A-88-77
Green Forest Lumber Limited (Appellant)
v.
General Security Insurance Company of Canada
(Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, April 5, 6 and 7; Ottawa, April 21,
1978.
Maritime law — Insurance — Appeal from dismissal of
appellant's action seeking a declaration that it was the proper
owner of and beneficiary under an insurance policy respondent
was obliged to issue — Trial Judge's findings of fact amply
supported by evidence — Full agreement with Trial Judge's
reasoning and conclusions — Appeal dismissed — The Marine
Insurance Act, R.S.O. 1970, c. 260, s. 23.
APPEAL.
COUNSEL:
P. F. M. Jones for appellant.
V. M. Prager and Peter Cullen for respond
ent.
SOLICITORS:
McMillan, Binch, Toronto, for appellant.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for respondent.
The following are the reasons for judgment of
the Court rendered in English by
URIE J.: This is an appeal from a judgment of
the Trial Division [[1977] 2 F.C. 351] in which
the appellant's action seeking a declaration that it
was the proper owner of and beneficiary under a
policy of insurance which the respondent was
obliged to issue to it and for the payment of
various amounts allegedly payable under the terms
of the unissued policy, was dismissed with costs.
The learned Trial Judge in his carefully rea
soned judgment made a number of findings of fact
which, as we see them, were amply supported by
the evidence. No useful purpose would be served in
reviewing them here. The last of the findings was
that there was an original oral request made by the
appellant's insurance broker to the respondent's
underwriters that the appellant receive a certain
type of coverage for the cargo of lumber which
was to be the subject matter of the insurance, but
that that instruction was subsequently changed
and it was understood that neither the appellant's
name nor the coverage originally requested for it
were to be shown in any way on the policy or any
certificate of insurance which might be issued.
He then held that not only had the appellant
failed to establish any obligation on the part of the
respondent to issue a policy in its favour but that
the contrary had been established in evidence. The
certificate of insurance which was issued, and
which was produced in evidence at trial, and in
which the appellant was not shown as an assured,
was all that the respondent was obliged to issue.
Finally, he held that [at pages 360-361] "Any
original oral undertaking to cover the plaintiff
[appellant] by T.T.F. clauses, since the undertak
ing is not embodied in the policy and since it was
not understood that it would be embodied eventu
ally in the policy by oral agreement or otherwise,
cannot be admissible in evidence by reason of
section 23 of the Act [section 23 of The Marine
Insurance Act of Ontario, R.S.O. 1970, c. 2601.'
In the circumstances of the present case, section
23 is an absolute bar to the right of recovery of the
plaintiff [appellant] otherwise section 23 would be
absolutely meaningless."
We are in full agreement with this conclusion
and with the reasons whereby the learned Trial
Judge reached that conclusion. In our opinion he
correctly applied the law to the facts which he
properly found on the evidence. Thus, in our view,
he was right in dismissing the action.
The balance of the judgment and of the argu
ment on the appeal could be applicable only if we
had found that the Trial Judge erred in dismissing
the action on the basis upon which he did so. Since
we have found that the action was properly dis
missed, it is unnecessary for us to consider the
submissions which counsel made with respect to
the additional reasons given by the Trial Judge for
dismissing the action.
' 23. A contract of marine insurance is inadmissible in evi
dence unless it is embodied in a marine policy in accordance
with this Act and the policy may be executed and issued either
at the time when the contract is concluded or afterwards.
The appeal will, therefore, be dismissed with
costs.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.