|Suspicion isn’t enough!|
In the recently reported Provincial Court case of Slawter v. ICBC, 2011 BCPC 0419, Judge St. Pierre confirmed that more than mere suspicion of a breach of policy is required to deny a claim. In this case, the claimant argued that his car was stolen and burned. He made a claim for the replacement value of the vehicle and was denied by ICBC.
ICBC asserted that the denial was warranted as their “investigation” revealed that there were some “inconsistencies” in the claimant’s reporting on certain items, such as the location of his keys. Accordingly, ICBC alleged that the circumstances of the theft and destruction of the vehicle by fire led to the conclusion that the claimant had some responsibility for the theft.
Reasons in ICBC Injury Case
In his reasons, Judge St. Pierre affirmed that there is one standard of proof for trying civil matters: a balance of probabilities:
 The Supreme Court of Canada said [see F.H. v. McDougall, 2008 SCC 53] … that there is only one standard of proof in a civil case and that is proof on a balance of probabilities.The Court said that there is only one legal rule that applies in all cases and that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an alleged event has occurred.
 In other words, what the Supreme Court of Canada is saying is that trial judges are responsible for scrutinizing evidence carefully regardless of whether there is a serious allegation of fraud or sex assault or something else.
The court held that the claimant successfully proved that his car had been stolen and that he was entitled to indemnification from ICBC as an insured. In respect of ICBC’s claim to the contrary, Judge St. Pierre said the following:
In considering all of the evidence, I have to say there is no evidence to refute or to contradict Mr. Slawter’s claim that he was driving the vehicle on July 19th and that he was home that evening and that his vehicle was missing later.
There is suspicion; there are facts that were brought out by the defence and inconsistencies within the story and version of Mr. Slawter and various witnesses that could lead one to conclude that there is suspicion about how this vehicle went missing, but in my mind he has led enough evidence to prove that he has established on the balance of probabilities that he was covered that day and that he suffered a loss.
I am convinced that Mr. Slawter had a valid policy of automobile insurance on July 19th, 2009, that he suffered a loss on that day.There is only speculation to suggest otherwise.
I come to this conclusion not simply because he testified under oath that he suffered a loss, in fact if those earlier cases stood for the proposition that that was enough, then they are wrong.The Court must consider all of the evidence.I have to be convinced on a balance of probabilities that Colin Slawter suffered a loss and is entitled to compensation under his policy on the date of the loss.
In this case the question comes down to whether the defendant has met, on a balance of probabilities, that there was a breach in terms of a policy of insurance. Again in my mind looking at all of the evidence that the defence has pointed to with respect to this matter, what it all boils down to is there is lots of speculation involved, there are lots of reasons to be suspicious, but the evidence has to meet a clear standard and that is the standard of balance of probabilities that under s. 75(b)and (c) of the Insurance (Vehicle) Act it has been established that there was fraud, that there was misleading and wilfully false statements that was material and capable of affecting the insurer’s model.
 With respect to the fraud, I do not think that any evidence has established that. There is certainly evidence capable again of raising a suspicion, but there is no clear and cogent evidence that meets the standard of a balance of probabilities. By using those words “clear and cogent” again I do not mean to say that that is some kind of different standard; the evidence has to be clear and cogent in any case where a standard of proof has to be met on a balance of probability.
Whether Mr. Slawter made wilfully false statements that were material, I find the statements that he did make that were vague and perhaps inaccurate have not been proved to have been made wilfully.Memories suffer from passage of time.They suffer from a number of different human foibles and weaknesses, but in this case I listened carefully to all of the evidence and I could not conclude at all on the balance of probabilities that Mr. Slawter made in the course of this claim and its investigation any wilfully false statements to the Insurance Corporation of British Columbia, and on that basis I have to find in his favour, that he is entitled to be indemnified for his losses.
Damages in ICBC Injury Case
In the result, the claimant was awarded $8,256.08 for the loss of his car. He was awarded an additional $2,427.54 for the cost of a rental car.
For an encore, ICBC argued that the Provincial Court Rules do not allow a successful party to recover disbursements: costs of faxes, photocopies etc. The Court disagreed with that interpretation and awarded the claimant disbursements in the amount of $911.38.
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