RETHINKING THE MATERIALITY REQUIREMENT FOR NON-DISCLOSURE AND MISREPRESENTATION IN INSURANCE CONTRACTS

Abstract

Access to private insurance funds has become increasingly important in the neo-liberal state. Accurate risk assessment and actuarial equity are essential for ensuring the viability of insurance as a mechanism for managing risks, which in turn depends on proper disclosure of material risks. This article examines the purpose and scope of the disclosure duty, and remedies for breach of that duty in the context of personal insurance contracts. The current position in Canadian common law jurisdictions may be detrimental to the interests of insureds and beneficiaries. The article proposes reforms to the test for materiality and remedies for breach aimed at protecting the interests of insurers and the reasonable expectations of insureds.