This case clarifies what an insurer in Saskatchewan must prove when it raises arson as a defence. The Saskatchewan Court of Appeal determined that the defence of arson will be granted when the totality of evidence establishes arson on a balance of probabilities. There is no threshold requirement that the insurer prove the incendiary nature of a fire before the Court may proceed to consider evidence relating to opportunity, motive and credibility.
In the criminal case of R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154, the Supreme Court of Canada determined that evidence tending to establish identity, such as motive and opportunity, can be considered as evidence going to prove the incendiary nature of a fire when arson cannot be proved by direct evidence. As there cannot be a higher standard of proof in a civil case than in a criminal case, the standard of proof set in R. v. Monteleone, applies to an insurer claiming arson as a defence in a civil context. It was found that circumstantial evidence supported the position of Saskatchewan Government Insurance that a fire was deliberately set by the Director of Lancer Enterprises Ltd. Saskatchewan General Insurance did not have to eliminate the reasonable possibility of a natural or accidental fire before the evidence of motive, opportunity and credibility could be considered. It was necessary that the totality of the evidence be looked at and an inference be drawn as to the incendiary origin of the fire from incuplatory evidence linking the Director to the fire.
March 9, 2011
Link to Decision
Kaitlind de Jong
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