, or maybe even in person!)

Please keep sending me case law as this allows me to fulfill the purpose of this update: to present you with all decided cases so that you can either pound the counsel table with cases supportive of your position, or think up ingenious ways of distinguishing cases which are unfavourable to you.

Index

A) Date of Diagnosis

• Manley v. Manulife

B) Misrepresentation

• Kulp v.Cumis Life Insurance
• Mohammad v. Manulife

A) Date of Diagnosis

Manley v. Manulife 2020 ONSC 399 (CanLII) (O.S.C.J.)

Approximately 2 months after writing Manulife to cancel his critical illness policy, the insured ("M") was diagnosed with kidney cancer. M argued that as his condition (the tumour) had been slowly growing inside him for years, it "arose" before the policy had been cancelled and the benefit was payable. Manulife countered that the condition was not diagnosed until after the policy cancellation and brought a motion for summary judgment.

Held: For Manulife. The policy terms specified that the benefit was payable when an insured suffers a diagnosis, and the motions judge did not find this term ambiguous. (Eric's note: Query whether this reasoning of when a condition arose cannot be applied to other areas of LTD insurance, such as pre-existing condition exclusions).

B) MISREPRESENTATION

Kulp v. Cumis Life Insurance...