The Court held that the insurer had not satisfied the onus of providing “clear and cogent evidence” required to establish the quasi-criminal allegation of fraud on the part of the insured

Kemp v. Insurance Corp. of British Columbia, [2005] B.C.J. No. 2126, British Columbia Provincial Court

The insured claimed compensation from the Insurance Corporation of British Columbia (the “ICBC”) for the loss of his vehicle which he claimed was stolen. The insured’s claim was denied by the ICBC on grounds of fraud.

The ICBC submitted that the following were indicative of fraud: (a) the forensic locksmith opined that a working or close key was the most likely method of theft, (b) the vehicle was recovered very quickly after it was stolen, (c) the vehicle was found torched, (d) the insured gave inconsistent statements at various times as to whether the alarm system was working, and (e) the insured could have parked his vehicle in a parking lot much closer to his destination where “he could keep his eye on it”.

The Court found the insured to be a credible witness and found that the insured had established a prima facie case of theft within the ambit of his insurance policy.

The Court found that the theory of the ICBC was no more than mere speculation. The Court referred to previous case law which had commented on the sophistication of car thieves in the Lower Mainland and the easy availability of “close keys” or duplicate keys by persons unrelated to the owner of a vehicle.

The Court concluded that the ICBC had failed to satisfy the onus of providing the “clear and cogent evidence” required to establish the quasi-criminal allegation of fraud. The ICBC was liable to the insured for the loss suffered.

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