Broker liable to insurer for losses paid on policy; Tendering the discovery evidence of an adverse party does not make the adverse party a witness in the tendering party’s case

In Fleet v. Federated Life and Bellefontaine, 2008 NSSC 231 (CanLII), an insurance broker was found liable to re-imburse the insurer for payments made on a life insurance policy, where the broker inserted misleading answers about the insured’s health in an application for life insurance, and then forged the insured’s signature.

At trial, counsel for the plaintiff entered the broker’s entire transcript from the examination for discovery.  The broker chose not to take the stand as a result, arguing that the plaintiff was bound by the evidence tendered, which denied that the broker forged the insured’s signature.

Justice G. Moir found that entering an adverse party’s discovery evidence does not make the adverse party a witness in the tendering party’s case, and therefore the tendering party is not bound by the adverse party’s discovery evidence.

His Lordship also found that the broker breached his contractual and fiduciary duties to the insurer, and was liable to reimburse the insurer for the amounts owed to the insured under the policy.