Manufacturers Life Insurance Company v Laverdiere, 2011 ABQB 733

Court of Queen ’ s Bench of Alberta Citation: Manufacturers Life Insurance Company v Laverdiere, 2011 ABQB 733 Date: 20111201 Docket: 1003 05723 Registry: Edmonton In the Matter of

Section 598 of the Insurance Act , R.S.A. 2000, c. I-3, as amended And In the Matter of a Policy of Insurance Issued by The Manufacturers Life Insurance Company, (the Applicant) And in the Matter of Lionel Roger Laverdiere Sr. (the Deceased) the Insured Under the Group Policy And in the Matter of Denise E. Laverdiere and Denise Lorraine Laverdiere (the Adverse Claimants) Who are Potential Claimants Under the Group Police of Insurance) And Pursuant to Rules 394 and 395 of the Alberta Rules of Court _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] Denise Lorraine Laverdiere married the deceased, Lionel Roger Laverdiere Sr., on June 25th 1968.

The life insurance policy involved in this application Group Policy 4557 issued by The Manufacturers Life Insurance Company to Operating Engineers Local 955 Health & Welfare Trust Fund, provided life insurance coverage to members of the Local, including the Deceased. [ 2 ] On January 26th 1995, a Group Insurance Registration and Declaration of Beneficiary form for the Operating Engineers Local 955 Health & Welfare Trust Fund was completed and signed designating Denise Lorraine Laverdiere ( “ Wife #1 ” ) as the

beneficiary of life and accident insurance monies available to the Deceased under the Policy. [ 3 ] A Matrimonial Property Action was commenced by Wife #1 on or about June 19th, 1996, as between herself and the Deceased. [ 4 ] The deponent Lionel Roger Laverdiere, (the “ Son ” ) is the son of Wife #1 and the Deceased, and by Order of Marceau, J., granted October 4th, 2011 is the trustee for the claimant Wife #1. [ 5 ] On November 17th, 1997 the Deceased swore an Affidavit of Documents in the aforesaid matrimonial property action. [ 6 ] On December 11th, 1997, the solicitors for the Deceased provided to the solicitors for Wife #1, a copy of a draft Minutes of Settlement in relation to the matrimonial property action. [ 7 ] The Son deposed that he knew November of 1997, that the Deceased had life insurance through the International Union of Operating Engineers Local 955, as he was the Dispatcher for the said Local. [ 8 ] Under cross-examination, the Son deposed that every member of the Local had, if they were working, coverage under two (2) life insurance policies and that this was common knowledge among members of the Local. [ 9 ] On or about December 22nd 1997, the Deceased completed a Group Insurance Registration and Declaration of Beneficiary form designating a Denise McPhee (now known as Denise E.

Laverdiere) ( “ Wife #2) a “ friend ” as beneficiary for life and accident insurance. [ 10 ] The existence of the Group Insurance Registration Declaration for Beneficiary form, signed December 22nd, 1997, was not produced within the Matrimonial Property Action and the Trustee for Wife #1 was not aware of the change of beneficiary until he read the Affidavit of Wife #2, sworn August 9th, 2010. [ 11 ] Minutes of Settlement in the aforesaid matrimonial property action were executed by Wife #1, on January 22nd, 1998 and January 23rd, 1998 by the Deceased. [ 12 ] The executed Minutes of Settlement include, inter alia , the following provisions: –

a) AND WHEREAS each of the parties hereto was fully advised and informed of the property, estate and prospects of the other party, and they are advised of their respective rights and liabilities against and to the other, and to and of the property and estate of the other; (Page 2)

b) The parties agree and acknowledge that several life insurance policies exist and that the party ’ s whose life is insured thereunder shall be responsible to maintain all such policies now in existence and not to encumber or reduce the value in any way or manner and that each party shall voluntarily sign an irrevocable beneficiary designation, which designates the former spouse to receive all benefits of said policies; (Page 11)

c) Any other insurance policies in existence at the date of signing this Agreement are to be maintained by the respective parties indicating the other party as the irrevocable beneficiary and there is to be no amending or altering of the benefits in any way, shape or form; (Page 12)

d) In the event that either party alters or affects the benefits of any policy, the respective beneficiary shall have a claim against the estate of the other party in any amount equivalent to the insurance benefits which would have been in place had the insured party not altered or varied benefits of any insurance policy or policies; (Page 12)

e) The parties hereto confirm that the foregoing has been entered into without undue influence or fraud or coercion or misrepresentation whatsoever; that each has read the within Agreement in its entirety and with full knowledge of the contents thereof and is hereinafter voluntarily subscribed hereto and covenants to comply strictly with the terms thereof (Page 15)

f) The parties further covenant and agree to execute and deliver at any time all such further deeds and documents as may be necessary to carry out the true intent of this Agreement. ” (Page 15) [ 13 ] On or about October 14th, 1998, the Deceased completed a Group Insurance Registration and Declaration of Beneficiary form naming Wife #2 as beneficiary for life and accident insurance, identifying her as his “ common law wife ” . [ 14 ] On or about July 2st, 1999, the Deceased signed a Group Insurance Registration Declaration of Beneficiary form naming Wife #2 as beneficiary for life and accident insurance and identifying her as his “ wife ” . [ 15 ] The Deceased died on August 17th, 2009. [ 16 ] On or about December l, 2009, the Operating Engineers Local 955 Health & Welfare Trust Fund advised the Manufacturers Life Insurance Company of the potential adverse claim situation with respect to the beneficiary of the Deceased ’ s insurance proceeds. [ 17 ] On November 19th, 2009, Wife #2 completed a Claimant Statement claiming entitlement to the life insurance proceeds available to the Deceased under the Group Policy 4557.

On November 20th, 2009, Wife #1 also completed and submitted a Claimant Statement for the life insurance proceeds under the same policy. [ 18 ] On or about April 8th, 2010, the Manufacturers Life Insurance Company filed an application to pay the life insurance proceeds into Court. [ 19 ] On Tuesday, April 8th, 2011, Justice Yamauchi directed that the Manufacturers Life Insurance Company shall pay into Court the amount of the benefit payable under the Policy of Insurance issued to the Deceased in the amount of $100,000.00, plus non-contractual interest, pursuant to the Insurance Act , R.S.A. 2000, c. 1-3,

Section 598. [ 20 ] The Manufacturers Life Insurance Company has paid the aforesaid sum of money into Court. [ 21 ] Each of the adverse claimants, being Wife #1 and Wife #2 ” have both filed and served applications to have the insurance proceeds paid out to themselves solely. Issues [ 22 ] Wife #2 seeks an Order, pursuant to Rules 3 2(1)(b) (previously Rule 394) and 3.14 (previously Rule 409) of the Alberta Rules of Court and sections 554(a), 554(e), 557(

a) and 574 of the Alberta Insurance Act , declaring that she is entitled to the Life Insurance Proceeds

held by the Court and a direction that the Court release these Proceeds to her solicitors. Wife #1 seeks an Order declaring that she is entitled to the Life Insurance Proceeds held by the Court and a direction that the Court release these Proceeds to her solicitors. (

a) Is Wife #2 the last validly declared beneficiary under the Policy prior to the Deceased ’ s death? (

b) Did the Deceased breach the terms of the Minutes of Settlement by declaring Wife #2 as beneficiary on December 22, 1997 and thereafter; (

c) If Wife #2 is the last validly declared beneficiary and if the Deceased breached the terms of the Minutes of Settlement, is Wife #2 still entitled to the Life Insurance Proceeds? Group Insurance Policy 4557 and Declarations of Beneficiary [ 23 ] The Deceased was a member of the International Union of Operating Engineers Local 955 ( “ IUOE 955 ” ) and worked as an equipment operator.

As a member of the IUOE 955, he was eligible for coverage under Group Policy of Insurance No 4557 issued by Manulife to IUOE 955 Health & Welfare Trust Fund (the “ Policy ’ ). [ 24 ] In order to have insurance coverage under the Policy, a member of IUOE 955 had to have at least 130 adjusted hours in the member ’ s hours bank If the member had less than 130 adjusted hours, the member ’ s insurance coverage under the Policy would terminate. [ 25 ] Most group policies that provide group life and accident insurance coverage also provide extended health (prescription drug, hospital and dental coverage), and short and long term disability benefits Although the Policy and Benefits Booklet have never been produced in this proceeding, it is assumed some or all of these referenced benefits were available under the Policy for eligible members of IUOE 955. [ 26 ] Approximately every two years, the IUOE 955 sent out a mailing to those members covered under the Policy asking that the member update their beneficiary declarations under Policy and enclosing a declaration form The updated beneficiary declaration forms would then be returned to the Health & Welfare and Pension Trust Funds office of the IUOE 955. [ 27 ] The Deceased ’ s coverage under the Policy commenced on September 1st, 1980. [ 28 ] On January 26th, 1995, the Deceased completed and signed an Operating Engineers Local 955 Health & Welfare Trust Fund Group Insurance Registration and Declaration of Beneficiary form ( “ January 26, 1995 Declaration of Beneficiary Form ” ).

On the January 26th, 1995 Declaration of Beneficiary Form the Deceased named “ Denise Laverdiere - Wife ” as the beneficiary of his life and accident insurance. On January 26th, 1995, Wife #1 was the Deceased ’ s wife. This Declaration of Beneficiary was revocable. [ 29 ] On September 30th, 1996, the Deceased ’ s coverage under the Policy terminated due to insufficient hours in his hours bank. On October 1st, 1997, over a year after the Deceased ’ s coverage terminated, after accumulating the number of required hours in his hours bank, the Deceased ’ s coverage under the Policy was reinstated.

The effective date of coverage under the Policy was said to be October 1st, 1997. [ 30 ] On December 22nd, 1997, after the October 1st, 1997 effective date of insurance coverage, the Deceased completed and signed an Operating Engineers Local 955 Health & Welfare Trust Fund Group Insurance Registration and Declaration of Beneficiary form (December 22nd, 1997 Declaration of Beneficiary Form ” ). On the December 22nd, 1997 Declaration of Beneficiary Form the

Deceased named “ Denise McPhee - Friend ” as the beneficiary of his life and accident insurance.

In December 1997, Wife #2 used the last name McPhee. [ 31 ] The December 22nd, 1997 Declaration of Beneficiary Form was completed by the Deceased at his home, not at the Union Hall with Wife #2 as was suspected by the Son and referred to in his Supplemental Affidavit at paragraphs 11 and 12. [ 32 ] On October 14th, 1998, the Deceased completed and signed an Operating Engineers Local 955 Health & Welfare Trust Fund Group Insurance Registration and Declaration of Beneficiary form ( “ October 14th, 1998 Declaration of Beneficiary Form ).

On the October 14, 1998 Declaration of Beneficiary Form the Deceased named “ Denise Eloise McPhee - Common Law Wife ” as the beneficiary of his life and accident insurance. The Deceased and Wife #2 had been living together since June 1996. [ 33 ] On July 21st, 1999 the Deceased completed and signed an Operating Engineers Local 955 Health & Welfare Trust Fund Group Insurance Registration and Declaration of Beneficiary form ( “ July 21st, 1999 Declaration of Beneficiary Form ” ). On the July 21st, 1999 Declaration of Form the Deceased named “ Denise E.

Laverdiere - Wife ” as the beneficiary of his life and accident insurance. The Deceased and Wife #2 were married on May 22nd, 1999. Order in Divorce Proceedings and Minutes of Settlement [ 34 ] On August 18th, 1998, Justice Murray of this Court granted an Order in the Divorce Proceedings regarding division of the Deceased ’ s pension with the IUOE 955.

This Order does not address any life insurance benefits under the Policy, but rather refers only to pension benefits. [ 35 ] On January 22nd, 1998, in settlement of the Matrimonial Property Proceedings, the Deceased and Wife #1 executed Minutes of Settlement which state the following: – 8.

LIFE INSURANCE The parties agree and acknowledge that several life insurance policies exist and that the parties whose life is insured thereunder shall be responsible to maintain all such policies now in existence and not to encumber or reduce their value in any way or manner and that each party shall voluntarily sign an irrevocable beneficiary designation which designates the former spouse to receive all benefits of said policies.

In that regard the husband shall maintain Canada Life Insurance Policy #2025447 and Canada Life Insurance Policy #1 766726 with the name Denise Laverdiere as beneficiary and not alter the benefits in any way, shape or form. The wife acknowledges and agrees that she shall maintain Canada Life Insurance Policy #2581570 to show Lionel Laverdiere, Sr. as the beneficiary and that she shall not alter the benefits payable in any way, shape or form. Mrs.

Laverdiere shall also maintain and continue CIBC Life Insurance Policy #00596066 for the benefit of Lionel Laverdiere, Sr and not alter its benefits in any way, shape or form. Any other insurance policies in existence at the date of signing this agreement are to be maintained by the respective parties indicating the other party as irrevocable beneficiary and there is to be no amending or altering of the benefits in any way, shape or form.

In the event that either party alters or affects the benefits in any policy the respective beneficiary will have a claim against the estate of the other party in an amount equivalent to the insurance benefits which would have been in place had the insured party not altered or varied the benefits of any insurance policy or policies. [ 36 ] The Minutes of Settlement also state: –

Each of the parties hereto is fully advised and informed of the property, estate and prospects of the other party, and they are advised oftheir respective rights and liabilities against and to the other, and to and of the property and estate of the other. [37] It is submitted that at all times material to the negotiation of the Minutes of Settlement as between the Deceased and Wife #1that it was the intention of both parties that each would remain as the respective beneficiaries of all life insurance policies and that thebeneficiary designation would not be changed by either party. [38] In December of 1997 and January of 1998, when negotiations were ongoing as between Wife #1 and the Deceased, Rule197(2) of the Alberta Rules of Court read:– 197(2) If, after a party has filed an Affidavit of Records, the party discovers, creates or comes into possession, custody or power of arelevant and material record not previously disclosed, the party must immediately given notice of it to all other parties, and must, onrequest, supply the other parties with a copy of it but, in any case, the Court may permit the record to be given in evidence on such termsas to costs or otherwise as may be just. [39] As it was then, Rule 197(2) imposed a duty on the party to provide a record update, if any new relevant and material recordwas discovered, created or came into the possession, custody or power of a party: Rudovics v.

Misericordia Hospital (AB KB), [1994] A.J., No. 76, 150 A.R. 363, 23 C.P.C. (3d) 85, 45 A.C.W.S. (3d) 625, No. 8703 07293, at para. 13. [40] Both the Deceased and Wife #1 affirmed that the Minutes of Settlement had been entered into without misrepresentation. [41] Further at common law with respect to disclosure in a matrimonial negotiations, each spouse has “a duty to make full andhonest disclosure of all relevant financial information” when negotiating separation agreements: Brown v. Silvera 2009 ABQB 523, [2009] A.J. No. 990, 2009 A.B.Q.B. 523, 51 E.T.R. (3d) 9, 17 Alta.

L.R. (5th) 37, 471 A.R. 241,2009 Carswell Alta. 1436, atParagraphs 27 through 30, in turn referencing comments made by Abella, J. in Rick v.

Brandsema 2009 SCC 10 , [2009] S.C.C.10 [2009] 1 S.C.R. 295 and also paras. 34 through 37. [42] The Group Insurance Registration and Declaration of Beneficiary form, was completed at the home of the Deceased,December of 1997. [43] The Group Insurance Registration and Declaration of Beneficiary form, dated on or about December 22nd, 1997, was notproduced in the matrimonial property action as between Wife #1 and the Deceased. [44] It is submitted that not only did the Deceased fail to comply with the provisions of Rule 197(2), he also failed to meet hiscommon law duty to give full and complete disclosure during the matrimonial property negotiations. [45] It is submitted that the Group Insurance Registration and Declaration of Beneficiary form, was a document created at thetime Wife #1 and the deceased were in negotiation to set the terms of the Minutes of Settlement.

The form was created on or aboutDecember 22nd, 1997 and it is submitted that the form should have been brought to the attention of Wife #1 in or about December of1997, when in fact it never was brought to her attention at any time until after the death.

It is submitted that there is no evidence beforethis Court of sufficient cause for the omission or non-production of that document in the matrimonial property proceedings. [46] As such it is submitted that this Court should not allow the claimant, Wife #2, to rely on the existence of the December 22nd,1997 form to support or augment her claim to the insurance proceeds: Bank of Montreal v. Jarjoura 2010 ABQB 103 , [2010]A.J. No. 163, 2010 A.B.Q.B. 103, at paras. 29 through 32. [47] Further, or in addition, it is submitted that it would be a gross miscarriage of justice to allow Wife #2 to claim the benefit of

insurance proceeds on the basis of a document that was not produced in earlier matrimonial property proceedings and clearly would havebeen highly relevant and important, given the stated intention of the parties to have the beneficiary designation of life insurance policiesremain payable to the parties involved in the Minutes of Settlement. [48] Further it is submitted that the evidence of a Group Insurance Registration and Declaration of Beneficiary form of December22nd 1997 is properly excluded, then as of the date of execution of the Minutes of Settlement, the claimant Wife #1 is the properbeneficiary of the insurance proceeds as per the beneficiary designation under the Group Insurance Registration and Declaration ofBeneficiary form signed by the Deceased, on or about January 26th, 1995. [49] Any Group Insurance Registration and Declaration of Beneficiary form signed by the Deceased dealing with Group Policy4557, signed after January 23rd, 1998, changing the beneficiary of same, would be of no force and effect as any such change ofbeneficiary would be in violation or breach of the Minutes of Settlement, and more particularly Clause 8 thereof. [50] More particularly it is submitted that the Group Insurance Registration and Declaration of Beneficiary forms are of no forceand effect and do not and would not allow a valid claim to be made by Wife #2 to the insurance proceeds. [51] It is submitted that the Minutes of Settlement supercede the designation of Wife #2 as beneficiary under Group Policy 4557,issued by the Manufacturers Life Insurance Company, to Operating Engineers Local 955 Health & Welfare Trust Fund: HemmerlingEstate v.

Hemmerling 2000 ABQB 808 , [2000] A.J. No. 1328, 2000, A.B.Q.B. 808, 275 A.R. 171, 36 E.T.R. (2ç1) 46, 12 R.F.L. (5th) 101 A.C.W.S. (3d) 111, para. 20 and 23. Conclusion A. Wife #2 - Last Validly Declared Beneficiary [52] Subpart 4, headed “Life Insurance”, of the Alberta Insurance Act, has application to group policies of life insurance. [53]

Section 557 of this Subpart states:– 557 In the case of a contract of group insurance made with an insurer authorized to transact insurance in Alberta at the time thecontract was made, this Subpart applies in determining: (

a) the rights and status of beneficiaries if the group life insured was resident in Alberta a the time the group life insured becameinsured. . . [54] There is no dispute that Manulife was authorized to transact insurance in Alberta at the time the Group Contract Policy wasmade with the IUOE 955 and that the Deceased Group Life Insured was resident in Alberta at the time he became insured.

Therefore thisSubpart of the Insurance Act applies in determining the rights and status of beneficiaries in this case. [55] Pursuant to section 574(1) of this Subpart, “an insured may in a contract or by declaration designate the insured’s personalrepresentative or a beneficiary to receive insurance money”. [56] In

section 554:–

a beneficiary is defined as (

b) a person, other than the insured or the insured’s personal representative, to whom or for whose benefit money is made payable ina contract or by declaration. a contract is defined as (c) ...a contract of insurance. a declaration is defined as (e) ...an instrument signed by the insured (

i) with respect to which an endorsement is made on the policy, (ii) that identifies the contract, or (iii) that describes the insurance or insurance fund or a part of the insurance or insurance fund, in which the insured designates or alters or revokes the designation of the insured’s personal representative or a beneficiary as one towhom or for whose benefit insurance money is to be payable. an “insured” is defined as: (

k) in the case of group insurance in the provisions of the Subpart relating the designation of beneficiaries and the rights and status ofbeneficiaries, the group life insured... [57] The December 22nd, 1997, October 14th, and July 21st, 1999 Declaration of Beneficiary Forms are valid declarationspursuant to the Insurance Act. [58] Given that Wife #2 was the named beneficiary under the Policy pursuant to valid declarations, the last of which was July21st, 1999, which declaration was never revoked, she is entitled to receive the Life Insurance Proceeds. B.

No Breach of Contract [59] “The designation of a beneficiary in a life insurance policy is normally unassailable”: Rainsford v. Gregoire, 2008 BCSC 310, [2008] B.C.J. No. 448 (B.C.S.C.) at para 27. It is a solemn act, frequently done privately, sometimes without the knowledge ofthe beneficiary, and does not require the consent of the insurer as it is akin to a testamentary disposition. See Fontana v. Fontana(1987), 28CCL1 232, [1987] B.C,J. No 452 (B.C.S.C.); Richardson Estate (Re), (ON S.C.) at para. 27.

[ 60 ] Wife #1 alleges that the Deceased breached the terms of the: Minutes of Settlement by naming Wife #2 as the beneficiary under the Policy. In particular she alleges that the Deceased breached paragraph 3 of clause 8 of the Policy which states: – ...any other insurance policies in existence at the date of signing this agreement to be maintained by the respective parties indicating the other party as irrevocable beneficiary and there is to be no amending or altering of the benefits in any way, shape or form. [ 61 ] I conclude that the Deceased did not breach the terms of the Minutes of Settlement as: – (

a) Wife #1 was never a designated beneficiary under the Policy once the Deceased ’ s coverage became effective on October 1st, 1997; (

b) Even if Wife #1 was the designated beneficiary when coverage for the Deceased became effective on October 1st, 1997, Wife #2 was the named beneficiary under the Policy as of December 22nd, 1997, prior to execution of the Minutes of Settlement on January 22nd, 1998; (

c) Paragraph 3 of clause 8 cannot be reasonably interpreted to mean that the Deceased was required to revoke all existing beneficiary designations and name Wife #1 as irrevocable beneficiary under all of the Deceased ’ s existing policies of life insurance. C. Wife #1 - Never a Designated Beneficiary after October 1st, 1997 [ 62 ] A group life insured ’ s coverage under a group policy can terminate in a number of circumstances, although the group policy may continue in force. An individual ’ s coverage will normally terminate on (

i) their ceasing to be a member of the class of persons eligible for insurance under the group policy, (ii) termination of their employment, and (iii) failure to pay a contribution the individual has agreed to make to the group policyholder for their coverage: D. Norwood and J.

Weir, Norwood on Life Insurance Law in Canada 3d ed (Toronto: Carswell, 2002) at 232. [ 63 ] When the Deceased ’ s coverage under the Policy terminated on September 30th, 1996 for failure to have the required number of adjusted hours in his hours bank, the January 26st, 1995 Declaration of Beneficiary naming Wife #1 as beneficiary also terminated. [ 64 ] On October 1st, 1997, when the Deceased ’ s coverage under the Policy again became effective the January 26th, 1995 Declaration of Beneficiary did not revive.

It was not until the Deceased executed the December 22nd, 1997 Declaration of Beneficiary Form naming Wife #2 as beneficiary that the Deceased had a named beneficiary under the Policy. [ 65 ] The Courts have held that in cases where a group policy of insurance terminates and the policy is replaced, even when there has been no lapse in coverage for the insured group member, the beneficiary designation under that original policy also terminates and a new beneficiary designation is required: Industrial Mechanical Specialties Ltd. v Citadel General Insurance Co. [1989] O.J. No. 1862 (Ont.

H.C.) at pg. 5 and 6. [ 66 ] Although this is not a case where the group policy has terminated, the same principle requiring a new beneficiary designation should be applied. Although the Policy itself did not terminate, the Deceased ’ s (the group life insured ’

s) coverage did, and therefore the beneficiary designation at the time of the termination of the Deceased s coverage did as well. Once the Deceased ’ s coverage became effective on October 1st, 1997, he would be required to complete a new beneficiary designation, which he did on December 22nd, 1997. If he had not designated a new beneficiary after October 1st, 1997 the life insurance proceeds would be payable to his estate.

[67] In situations were a group life insured s coverage terminates, absurd results can arise if that employee becomes covered underthat group policy again at some future point and his last beneficiary designation prior to termination revives. For example, an employeecould stop working for an employer and cease to be covered under the employer’s group policy. That employee could then workelsewhere for several years, ultimately returning to work for the original employer.

If that original employer still has the same grouppolicy of insurance in place, and if that employee becomes covered again under that group policy, it would be illogical to suggest that thebeneficiary designation in place prior to the employee’s coverage terminating is somehow now revived. [68] Given the foregoing, from October 1st, 1997 (the effective date of the Policy) to the date of the Deceased’s death, the onlydeclared beneficiary under the Policy has been Wife #2 and she was the validly declared beneficiary as of the date of the Deceased’sdeath.

As such, she is entitled to receive the Life Insurance Proceeds. D. Wife #2 - Validly Declared Beneficiary on December 22, 1997 [69] Even if the Declaration of Beneficiary naming Wife #1 as beneficiary on January 26th, 1995 revived when the Deceased’scoverage became effective on October 1st, 1997, the Deceased validly revoked this declaration and declared Wife #2 as beneficiary onDecember 22nd, 1997. [70] There is no evidence that this revocation was done to defeat clause 8 of the Minutes of Settlement, which Minutes were notsigned and effective until January 22nd, 1998. Contractual

Interpretation [71] As the party alleging breach of contract, it is Wife #1’s onus to prove that the contract was breached. In doing so, she bearsthe burden of establishing the meaning of paragraph 3 of clause 8 in the Minutes of Settlement. [72] The objective sought in interpreting contracts is always the discovery of the true intention of the parties. Grand TrunkPacific Coast Steamship Co. v. Victoria-Vancouver Stevedoring Co. (1918), (SCC), 57 S.C.R. 124 at 126. [73] When the true intention of the parties is elusive, one must look to interpret the meaning of the contract objectively throughprinciples of contractual

interpretation. In this regard, “[t]he golden rule of construction is that words are to be construed according totheir natural meaning, unless such a construction would either. render them senseless or would be opposed to the general scope and intentof the instrument, or, unless there be some cogent reason of convenience in favour of a different

interpretation”: E. Beal, Cardinal Rulesof Legal

Interpretation (Toronto: The Canada Law Book Limited, 1908) at 133. [74] Proper contract

interpretation will not exclusively embrace either the subjective or objective perspectives. On the contrary,the law of contract

interpretation represents a subtle blend of subjective and objective elements attempting to determine what the partiesprobably did intend on the one hand and, on the other hand, relying on objective methods of

interpretation to settle points of difficultythat cannot be resolved on a more subjective basis: J D McCamus, Essentials of Canadian Law The Law of Contracts (Toronto: IrwinLaw Inc. 2005) at 706. [75] The natural meaning of the words of paragraph 3 of clause 8 is not clear, that is, are the parties required to maintain onlyinsurance policies where the other party is already named as a beneficiary, or are the parties required to revoke any previous beneficiarydesignations under any policy and name the other party as beneficiary? [76] If the meaning of this clause is that the parties are only required to maintain insurance policies where the other party isalready named as a beneficiary on the date of signing of the Minutes of Settlement, then the Deceased did not breach the terms of theMinutes as Wife #1 was never a beneficiary under the Policy; or alternatively not a beneficiary under the Policy when the Minutes of

Settlement wire entered into. [ 77 ] If the intent was to have the parties revoke any beneficiary designations that did not already name the other party as a beneficiary, the Minutes of Settlement would have to make that clear. Paragraph 3 of clause 8 cannot be reasonably interpreted to require a revocation, and further there is no evidence before the Court that this was the intention of this clause.

In fact, this clause specifically states that there is to be no amendment of these policies. [ 78 ] Further, where a provision in a contract lists items that share a common characteristic of some kind, and the list is then completed by a more general phrase, the ejusdem generis holds that the scope of the general phrase in limited by the common characteristics or the class or genus of the particularized items: J.D.

McCamus, Essentials of Canadian Law The Law of Contracts (Toronto: Irwin Law Inc 2005) at 724-725. [ 79 ] Paragraph 3 of clause 8 is a general provision following a list of specific policies in paragraphs 1 and 2. The policies listed in paragraphs 1 and 2 of clause 8 are policies: – (

a) of individual life insurance only; (

b) in the control of the parties themselves (the parties are able to cancel their own policies or change the life benefits thereunder); (

c) which already name Wife #1 or the Deceased as a beneficiary. [ 80 ] In contrast, the Policy at issue is a policy: – (

a) of group insurance which provides for life insurance as well as other benefits; (

b) is under the control of the union (only the union is able to cancel the Policy, the benefits, including the amount of the life benefit); (

c) which does not already name Wife #1 as a beneficiary. [ 81 ] As such, paragraph 3 of clause 8 does not include the Policy as it is different in character and kind from the Policies listed in paragraph 1 and 2. [ 82 ] The expressio unius est exclusio altenus principle of

interpretation also has application. This principle means that an express reference to a particular person, thing condition or exception may when considered in context amount to an exclusion of those mentioned.

It is a general rule of construction that there is an inference that all omissions from a list in a contract or clause in a contract are understood to be excluded from that list: JD McCamus, Essentials of Canadian Law The Law of Contracts (Toronto: Irwin Law Inc 2005) at 726. [ 83 ] As paragraphs 1 and 2 of clause 8 specifically reference certain policies by description, it is assumed that the parties intended to exclude the Policy at issue as it was not specifically referenced in clause 8. [ 84 ] As pointed out in paragraphs 3 and 4 of the Supplemental Affidavit of the Son, the Deceased listed an Operating Engineers Local 955 Benefits Pamphlet in the Affidavit of Documents in the Matrimonial Property Proceeding.

As Wife #1 was represented by

counsel, questioning and document production in regard to the Policy would have been available pursuant to the Alberta Rules of Court .

There is no evidence before this Court as to what was discussed, produced or known in relation to this Benefits Pamphlet and the Policy. [ 85 ] It can be assumed, based upon the listing of the Operating Engineers Local 955 Benefits Pamphlet ” in the Deceased ’ s Affidavit of Documents that prior to execution of the Minutes of Settlement, Wife #1 either was aware or could have been aware of the existence of the Policy and the details, including the amount of the life insurance benefit and the identity of the named beneficiary.

If this Policy was meant to be included as a life insurance policy in relation to which the Deceased was to maintain or name Wife #1 as beneficiary, it would have been referenced specifically as were the individual life insurance policies in paragraphs 1 and 2 of clause 8.

One can conclude that the parties meant to exclude it. [ 86 ] In paragraphs 6 and 7 of the Supplemental Affidavit sworn by the Son, he states that draft Minutes of Settlement were provided by counsel for the Deceased to counsel for Wife #1 on December 11th, 1997 and points out that the clause 8 of the Minutes of Settlement (the clause addressing Life Insurance) remained unchanged in comparison to the Minutes of Settlement signed on January 22nd, 1998.

Although Wife #1 was represented by Ron Johnson, the current counsel for Wife #1 in this matter, no evidence has been advanced as to what discussions took place regarding the Policy between the date the draft Minutes of Settlement were sent and the date they were ultimately signed. There is no evidence before this Court that the Deceased concealed any information regarding the Policy, and there is no evidence before this Court that this Policy was meant to be included in the general wording of paragraph 3 of clause 8. [ 87 ] In

summary, I conclude that the Deceased did not breach the Minutes of Settlement by naming Wife #1 as beneficiary under the Policy on December 22nd, 1997, not revoking her as the designated beneficiary and re-designating Wife #2 as beneficiary after the Minutes of Settlement were executed. [ 88 ] The application of the Cross-Applicant/Respondent, Wife #2 to have the Life Insurance Proceeds paid out to her is granted. The application of the Applicant/Cross-Respondent, Wife #1 is dismissed. Costs of this application are payable by Wife #1 to Wife #2.

Remedy for Breach of Contract [ 89 ] If the Deceased is found to have breached the terms of the Minutes of Settlement by naming Wife #2 as beneficiary under the Policy, Wife #1 ’ s remedy, as set out in clause 8 of the Minutes of Settlement, is to sue the Estate of the Deceased. Heard on the 23 rd day of November, 2011. Dated at the City of Edmonton, Alberta this 1 st day of December, 2011. Donald Lee J.C.Q.B.A. Appearances:

Ronald Johnson Johnson Yesdreskysik for the Applicant/Cross-Respondent Denise Lorraine Laverdiere Sandra L. Hawes Miller Thomson LLP for the Respondent/Cross-Applicant Denise Eloise Laverdiere