An insured may not elect to proceed with a trial by jury when relief from forfeiture is sought.
A jury is not entitled to award the remedy of relief from forfeiture. An insured may not elect to proceed with a trial by jury when an equitable remedy, such as relief from forfeiture, is sought.
Here is the citation: Peters v. Co-operators Life Insurance Co. [2007] B.C.J. No. 1642. British Columbia Supreme Court. Frankel J. July 23, 2007.
Here is a link to the decision.
This case was originally summarized by Shanti Davies and edited by David Pilley.
The Insured claimed that she was entitled to benefits from the Insurer as a result of being "totally disabled" as defined in the policy. She claimed that because of improper actions by her employer, through whom the insurance had been provided, she was not aware of her entitlement to benefits until too late.
The Insured’s claim had been denied on the basis that she had not provided a Proof of Loss to the Insurer within the time stipulated in the policy. In her Statement of Claim, the Insured sought a declaration that she was entitled to disability benefits, relief from forfeiture and various damages, interest and costs. The Insurer took the position that the Insured was not entitled to benefits as she was neither "actively at work" nor "totally disabled". The Insurer also pled that the Insured was not entitled to benefits because of the late filing of the Proof of Loss.
On the application by the Insurer to strike the Jury Notice, the Court considered the provisions in the British Columbia Supreme Court Rules, which provide guidance as to when a trial shall be heard without a jury. In particular, the Court considered Rule 39(25) which provides that a trial shall be heard by the Court without a jury where it relates to a matter referred to in Rule 10(1). The provision at issue in this case was Rule 10(1)(b), which states "the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract, or other document". The Insurer argued that the principle issues, namely whether the Insured was "actively at work" and "totally disabled", relate to the interpretation of the policy and that the action must be tried by a judge sitting without a jury.
After reviewing case law involving the determination of whether an insured is "totally disabled", Mr. Justice Frankel concluded that such a determination involves issues concerning the application of the policy, rather than its interpretation. Accordingly, he found that Rule 10(1)(b) did not preclude the Insured’s right to a jury trial as the sole or principal question was not construction of the policy. However, his Lordship held that relief from forfeiture, as sought by the Insured in her Statement of Claim, was an equitable remedy that could only be decided by a judge. Accordingly, he ordered the trial to proceed in front of a judge sitting without a jury.
