[ 6] The figures in the table of non-forfeiture values on p. 3 of
the policy are the same as the table of guaranteed paid-up values in the quote, save for the fact that the values on p. 3 are per
$1,000 of the face amount coverage and the values from the
quote are per $5,000 of the face amount coverage.
[ 7] Mr. Alguire’s position at trial was that he had asked that
the policy be specifically designed to ensure that the value of the
death benefit grew over the course of his life. He submitted that
the policy provided him with immediate $5 million coverage
together with inflation protection over the long term. According
to him, the paid-up values on p. 3 of the policy reflect his request
for inflation protection.
[ 8] Mr. Alguire commenced an action seeking, among other
things, an order requiring Manulife to honour the terms of the
policy as written — particularly on p. 3. Manulife took the position that Mr. Alguire never made a request for inflation protection. It submitted that the values on p. 3 of the policy were
clearly created in error. Manulife brought a cross-application
seeking rectification of the policy.
[ 9] The trial judge dismissed the action after an 18-day trial.
He found that the values on p. 3 were set out in error, and
reflected a common mistake, as the policy did not accurately
reflect the agreement of the parties. He specifically found that
Mr. Alguire never requested inflation protection. He ordered
that the policy be rectified to reflect the agreement of the parties
that the paid-up values on p. 3 were per $5,000 of the face
amount coverage. He also rejected Mr. Alguire’s submission that
Manulife’s request for rectification was barred by the
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
[ 10] The trial judge ordered substantial indemnity costs
against Mr. Alguire in the amount of $1,250,000. He found that
this was one of those rare instances where a party’s conduct
ought to be chastised by the court through an award of costs on
a higher scale. The impugned conduct was Mr. Alguire’s inflation
protection submission, which the trial judge found lacked any
air of reality. He rejected Mr. Alguire’s version of events, and
equated the proceedings with “gotcha” litigation.
[ 11] On appeal, Mr. Alguire does not challenge the trial judge’s
credibility findings. He focuses on two issues: ( i) the trial judge
erred in finding that rectification was an available remedy; and
( ii) even if rectification was available on the facts of this case, it
was statute-barred by operation of the Limitations Act. In addition, he seeks leave to appeal the costs award on the basis that it