BARRY v INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC (IAF), 2022 ABQB 265
6.3: Applications generally
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
The Applicant was the beneficiary of her deceased husband’s life insurance policy which was purchased from the Respondent. The Applicant’s husband died in 2015 in Burkina Faso. The Respondent denied the Applicant’s claim under the life insurance policy in reliance on reports that it received from a third-party investigation firm which suggested that the Applicant’s husband was not deceased. The Applicant therefore applied for Summary Judgment seeking payment under the life insurance policy.
The primary issues on the Summary Judgment Application were: (1) defects in the Applicant’s Application; (2) the standard for obtaining Summary Judgment; and (3) reliance on hearsay in the context of Summary Judgment.
With respect to the first issue, the Respondent argued that the Applicant did not identify all of the sections of the Insurance Act, RSA 2000, c I-3 and Surrogate Rules, Alta Reg 130/1995 in her Application, as required by Rule 6.3(2)(d). The Court observed that the purpose behind Rule 6.3(2), which contains the caveat “[u]nless the Court otherwise permits”, is to avoid surprise and allow the Respondent to meet the case against it. The Court held that the defects here were excusable. First, because the Respondent was a professional litigant and experienced in this specific area of law. Second, because the Applicant filed a lengthy Affidavit and written Brief which fully disclosed her argument. There was no issue of surprise.
With respect to the general standard on Summary Judgment applications, the Court referred to Rules 7.2 and 7.3 which set out the basis upon which Summary Judgment may be granted. Justice Feasby referred to the key considerations set out in Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49: (a) do the state of the record and the issues allow for a fair resolution on a summary basis, or do uncertainties reveal a genuine issue requiring trial? (b) Has the Applicant met the burden of showing that there is either “no merit” or “no defence” on a balance of probabilities? (c) If the Applicant has met its burden, the Respondent must put its best evidentiary foot forward to demonstrate a positive defence or a genuine issue for trial.
Regarding the third issue, both parties sought to rely on hearsay. The Respondent argued that Rule 13.18(3) precludes the Applicant from relying on hearsay but does not apply to respondents. The Court held that Rule 13.18(3) requires some flexibility and does not constitute an absolute bar on hearsay evidence. Rather, it has been interpreted to require the Court to consider whether the hearsay is of that type that would be admissible at Trial because of its reliability and necessity, for example. Further, Justice Feasby held that although Rule 13.18(3) does not apply to respondents, that does not mean that respondents may, as of right, rely on hearsay evidence; rather, respondents must still put their best evidentiary foot forward.
Justice Feasby did not admit the Respondent’s evidence for the truth of its contents. The evidence’s defects were numerous and material and could have been easily rectified. Similarly, the Court did not admit certain portions of the Applicant’s evidence in instances where the Applicant could have easily obtained an Affidavit from the individuals making the hearsay statements. Justice Feasby did admit some of the Applicant’s hearsay evidence where the criteria of necessity and reliability were met.
With the Respondent’s evidence entirely excluded, the only evidence on the record was the Applicant’s. The Court therefore held that the Applicant’s husband was in fact deceased and that the life insurance proceeds were payable by the Respondent. The Court also exercised its discretion and ordered that interest accrue at a rate above what is set out in the Judgment Interest Act, RSA 2000, c J-1 and further, that Costs were payable on a 75% indemnity basis due to the Respondent’s litigation misconduct.View CanLII Details