– Walsh v. Unum Provident, 2013 NSCA 12.

Unum, the insurer, and its predecessors provided disability coverage to Walsh, dating back to 1993. In 2000, a claim for “major depression disorder” was filed and, for a time, honoured. Unum then questioned Walsh’s ongoing disability and stopped paying. Walsh commenced action against Unum. In preparing for trial, Unum secured and reviewed Walsh’s medical records. It noted a litany of undisclosed health problems that pre-dated the application for coverage, including heart problems, headaches, seizures, anxiety, and back problems. Unum further concluded that, had these problems been known, they would have affected its decision to offer coverage. Unum ultimately viewed these as fraudulent material misrepresentations prompting it to then challenge the actual coverage. It therefore counterclaimed seeking (a) a declaration that the policy was void from the outset, (b) the return of its money with interest, and (c) legal costs.

At trial, Justice Pickup found entirely in Unum’s favour. Specifically, he accepted Unum’s counterclaim in its entirety including the return of all benefits paid plus interest. Alternatively, he found that Walsh was not disabled under the policy, thereby affording Unum a full defence to the claim proper. Walsh then appealed to the Court of Appeal, which dismissed the appeal, essentially by adopting the judge’s reasoning in its entirety on the fraudulent material misrepresentation issue. The court noted that Justice Pickup had correctly articulated the law as it related to material representation and then applied “unassailable” factual findings – many of which went directly to Walsh’s credibility – which were solidly supported by the evidence. The court also noted that the insurer’s health questions were unambiguious and that the plaintiff offered no evidence of being confused by them.