Whitford’s action against his motor vehicle insurer (“ICBC”) for damages suffered as the result of the theft of his vehicle was allowed where the court found that ICBC failed to establish that Whitford was involved in or procured the theft of the vehicle
Whitford v. Insurance Corp. of British Columbia,  B.C.J. No. 2075, British Columbia Provincial Court
Whitford’s vehicle was allegedly stolen and destroyed by fire on September 17, 2000. Whitford claimed the cost of the vehicle under his motor vehicle policy with ICBC. ICBC denied the claim on the basis that Whitford had not proven that there was a theft and was not entitled to any insurance money. Whitford commenced an action against ICBC for monies owing under his policy.
The court pointed out to counsel for ICBC that the onus was on ICBC to establish that Whitford was involved in or procured the theft and that this assertion must be established by clear and cogent evidence. The court referred to the two part test in Kolesnykov v. The Insurance Corporation of British Columbia, 2004 BCSC 173:
- The initial burden of proof is on the Claimant to prove that the loss has fallen within coverage and a simple assertion under oath or affirmation that the vehicle was taken without the Claimant’s consent is sufficient to prove that a claim comes within coverage. The Claimant does not have to prove that he or she did not participate in the loss; and
- ICBC must then meet the legal burden of proof upon it to prove intentional conduct on the part of the Claimant amounting to fraud on a balance of probabilities by presenting clear and cogent evidence of fraud.
The court reviewed the expert report of ICBC which was tendered to establish that no theft had occurred as the lock had not been tampered with. The court found that the author of the report identified areas of uncertainty in his own opinion and, as a result, the court was not satisfied that this was “clear and cogent evidence” that Whitford had committed a fraud against ICBC. The court further noted that it was not satisfied that Whitford lied in court and found him to be a credible witness.
In the result, the court granted judgment to Whitford for the full amount of his claim.
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