Action On Critical Illness Insurance Dismissed As Signs of Cancer Appeared Within 90 Days of Policy

Insured’s action against insurer on a policy of critical illness insurance was dismissed on the basis that the insured’s cancer showed signs of developing within 90 days of the effective date of the policy thereby triggering a 90-day exclusion clause.

MacQuarrie v. National Bank Life Insurance Co., [2014] O.J. No. 4130, February 27, 2014, Ontario Superior Court of Justice, M.A. Sanderson J.

The insured sought payment on a policy of critical illness insurance issued to him by the insurer. The insurer offered the insured the insurance on December 22, 2008. In May 2009 the insured underwent surgery for thyroid cancer. The insured then made a claim on his critical illness insurance.

The insurer denied liability on the basis of the insured’s failure to disclose a sleep apnea condition during his application. The insurer took the position that it would not have issued the policy had it known about the insured’s sleep apnea. The insurer later denied liability on the basis of two exclusions contained in the policy: (1) pre‑existing conditions and (2) the 90‑day exclusion.

The Court did not accept the evidence that the insurer would have declined coverage if the insured had disclosed his sleep apnea condition. The Court held that the pre‑existing condition exclusion did not apply because, before the effective date of the insurance, the insured had not consulted a physician or healthcare professional to discuss the possibility of thyroid cancer.  He did not receive treatment for thyroid cancer before the effective date of the policy. However, the Court held that the first signs of thyroid cancer began within 90 days of the effective date of the policy and therefore the 90‑day exclusion applied. In the result, the insured’s action against the insurer was dismissed.

This case was originally summarized by Cameron B. Elder, and originally edited by David W. Pilley of Harper Grey LLP.

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