{"id":21396,"date":"2022-02-04T12:00:10","date_gmt":"2022-02-04T17:00:10","guid":{"rendered":"https:\/\/www.rsslex.com\/?p=21396"},"modified":"2022-02-04T15:02:54","modified_gmt":"2022-02-04T20:02:54","slug":"20220204_theft-polygraph-and-presumptions-the-court-of-appeal-sets-the-record-straight","status":"publish","type":"post","link":"https:\/\/www.rsslex.com\/en\/bulletins-en\/20220204_theft-polygraph-and-presumptions-the-court-of-appeal-sets-the-record-straight\/","title":{"rendered":"Theft, Polygraph, and Presumptions: The Court of Appeal Sets the Record Straight"},"content":{"rendered":"

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The Court of Appeal of Quebec has rendered a very important decision just before the holidays in Michael Bruni Transport Inc.c. Aviva Insurance Company of Canada<\/em>, 2021 QCCA 1979<\/a>, reversing a decision of the Superior Court \u00a0(2018 QCCS 3520<\/a>) and ordering the insurer to compensate its insured for the theft of its truck. This judgment is of interest in all cases where an attempt is made to prove an intentional act by the insured.<\/p>\n

An insured with a sketchy past<\/h2>\n

A 2012 Kenworth dump truck leased by the appellant disappears during the holiday season while parked in a fenced and padlocked yard monitored by cameras. Four keys to the vehicle, the only ones in existence, were still in the insured\u2019s possession after the theft and were handed over to the insurer\u2019s claims adjuster. For technical reasons, when access to the videotapes was possible, they were no longer available for the period in question. The truck had been put up for sale on Kijiji several months earlier, but without success. As explained by the trial judge, the insured was facing financial, yet not untenable difficulties. In addition, the insured\u2019s sole shareholder apparently had skeletons in his closet, having organized the theft of two of his personal vehicles some twelve years earlier. Contradictory statements by the insured and some answers during a polygraph test had raised the insurer\u2019s suspicions. Were these serious, precise and consistent presumptions? The Court of Appeal was not persuaded because it criticized the trial judge for not having considered a whole piece of the evidence which, had she done so, would have called into question the very existence of the presumption.<\/p>\n

The evidence needed<\/h2>\n

This judgment is important because it specifies and restates the principles underlying such evidence. Restating the principles set out by the Supreme Court of Canada in Hinse v. Canada (Attorney General)<\/em>, 2015 SCC 35<\/a>, [2015] 2 SCR 621, the Court explains that the proven facts must lead to presumptions that will be:<\/p>\n