Valerie Lucille Jantzen as personal representative for the Estate of Joshua Richard Jantzen Appellant (Respondent/Plaintiff) v. TD Life Insurance Company and the, 2023 SKCA 76

Court of Appeal for Saskatchewan Docket: CACV4019 Citation: Jantzen Estate v TD Life Insurance Company , 2023 SKCA 76 Date: 2023-07-05 Between: Valerie Lucille Jantzen as personal representative for the Estate of Joshua Richard Jantzen Appellant (Respondent/Plaintiff) And TD Life Insurance Company and the Canada Life Assurance Company Respondents (Applicants/Defendants) Before: Leurer, Tholl and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr.

Justice Tholl The Honourable Madam Justice McCreary On appeal from: 2022 SKQB 113 , Saskatoon Appeal heard: May 10, 2023 Counsel: Benedict Nussbaum for the Appellant Douglas Hodson, K.C. for the Respondents Leurer J.A. I. INTRODUCTION [ 1 ] On February 1, 2018, Joshua Jantzen was found dead from a cocaine overdose. The issue in this appeal is if his estate can collect on two policies that insured his debts to Toronto-Dominion Bank [TD] in the face of exclusions that deny coverage if death is as a result of, or happens while committing, a criminal offence. [ 2 ] A Court of Queen’s Bench judge granted

summary judgment dismissing the estate’s claim under the applicable insurance policies: Jantzen Estate v TD Life Insurance Company , 2022 SKQB 113 , [2022] 7 WWR 162 [ Judgment ]. The estate appeals from the grant of this judgment. [ 3 ] While I do not agree with every part of the judge’s analysis, his bottom-line conclusion is correct. No death benefit is payable under the policies in the circumstances of this case. Accordingly, the estate’s appeal must be dismissed. My reasons follow. II. BACKGROUND A. Facts [ 4 ] Prior to his death, Mr.

Jantzen was indebted to TD under a loan secured by a mortgage and a separate line of credit [LOC]. When he died, Mr. Jantzen owed approximately $213,000 on the mortgage and another $5,000 on the LOC. [ 5 ] The loans were insured under two policies of insurance. I will refer to these as the “Mortgage policy” and the “LOC policy”. TD Life Insurance Company and the Canada Life Assurance Company insure different aspects of the coverage under these policies. Nothing turns on this difference.

For this reason, I will refer to them together as the “insurers”. [ 6 ] The Mortgage policy was issued in 2011, and the LOC policy in 2015. Mr. Jantzen disclosed in his application for the latter policy, completed in December of 2015, that he had been addicted to cocaine for approximately four years but had last used that drug in May of that year. [ 7 ] Mr. Jantzen was found dead in his home on February 1, 2018. A coroner later concluded that he had died one week earlier. An autopsy was performed by a forensic pathologist. The autopsy disclosed that Mr. Jantzen had a fatal quantity of cocaine in his system.

The pathologist listed the cause of death to be “a combined drug intoxication of cocaine and alcohol”. In a later report, the coroner accepted the pathologist’s findings and stated the cause of death to be “Accidental”. The coroner further reported that the police “have ruled out any suspicion of foul play”. [ 8 ] The estate applied under the two policies for payment of the debts owing to TD.

The insurers declined coverage, relying on similar exclusions found in the two policies. [ 9 ] The exclusion found in the Mortgage policy states that the insurers will not pay a life or terminal illness benefit if “ your death is a result of or while you were committing a criminal offence” (emphasis in original). The LOC policy exclusion is worded more expansively. It states that no benefit would be payable if “ your death is a result of, associated with, or happens while you are committing a criminal offence” (emphasis in original).

As can be seen, the words “or associated with” and “happens” appear in the LOC policy but not in the Mortgage policy.

[ 10 ] When the insurers refused to pay, the estate commenced an action seeking damages in the amounts then owing to TD. The insurers later brought an application for

summary judgment dismissing the estate’s claim. For its part, the estate agreed that the dispute was amenable to

summary disposition but took the position that judgment should issue in its favour. B. The Judgment [ 11 ] After providing the background to the dispute and concluding that it could be decided summarily, the judge turned to consider if the exclusion clauses applied. The judge identified that, at the time of Mr. Jantzen’s death, the possession of cocaine was an offence under s. 4(1) the Controlled Drugs and Substances Act , SC 1996, c 19 . He found there to be “no doubt that [Mr. Jantzen] had been in possession of cocaine” prior to his death (emphasis in original).

He based this conclusion on the evidence that the cause of Mr. Jantzen’s death was “a combined overdose of alcohol and cocaine” and the pathologist’s finding that “there were lethal levels of cocaine in his blood and liver” (at para 26). Following this analysis, the judge reviewed the parties’ positions and analyzed the language of the exclusion clauses.

He broke the latter down as, in effect, creating three different exclusions, which he described as follows (at para 36): a. the insured dies as a result of committing a criminal offence [Result Exclusion]; b. the insured dies while committing a criminal offence [While Exclusion]; c. the insured’s death is associated with committing a criminal offence [Associated Exclusion]. [ 12 ] In this appeal, the parties adopted these three terms – “Result Exclusion”, “While Exclusion” and “Associated Exclusion” – as a short form expression of the three different circumstances in which the insurers were entitled to deny coverage.

From time to time, I will use these terms in this judgment. As the judge correctly noted, the Result Exclusion and the While Exclusion are in both policies; the Associated Exclusion only applies to the LOC policy. [ 13 ] During the autopsy, the pathologist had found several cards in a wallet located on Mr. Jantzen’s body, behind which there was a “thin piece of multicolored cardboard like that of a flyer or from a menu”.

The pathologist recorded that he could see that the cardboard piece surrounded “a plastic bag that appears to be a bag that could have been cut from the corner of the larger bag and contains a white powder in it suggestive of cocaine”. He also located on another part of Mr. Jantzen’s body “a 20 dollar bill that has white material stuck to it”. The judge summarized this evidence. He concluded on the balance of probabilities that the substance found in Mr. Jantzen’s wallet was cocaine, and that even “if it were only a trace amount … the threshold for possession is met” (at para 56).

Based on these findings, the judge determined that Mr. Jantzen died while committing the criminal offence of possession of cocaine, thus entitling the insurers to deny coverage under both policies by applying the While Exclusion. [ 14 ] The judge recognized that this finding was sufficient to dispose of the estate’s claim under both policies. Nonetheless, he went on to address the Result Exclusion and the Associated Exclusion. He prefaced his discussion of these exclusions by finding that there was “no doubt that [Mr.

Jantzen] had, before he ingested it, been in possession of a sufficient quantity of cocaine as to constitute a criminal offence”. He drew this conclusion because a “lethal amount of cocaine was found in [Mr. Jantzen’s] liver and blood” and because of the absence of any suggestion of foul play (at para 65). [ 15 ] After a review of case law, the judge found that “it would be possible, had [Mr. Jantzen] not died, to have convicted [him] of possession of cocaine”. Accordingly, the judge held that Mr.

Jantzen’s “death was associated with that criminal offence”, and therefore “the Associated Exclusion applies” (at para 83). The judge concluded that the estate’s claim under the LOC policy could be dismissed on this basis, as well as because Mr. Jantzen died while possessing cocaine in his wallet. [ 16 ] However, the judge determined that the Result Exclusion did not apply. In reaching this conclusion, he found that possession of cocaine “ did not inevitably lead to its consumption, thereby leading to [Mr. Jantzen’s] death”. Instead, he found that Mr.

Jantzen had “made a choice to consume the cocaine” and hence possession of it “did not cause his death” (at para 87). The judge also rejected the insurers’ contention that Mr. Jantzen had died while possessing the cocaine that he had ingested because there was “no evidence as to how quickly he died following ingestion” (at para 88). [ 17 ] In

summary, the judge found that: (

a) the While Exclusion applied because Mr. Jantzen died while in possession of the cocaine later found by the pathologist in his wallet. This conclusion entitled the insurers to

summary judgment dismissing the claim under both insurance policies; (

b) the Associated Exclusion, found only in the LOC policy, also applied because Mr. Jantzen’s death was associated with his possession of the cocaine that he had ingested. This determination gave the insurers a second reason to deny coverage under the LOC policy; and (

c) the Result Exclusion did not apply because ingesting cocaine is not illegal and Mr. Jantzen’s death was not caused by his mere possession of it. III. ISSUES [ 18 ] The outcome of the estate’s appeal is determined by the answers to these three questions: (

a) Did the judge apply the wrong onus and standard of proof? (

b) Did the judge err in failing to properly consider ss. 4.1(2) and 4.1(3) of the Controlled Drugs and Substances Act ? (

c) Did the judge err in his

interpretation of the exclusion clauses?

IV. ANALYSIS A. Onus and standard of proof [ 19 ] The estate’s first set of arguments pertains to the onus and standard of proof adopted by the judge. There are two wings to its submission. [ 20 ] The estate first invites this Court to conclude that the judge erred by failing to place an onus on the insurers to prove Mr. Jantzen’s commission of a crime. In advancing this argument, the estate relies on David Norwood & John P.

Weir, Norwood on Life Insurance Law in Canada , 3d ed (Toronto: Carswell, 2002) at 465 [ Norwood ], as well as the following passage from Craig Brown & Julio Merezes, Insurance Law in Canada: A Treatise on the Principles of Indemnity Insurance as Applied in the Common Law Provinces of Canada (Toronto: Carswell, 1982) at 206: It is not enough, however, to establish that there was a reasonable probability that the alleged crime may have been committed . The civil standard operates in tandem with the presumption against a crime having been committed.

The nature of the evidence must be cogent enough to overcome the presumption and satisfy the court that as a probability the alleged act had , in fact , been committed . … (Emphasis in original) [ 21 ] I cannot agree that the judge misapplied this law. Rather, he approached his fact-finding in a way that was completely consistent with this direction. [ 22 ] A similar argument to that made in this appeal was advanced by the estate before the judge. Contrary to what the estate submits in this appeal, the judge agreed that the insurers carried the onus of proving the applicability of the exclusion clauses.

This is evident from the following statement in the Judgment : [19] The plaintiff argues that the defendants bear the onus of proof that the exclusion clauses apply. The defendants did not take issue with that submission, and I accept it. The defendants will bear that onus of proof. [ 23 ] I am completely satisfied that the judge’s direction that the insurers bore “the onus of proof that the exclusion clauses apply” extended to proof that Mr. Jantzen had committed a crime.

This determination is clear from the judge’s later statement that the applicable standard of proof was the balance of probabilities and that “the balance of probabilities standard will apply to each element of the alleged offence of possession of cocaine ” (at para 22, emphasis added). This self-direction indicates that the judge understood that the insurers carried the evidential burden to either adduce or point to evidence on the record that was sufficient to raise the issue that Mr.

Jantzen had committed a crime, as well as the persuasive burden to prove that fact to the applicable standard of proof. (On the distinction between these two burdens, see, generally: Yorkton (City) v Mi-Sask Industries Ltd. , 2021 SKCA 43 at paras 29–34 , [2021] 6 WWR 18.) [ 24 ] This conclusion still leaves open the possibility that, after correctly articulating the law, the judge nonetheless failed to apply it in his analysis.

Some support for this idea can be found in the following passage from the Judgment : [39] To succeed in her claim , the plaintiff needs to overcome both arguments advanced by the defendants , which are: a. The white powder in the Insured’s possession was cocaine, such that he was in possession of cocaine, a prohibited substance, throughout the chain of events and died while committing a criminal offence. b. The Insured died of an overdose of cocaine and alcohol, having consumed a lethal quantity of cocaine. The Insured died as a result of committing the criminal offence of possession of cocaine.

If the defendants succeed on either argument, the exclusion clauses will enable them to deny coverage and

summary judgment must be granted in their favour. (Emphasis added) [ 25 ] The judge’s statement that the estate “needs to overcome” the insurers’ arguments might suggest that the estate, and not the insurers, carried some sort of burden of proof. However, this excerpt is not all that the judge said about this issue. Paragraph 39 of the Judgment ends with the comment that, “[i]f the defendants succeed on either argument, the exclusion clauses will enable them to deny coverage”.

This statement supports the conclusion that I drew from paragraphs 19 and 22 of the Judgment that the judge properly understood that the insurers carried both the evidential and persuasive burden in relation to the applicability of a relevant exclusion clause. [ 26 ] The judge’s later analysis provides further fortification for my conclusion that not only did he correctly identify the law relating to the onus of proof, but he applied it as well. In relation to the argument that Mr.

Jantzen died while committing the crime of possession of cocaine based on the presence of white powder in his wallet, the judge wrote that the insurers “bear the onus of proof with respect to their reliance on the exclusion clauses (which extends to the presence and characterization of the white powder), but only on a balance of probabilities” (at para 42).

Later, he concluded that the insurers had met this onus, stating “I find on a balance of probabilities that the white powder was cocaine and that it was a measurable quantity” (at para 57). [ 27 ] Based on all of this, I am satisfied that the judge did not err by failing to place an onus on the insurers to prove Mr. Jantzen’s commission of a crime as a prerequisite to their reliance on the exclusion clauses. [ 28 ] The second wing of the estate’s argument under this head is that the judge adopted the wrong standard of proof. The submission is that, by determining that the white substance found in Mr.

Jantzen’s wallet was cocaine, the judge “erred in not applying a standard which, although difficult to precisely define, is nevertheless higher than the usual balance of probabilities” (emphasis added).

[29] The estate’s submission is based on outdated case law. Subsequent to the decisions it relies on, in F.H. v McDougall, 2008 SCC53, [2008] 3 SCR 41, Rothstein J. rejected a similar argument, stating that “it is time to say, once and for all in Canada, that there is onlyone civil standard of proof at common law and that is proof on a balance of probabilities” (at para 40). The judge therefore did not employthe wrong standard of proof when determining that the evidence established the white powder found on Mr. Jantzen’s person to becocaine.

I add only that, in F.H., Rothstein J. confirmed that “evidence must always be sufficiently clear, convincing and cogent to satisfythe balance of probabilities test” (at para 46). I see nothing in the Judgment that would lead me to conclude that the judge misunderstoodthis requirement. [30] For all these reasons, I reject the estate’s argument that the judge erred in law by applying the wrong onus or standard of proof. B. The Controlled Drugs and Substances Act [31] The estate submits that the judge erred “in failing to properly consider ss. 4.1(2) and 4.1(3) of the Controlled Drugs andSubstances Act”.

These provisions, sometimes referred to as the “Good Samaritan provisions”, were added to that Act by the GoodSamaritan Drug Overdose Act, SC 2017, c 4. [32]

Section 4.1(2) of the Controlled Drugs and Substances Act states that no person “who seeks emergency medical or lawenforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of anoffence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having soughtassistance or having remained at the scene”.

Section 4.1(3) provides that this exception “also applies to any person, including the personsuffering from the medical emergency, who is at the scene on the arrival of the emergency medical or law enforcement assistance”. Thelink between these provisions and the facts here is that the criminal offence which the judge found Mr. Jantzen to have been committingwhen he died was a breach of s. 4(1) of the Controlled Drugs and Substances Act, which prohibits possession of certain substances,including cocaine. [33] The estate invites us to conclude that, because of ss. 4.1(2) and 4.1(3), Mr.

Jantzen could not have been charged with orconvicted of the offence of possession of cocaine if medical care had been requested before he died. It then submits that the insurersshould therefore not be able to rely on the fact that he was in possession of cocaine as a basis to deny coverage under the policies. Inadvancing this argument, the estate relies on R v Aube, 2022 NBCA 65.

As part of a longer explanation of these provisions, LeBlanc J.A.stated in Aube that the Good Samaritan provisions were intended “to remove a barrier to medical help being given to a personexperiencing an overdose, and to protect those assisting that person, without fear of being prosecuted for either simple possession or usingdrugs at the same time” (at para 66). [34] This argument was not raised before the judge. It might, for that reason alone, be dismissed.

In any event, it has no merit forseveral other reasons. [35] First, the Good Samaritan provisions do not provide for blanket immunity from criminal liability. This reality is made clearfrom s. 4.1(2). It provides only that a person cannot be charged or convicted of possession, and then only if the evidence in support of thatoffence was obtained or discovered because that person sought assistance or remained at the scene.

Second, the circumstances in which s.4.1(2) operates do not exist here as the evidence in question was not gathered because medical or law enforcement assistance was soughtfor a medical emergency. For these reasons, the Good Samaritan provisions have no application on the facts of this case. [36] In its argument under this head, the estate relies on the trial-level decision in Oldfield v Transamerica Life Insurance Co. ofCanada (1998), (ON SC), 43 OR (3d) 114 (Ct J (Gen Div)), aff’d (2000), (ON CA), 49 OR (3d)737 (CA), aff’d 2002 SCC 22, [2002] 1 SCR 742 [Oldfield].

However, as I see it, that case does not assist the estate on these facts. [37] In Oldfield, the insurer refused to pay the benefit based on the public policy rule that a criminal should not be permitted to profitfrom crime. The Supreme Court of Canada agreed. Speaking for the majority, Major J. explained that this “rule extends to those whoclaim through the criminal’s estate” (at para 15). He also held that it is “consistent with justice that innocent beneficiaries not bedisentitled to insurance proceeds merely because an insured accidentally dies while committing a criminal act” (at para 53).

The paymentof the insurance benefit in Oldfield was, therefore, not refused based on the application of a policy exclusion clause but rather on theapplication of principles of public policy. The outcome here depends on the proper

interpretation of the policy language and not a rule ofpublic policy. This renders the reasoning in Oldfield inapplicable in this case. [38] In conclusion under this head, the judge did not err in his consideration of ss. 4.1(2) and 4.1(3) of the Controlled Drugs andSubstances Act. C. The exclusion clauses [39] The estate’s notice of appeal challenges all parts of the Judgment. However, at the hearing, the estate abandoned the argumentthat the Chambers judge erred in finding that Mr. Jantzen’s death was not associated with his commission of a crime.

In other words, itnow agrees that the insurers were entitled to deny coverage under the LOC policy based on the so-called Associated Exclusion. However,the estate continues to challenge the judge’s conclusion that Mr. Jantzen died while committing the criminal offence of possession becauseof the presence of cocaine in his wallet. [40] For their part, the insurers say that the judge properly found that there is no coverage because Mr. Jantzen died whilecommitting the offence of possession. They say, however, that the judge erred when he found that Mr.

Jantzen’s death was not a result ofhis commission of a crime. [41] Because the so-called Associated Exclusion, found only in the LOC policy, is no longer at issue, I will not further consider it inmy analysis. 1. The While Exclusion

[ 42 ] As I have reviewed, the judge found that, because Mr. Jantzen died while in possession of a measurable quantity of cocaine in his wallet, the exclusion against coverage when death occurs while committing a criminal offence applied. He explained his reasoning as follows: [57] I find on a balance of probabilities that the white powder was cocaine and that it was a measurable quantity.

The cocaine was in the Insured’s possession throughout the relevant time, as the only logical inference is that he placed it in his wallet, secreted or protected within the colorful cardboard enclosure, and it was there from at least the outset of the overdose episode that resulted in his death . [58] With respect to the mental element, if the white powder was probably cocaine, the Insured was familiar enough with cocaine that he would have known what it was, and would not likely have secreted or protected an innocuous substance in his wallet in the same fashion. [59] Accordingly, the Insured died while committing a criminal offence such that the While Exclusion was triggered .

The defendants are entitled to

summary judgment dismissing the plaintiff’s claim. (Emphasis added) [ 43 ] As I read this passage, the judge held that, because at the moment of his death Mr. Jantzen could have been charged and convicted of possessing the cocaine found in his wallet, he had died “while” committing a criminal offence. In coming to this conclusion, the judge simply required that the crime and the insured’s death occur at the same time for the While Exclusion to apply. [ 44 ] The estate takes issue with the judge’s conclusion that the powder in Mr. Jantzen’s wallet was cocaine.

However, I do not need to address its arguments in relation to this finding of fact because I agree with a separate submission made by the estate. As I will explain, the judge erred when he interpreted the exclusion to allow an insurer to deny coverage whenever there is a coincidence in the time when a crime occurs and when an insured dies. [ 45 ] The Mortgage policy is a standard form contract. Therefore, this Court is obligated to review the judge’s

interpretation of it on a correctness basis: Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co. , 2016 SCC 37 at para 4 , [2016] 2 SCR 23 [ Ledcor ]. See also: CE Design Ltd. v Saskatchewan Mutual Insurance Company , 2021 SKCA 14 at para 53 , 455 DLR (4th) 417. [ 46 ] I have no difficulty in accepting that, before an insured can be said to have died while committing a criminal offence, the death and the crime must coincide.

However, this prerequisite does not mean that, in all cases, the mere coincidence in time of a crime and the death of the insured is enough to meet the requirements of the exclusion clause. I reach this conclusion through the application of the principles relating to the proper

interpretation of insurance policies. [ 47 ] In Ledcor , Wagner J. (as he then was) confirmed that when interpreting a standard form insurance contract, the “primary interpretive principle is that where the language of the insurance policy is unambiguous, effect should be given to that clear language, reading the contract as a whole” (at para 49).

In Sabean v Portage La Prairie Mutual Insurance Co , 2017 SCC 7 at para 12 , [2017] 1 SCR 121 [ Sabean ] , Karakatsanis J. cited Ledcor when she wrote that it is only “where the disputed language in the policy is found to be ambiguous, should general rules of contract construction be employed to resolve that ambiguity”. She also observed that, “if these general rules of construction fail to resolve the ambiguity, courts will construe the contract contra proferentem , and interpret coverage provisions broadly and exclusion clauses narrowly” (at para 12).

At the “first step of the analysis for standard form contracts of insurance, the words used must be given their ordinary meaning, ‘as they would be understood by the average person applying for insurance, and not as they might be perceived by persons versed in the niceties of insurance law’” ( Sabean at para 13 , quoting Co-operators Life Insurance Co. v Gibbens , 2009 SCC 59 at para 21 , [2009] 3 SCR 605 [ Gibbens ].

See also: Ledcor at para 27 ). [ 48 ] I am satisfied that an average person applying for insurance would understand that the words used in the Mortgage policy would require a temporal connection between a criminal act and the death of the insured before the exclusion would operate. However, they would also understand the policy to require something more. This additional requirement follows from the idea that a reasonable person would approach their reading of a policy expecting there to be a connection between an exclusion and the risk assumed by the insurer under the policy of insurance.

This nexus is absent if the sole focus is on the mere coincidence in time of the commission of a criminal offence and the death of an insured. It may assist my explanation of this conclusion if I offer some practical examples. [ 49 ] If all that is required for the exclusion to apply is that there be a coincidence in time between the insured’s death and a crime, it would mean that if an insured died in a car accident while wearing a stolen watch, there would be no coverage.

It would also mean that if a person died of a heart attack while watching a television that they had previously stolen, the insurers could deny coverage. It would mean that if, instead of dying of an overdose, Mr. Jantzen had been hit by a bus while he carried his wallet containing the cocaine traces, coverage would have been properly denied by the insurers. In my respectful view, an average person applying for insurance coverage would not think that the insured in any of these scenarios died “while committing” a criminal offence.

One reason for this is that there is no connection between the criminal act and the risk that the insurer assumed under the policy. [ 50 ] Even according to the ordinary meaning of the words used, the policy language does not demand an

interpretation that would allow an insurer to provide coverage in the three circumstances I have described. Instead, the words allow for a more sensible

interpretation, one that would require that the death both occur at the same time as a criminal offence and that the actions that constitute a criminal offence be connected in some way with the death of the insured.

As I see it, that is how an average person applying for insurance would expect the exclusion to operate and that is how the so-called While Exclusion should be found to apply. [ 51 ] Given that the Mortgage policy excludes coverage where death “results” from the commission of a crime, the degree of connection to a crime contemplated by the “while committing” exclusion can be something that is not part of the causal chain leading to the death. Also, the LOC policy excludes coverage where death is “associated with” the commission of a crime.

The later phrase must be accounted for when considering the meaning of the While Exclusion in the context of the LOC policy. Nonetheless, I am satisfied that nothing justifies interpreting either policy to mean that a mere coincidence in time of the commission of the offence and the insured’s death means that the insured died “while committing” a criminal offence within the meaning of the policies.

[52] I would leave to future cases the question of what degree of connection, beyond the coincidence of time, must exist between thecriminal act and the death of the insured before it can be said that an insured has died while committing a criminal offence. I do this forthree reasons. [53] First, in this Court at least, the insurers asserted that the While Exclusion applied only because Mr. Jantzen died with cocaine inhis wallet. However, the judge did not make the necessary findings of fact to establish that this cocaine was connected to Mr. Jantzen’soverdose.

Moreover, this Court is not able to make this finding in the absence of the judge having done so. In the latter regard, there is noevidence as to how long that cocaine had been in Mr. Jantzen’s wallet. There is no evidence that the cocaine he ingested had beenpurchased at the same time as the cocaine found in the wallet. It is at least equally possible that Mr.

Jantzen’s possession of the cocaine inthe wallet and the accompanying paraphernalia was simply coincidental to his possession of the cocaine that he ingested and which led tohis death. [54] Second, there are likely to be few occasions when an insured dies at a moment in time that it can also be said there is noconnection between the criminal act and the death. This case happens to present one such example, but it is because the crime ofpossession can be committed passively and may occur over an expanse of time.

It is better that the further definition of the requiredconnection in doubtful cases be provided in the context of litigation where the outcome may turn on the question. [55] Third, as I will explain, there is a different part of the broader exclusion that fits the facts of this case and that protects theinsurers against the increased risk that these facts present.

This satisfies me that there is no compelling reason to interpret the exclusionagainst recovery when an insured dies while committing a criminal offence to apply when there is no factual connection between the deathand the criminal offence itself. [56] In

summary, the judge erred in finding that the insurers properly denied coverage simply because Mr. Jantzen died with awallet on his person that contained trace amounts of cocaine. [57] However, this conclusion does not end matters. As I have noted, the insurers argue that the judge erred by concluding that Mr.Jantzen’s death was not the result of committing a crime. I therefore turn to consider the judge’s analysis of this issue. 2. The Result Exclusion [58] The judge rejected the insurers’ argument that Mr.

Jantzen’s death was the “result of [him] committing a criminal offence”,within the meaning of the two policies. To reach this conclusion, the judge relied, in large measure, on the correct understanding that,under Canadian law, it is not a crime to consume illicit drugs. Nonetheless, as I will explain, the judge erred when he found that Mr.Jantzen’s death was not the result of his commission of a crime. [59] Before the judge, the insurers accepted the idea that, in order to say that Mr.

Jantzen had died as a result of the commission of acrime, they were required to show a causal connection between the crime and his death. However, they argued that any degree ofconnection is sufficient to meet this requirement. In advancing this proposition, they relied on Morecraft Estate v Prudential AssuranceCo. (1999), (NB CA), 175 DLR (4th) 138 (NBCA) [Morecraft]. [60] In Morecraft, the insured had entered into another person’s home to commit a criminal assault. He attacked his intended victimmultiple times. In turn, the insured was stabbed with a chisel and died from his wounds.

The policy excluded coverage where theinsured’s death resulted from his “committing or attempting to commit a criminal offence” (at para 3). The New Brunswick Court ofAppeal agreed that the exclusion was applicable because the insured had committed or attempted an assault causing bodily harm and hadbeen unlawfully present in a dwelling-house. In reaching this conclusion, Drapeau J.A., speaking for the majority, stated that there was“ample authority for the view that a death results directly or indirectly from the commission of a criminal offence within the meaning ofan exclusion such as exclusion 2(

d) if the violation of the law and the death are events in a sequence and if some element of factualcausation, even a remote cause, is present” (at para 17, emphasis added by the judge at para 72 of the Judgment). The insurers rely on thisstatement to argue that Mr. Jantzen’s illegal possession of the cocaine that he had consumed was a cause of his death within the meaningof the two policies. [61] The judge found that Morecraft was distinguishable on its facts and declined to follow it.

He interpreted the exclusion againstrecovery where death is the “result of” the commission of a criminal offence to require a degree of causal connection between the criminaloffence in question and the death itself that was lacking in the circumstances of this case: [86] Should the sequence of events approach discussed in Morecraft be adopted even though in Morecraft it was unnecessary to rely onsuch a theory? In my view it should not be adopted here. If the court in Morecraft had determined that the attack by Mr. Morecraft on hisvictim did not lead directly to the victim’s actions of self-defence and thus Mr.

Morecraft’s death, it still would be possible to find alogical (non-remote) causal link between the attack and the self-defence response that killed Mr. Morecraft. [87] There is no similarly clear causal link here. Possession of the cocaine did not inevitably lead to its consumption, thereby leading tothe Insured’s death. Rather, the Insured made a choice to consume the cocaine. Possession did not cause his death. I find that he did notdie as a result of committing the possession offence. (Emphasis in original) [62] The insurers argue that the judge erred in this analysis.

In doing so, they largely renew the arguments they made before him. [63] I begin my consideration of their submissions by expressing my agreement with the idea that, before liability can be deniedwhere death is the result of the commission of a crime, there must be a causal connection between the criminal act and the death. This ideaaccords with basic dictionary

definitions, which define “result” as being the “effect, consequence, or outcome of some action” (OxfordEnglish Dictionary Online (Oxford University Press, December 2022)). However, in my respectful view, the judge misunderstood theimplications of this in the context of these policies. His misunderstanding arose when he found that possession of the cocaine “did notinevitably lead to its consumption, thereby leading to [Mr. Jantzen’s] death” and when he further held that Mr. Jantzen had “made a

choice to consume the cocaine” (at para 87). Let me explain. [ 64 ] The judge did not clearly explain why the fact that Mr. Jantzen’s illegal possession of the cocaine “did not inevitably lead to its consumption” and the fact that Mr. Jantzen had “made a choice to consume the cocaine” meant that the exclusion did not apply (at para 87). However, it seems that he was operating under one of two different

interpretations of the exclusion. It is possible that the judge read the exclusion to require not just that the death be the effect, consequence or outcome of Mr. Jantzen’s crime, but that the criminal act be the sole , exclusive or only cause of death before coverage could be denied under it. Alternatively, the judge may have been of the view that Mr. Jantzen’s decision to consume cocaine was an intervening event that rendered the illegal act of possession too remote to qualify as a cause of his death. In my respectful view, neither idea has a place under the proper

interpretation of the policies. [ 65 ] The notion that the exclusion operates only if the insured’s criminal act is the sole, exclusive, or only cause of death is a requirement that does not appear in the language of the exclusion clause itself. It is also not one that would, on a natural reading of it, be understood to be contained within it. [ 66 ] The facts that the judge used to justify his conclusion that Mr. Jantzen’s death was not caused by a criminal act are true. Mr. Jantzen’s possession of the cocaine he ingested did not inevitably lead to its consumption. It is also accurate to say that Mr.

Jantzen made a choice to consume cocaine. However, none of this obviates the additional undisputed fact that Mr. Jantzen could only exercise the choice of consuming cocaine because he was in illegal possession of it. In other words, Mr. Jantzen’s possession of the cocaine was a cause of his death in the sense that, but for the fact that he possessed it, he could not have consumed it and, had he not consumed it, he would not have overdosed from it and died. [ 67 ] I also reject the idea that Mr.

Jantzen’s deliberate decision to ingest the drug somehow broke the causal chain or rendered his illegal act sufficiently remote such that it no longer remained a cause at law of his death. Realistically, there could only be two purposes for Mr. Jantzen to possess cocaine; that is, to ingest it or to provide it to another person. The latter is itself a criminal act. More importantly, Mr. Jantzen’s actions confirm that he committed the illegal act of possessing cocaine for the purpose of using it.

In this circumstance, because the very purpose for his criminal act was for him to undertake the action that led to his death, it cannot be said that his consumption of the drug was an intervening act or an event that broke the chain of causation between the crime and his death. The judge erred in concluding otherwise. [ 68 ] It also cannot be said that the fact that Mr. Jantzen did not intend his ingestion of cocaine to result in an overdose, much less his death, in some way affects the operation of the exclusion.

To suggest that it did would import into the exclusion a requirement that the insured intend their death. Such an

interpretation is not required by the words of the policy. It is also not what a reasonable person would expect the policy to provide for at the time they applied for coverage. [ 69 ] Finally, and for completeness only, I would add that, because foul play was ruled out, we can be satisfied that the cocaine that caused Mr. Janzen’s death was not administered by a third party. Mr. Jantzen’s death was caused by his illegal possession of cocaine before he consumed it, together with his ingestion of it. [ 70 ] In

summary, I can accept that a criminal act alone was not the cause of Mr. Jantzen’s death. However, had Mr. Jantzen not committed the criminal act of possessing cocaine, he could not have consumed the drug and then also could not have died from an overdose of it. In my respectful view, all of this renders Mr. Jantzen’s illegal possession of the cocaine a sufficient cause of his own death to fall within the scope of the exclusion. I return to the direction given in Gibbens , Ledcor and Sabean .

Subject to the possibility that a crime is only remotely connected to the insured’s death, a point which I will come back to, the words of this exclusion, as understood by the average person applying for insurance, require only that the criminal act be one of the causes of death, not that it be the only cause of death, for it to apply. [ 71 ] I find additional support for this

interpretation of the exclusion in Valentyne Estate v The Canada Life Assurance Company , 2018 BCCA 484 at para 30 , 430 DLR (4th) 683 . In that case, the British Columbia Court of Appeal distinguished the exclusion against recovery where an insured dies while committing a criminal offence from the exclusion against recovery where death is a result of a criminal act based on the idea that the latter requires there to be a causal connection between the criminal act and the death.

Justice Bennett, speaking for the Court on that occasion, grounded this conclusion, in part, on the following passage from Norwood at 462: Causal connection would not seem to be required where the provision excludes death while committing or attempting to commit a criminal offence, but it would appear to be necessary where the exclusion is for death resulting from committing or attempting to commit such an offence.

If a bank robber rushes onto a roadway in the course of making a get-away and is knocked down by a car, the causal connection would be established , but if he is casually strolling on the sidewalk away from the scene of the crime, and a brick falls on the robber’s head, it would seem that the claim for the accidental death insurance benefit may still be made. (Italicized emphasis in original; underlined emphasis added) [ 72 ] The first example given in Norwood illustrates the point I am making. Mr.

Jantzen’s situation is much like that of the bank robber who died because he ran onto a roadway after committing a bank robbery. In the Norwood example, the criminal offence is the robbery, not the rushing onto the roadway, yet the causal connection between the crime and death exists because the action leading to the death only occurred because of the criminal act. So too, here: Mr. Jantzen only died because he had committed the offence of possession of cocaine. It is true that an overdose death is not the inevitable consequence of the commission of the offence.

However, the same is true of the death of the robber who rushed onto the roadway after he had committed the crime. [ 73 ] The earlier quoted passage from Morecraft would suggest that if a criminal act is even a very remote cause, the exclusion will operate. However, I would not interpret the decision to say that whenever a criminal act plays a causal role the exclusion operates. Instead, I accept that, at some point, even if a cause in fact, a criminal act may be sufficiently remote that it cannot be said that death is a result of it.

The second example found in Norwood illustrates this idea. [ 74 ] Norwood suggests that if the bank robber had been strolling away from the site of the crime and was then struck and killed by a falling brick, the required causal connection between the crime and the insured’s death may not exist. In this scenario, the perpetrator was

at the place they were struck only because they had committed a crime. Accordingly, it can be said that but for the commission of the crime, the perpetrator would not have died. Nonetheless, Norwood takes the view that the death did not “result” from the criminal offence in the sense required by the exclusion. I take the proposition to be that, although the robber might not have been at the place they were struck had they not committed the crime, the manner of their actions, and hence their death, was not influenced by their crime.

This implies that, at some point, the criminal act is simply too distantly connected to the death to be considered a cause of it. [ 75 ] For the purposes of this case, I need not decide when a criminal act that is part of the causal chain is so remote that it cannot be said that the death in issue is its result within the meaning of the exclusion. I can avoid defining this point because, in this case, there is nothing distant about the connection between Mr. Jantzen’s criminal act and his death. Here, Mr. Jantzen could not have died if he had not possessed cocaine and then ingested it.

Because foul play was ruled out, there was a direct and unbroken connection between Mr. Jantzen’s illegal possession of cocaine and his death. [ 76 ] For these reasons, on a proper

interpretation of the two policies, Mr. Jantzen’s death was the result of his illegal possession of cocaine. The insurers were, therefore, entitled to deny coverage under the two polices on this basis. V. CONCLUSION [ 77 ] The judge erred when he found that there was no coverage under the two policies because Mr. Jantzen possessed a small quantity of cocaine in his wallet when he died. However, the insurers properly denied coverage because Mr. Jantzen died as a result of committing the crime of possession of the cocaine that he consumed. Accordingly, as a bottom line, the judge did not err in granting the insurers

summary judgment dismissing the claim against them. [ 78 ] For these reasons, the estate’s appeal must be dismissed. The respondents, who were represented by the same counsel, are entitled to one set of costs, calculated in the usual way. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “McCreary J.A.” McCreary J.A.