[2010] B.C.J. No. 1771

2010 BCPC 222

British Columbia Provincial Court

T.S. Woods Prov. Ct. J.

September 8, 2010

The plaintiff sought to be indemnified by the defendant, ICBC, pursuant to two policies of motor vehicle insurance after two of his vehicles were damaged. ICBC declined to indemnify the plaintiff on the basis that he had not proven that he had suffered losses and damages falling within his coverage. ICBC also asserted that the plaintiff forfeited his right to indemnity by having made false statements with respect to the claims and by misrepresenting that he was the principle operator of both vehicles.

The onus initially rests with the Insured to prove the losses and damage. The onus then shifts to the insurer to prove that there are affirmative defences, if coverage is denied. The Court considered the standard of proof that is required to meet the onuses. Given the Supreme Court of Canada decision in F.H. v. McDougall, [2008] 3 S.C.R. 41, there is only one standard of proof in civil cases: the balance of probabilities. Therefore, the plaintiff was required to prove, on a balance of probabilities, that he suffered losses and damages that fell within his coverage. Then the onus shifted to ICBC to prove, on a balance of probabilities, that there were affirmative defences upon which coverage was denied.

The Court found that the plaintiff did not discharge his onus. His action was dismissed in its entirety. The Court stated, in obiter, that even if the plaintiff had met his onus, the evidence established that the plaintiff had made false statements and misrepresentations which invalidated his coverage.