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Theft, Polygraph, and Presumptions: The Court of Appeal Sets the Record Straight

By Patrick Henry, from our Insurance Law Group

February 4, 2022 — 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, 2021 QCCA 1979, reversing a decision of the Superior Court  (2018 QCCS 3520) 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.

An insured with a sketchy past

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’s possession after the theft and were handed over to the insurer’s 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’s 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’s 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.

The evidence needed

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), 2015 SCC 35, [2015] 2 SCR 621, the Court explains that the proven facts must lead to presumptions that will be:

  • Serious: the relationship from the known fact to the unknown fact must be such that the existence of one establishes the existence of the other in a clear and obvious manner;
  • Precise: the conclusions that flow from the known fact tend to establish the contested unknown fact in a direct and specific manner, without the possibility of drawing different and even contrary results;
  • Concordant: from a common or different origin, they must tend to establish the fact to be proved without however contradicting or neutralizing themselves.

A presumption is not a mere hypothesis, a speculation of suspicions or mere conjectures, as the Court stated.

The Court also restates the rule that a trial judge must consider all the evidence and, if dismissing part of it, must explain why. Finally, as we have already pointed out at conferences, the polygraph test is not admissible in evidence and its operator cannot be recognized as an expert witness, which the trial judge had not done either. As for “discussions” recorded on video by the polygraphist before and after the test, they can be accepted as previous statements, under article 2870 of the Civil Code of Québec, but the Court must question the “methods of interrogation” that it qualifies in this case as “questionable”.

This judgment is therefore of great interest to insurers in that it sets very precise guidelines as to the quality of the evidence required in terms of presumptions and an up-to-date statement of the criteria to be met.