27 June 2019 11:30
Intact Insurance was obliged by the Court of appeal, to indemnify an insured for which the building has been the subject of illegal production of cannabis. This judgment follows a decision made in 2016, in which the insurer had been successful.
After you have discovered a system of cannabis production in the interior of a building of which he was the landlord, Eric Cousineau, a man of affairs, has not been able to obtain compensation from its insurer, despite the fact that he subscribes to an all risks insurance. The insurer argued that the applicant was aware of what was happening in her property.
This is Maurice Charbonneau, president and attorney in Charbonneau, counsel, who had noted the existence of this judgment in the Journal of the insurance.
Refusal on the part of the insurer
Mr. Cousineau is the owner of a building in Granby and would like to rent out for commercial purposes. It has thus made contact with a man named Patrick Cyr, who said wanting to use the building for installation of a garage of automotive industry, to sell ” products and related maintenance, to store and to sell bikes. An agreement was concluded by an “oral lease” in December 2012.
Some time later, the applicant realized that his tenant had not paid his rent, and transferred the electricity bill at his expense. As well, he made it to place to realize that there was no activity related to the automobile in the building. It communicates immediately with the police Department of the municipality of Granby.
At the time of the search, it is also revealed, after the analysis of fingerprints, that the tenant was not named Patrick Cyr, but Patrick Seguin, an individual with a criminal history.
In addition, a number of clandestine activities were also conducted inside the building. “On June 14, 2013, after having obtained a warrant, the investigator Alexandre Labrecque performs a search and finds that there has been “a plantation hydroponic cannabis inside the building, and [that] the smell of cannabis is very perceptible.” It is also noted that the equipment and Mr. Séguin are gone, ” one can read in the judgment.
Intact has subsequently refused to pay a claim of Mr. Cousineau, stating that the appellant was aware of what was happening in the institution.
Recordings of Mr. Séguin
In November 2014, the defence filed a motion to institute proceedings in warranty against Patrick Seguin. A few days after the filing of the petition, Mr. Séguin contact Me Jessie Courteau, a lawyer who works at the same firm as the lawyer in charge of the folder Intact, Danielle Archambault, to ask him to drop the request for exchange of information on the case.
Several discussions have followed, five of which have been recorded. During these exchanges, Patrick Seguin says that Eric Cousineau was aware of everything that happened in his building. In addition, Mr. Séguin said that the whole purpose was to conduct an insurance fraud.
The judge of first instance, Suzanne Mireault, later admitted the recordings of these calls and the transcription of them, as a testimony, leading to the decision to make the insurance policy null and void ab initio.
The validity of the testimony questioned
Several mistakes have been made, according to the judges Marie-France Bich, Manon Savard and Mark Schrager of the Court of appeal.
The late filing of records and transcripts is the first. “I believe that the request made at a very late stage by the respondent, although she does not take them completely by surprise, the “private […] of the weapon invaluable in the contrinterrogatoire which has always been one of the points of support of the fairness to our courts,” says the judge Schrager.
Then, the testimony of Patrick Séguin was not reliable enough and should not have been admitted in court, argue the judges. Indeed, in the judgment of 2016, the judge Mireault said : “even if [Seguin] is a criminal and he has used prevarication and showed reluctance in its comments to Danielle Archambault and Me Courteau, the undersigned is convinced, on the balance of probabilities, that he has told the truth…”, which, according to the Court, does not meet the criteria in terms of reliability.
This is sufficient to exclude this evidence. Without records, there is no more way to prove that Mr. Cousineau was beautiful and well aware of these illegal activities, it supports the Tribunal.
The Tribunal will decide
The judges say that an error of law has been committed and that “the appellant would have had to win the case in the first instance”.
However, “the insurer has not acted improperly in conducting an investigation. This inquiry has led to Seguin, whose testimony, if it had been validly put into evidence, would have been able to justify the refusal of payment of insurance indemnity”.
Intact has been ordered to pay 43 111,60 $, less a deductible of $ 2500 with interest and the additional indemnity provided to the applicant. This amount includes the costs of the repairs to the nine-arising of the claim, assessed by a claims adjuster appointed by Eric Cousineau.
Note that Mr. Cousineau had a total of 1 066 313,35 $), including amounts for damages.