2012 NBCA 75, 2012 NBCA 75

COURT OF APPEAL OF NEW BRUNSWICK 152-10-CA ROBERT B. RICHARDSON and SHARON RICHARDSON (Plaintiffs) APPELLANTS ROBERT B. RICHARDSON et SHARON RICHARDSON (Demandeurs) APPELANTS - and - - et - DERRI SMITH and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM FIRE AND CASUALTY COMPANY (Defendants) RESPONDENTS DERRI SMITH and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et STATE FARM FIRE AND CASUALTY COMPANY (Défendeurs) INTIMÉS Richardson v. Smith and State Farm Mutual Automobile Insurance Company et al., 2012 NBCA 75 Richardson c.

Smith, State Farm Mutual Automobile Insurance Company et autre, 2012 NBCA 75 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Be ll L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: October 18, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 18 octobre 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 343 Décision frappée d’appel : 2010 NBBR 343 Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 356 (QL) Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 356 (QL) Appeal heard: March 21, 2012 Appel entendu : Le 21 mars 2012

Judgment rendered: August 23, 2012 Jugement rendu : Le 23 août 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Bell The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Quigg Counsel at hearing: For the appellants: Steven P. Gallagher For the respondents: Thomas G. O’Neil, Q.C. and Matthew T. Hayes Avocats à l’audience : Pour les appelants : Steven P. Gallagher Pour les intimés : Thomas G. O’Neil, c.r. et Matthew T. Hayes THE COURT The appeal is dismissed.

The appellants are ordered to pay costs in the amount of $1,500. LA COUR Rejette l’appel et condamne les appelants à des dépens de 1 500 $. The judgment of the Court was delivered by GREEN J.A. I. Introduction [ 1 ] This case explores the standard of proof applicable to insurance claims in which arson by the insured is alleged as a defence, and specifically poses the question of whether there must be proof of motive in order to make a finding an insured has committed arson. [ 2 ] The appellants owned a home situated on 3.2 acres of land in Sainte-Marie-de-Kent, New Brunswick.

They insured their home and certain items of personal property with the defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company, through the defendant Derri Smith, an agent for State Farm. Three policies of insurance are at the centre of this litigation: a homeowners’ policy on the house, a policy on a Coachman motor home, and a policy on a PT Cruiser automobile. [ 3 ] State Farm denied coverage under their policies, alleging the fire had been deliberately set by the appellants. The Richardsons commenced legal action.

In a decision reported at 2010 NBQB 343 , 364 N.B.R. (2d) 308 , a judge of

the Court of Queen’s Bench dismissed their action with costs. The Richardsons now appeal. For the reasons which follow, I would dismiss the appeal with costs to the respondents. II. Background [ 4 ] The appellants purchased their home, a bungalow with an attached garage, in 1998.

Various improvements were made to the property over the ensuing years: the basement was finished, including two new bedrooms and a recreation room; the attached garage was converted to a family room; and, a detached three-car garage was constructed. [ 5 ] At the time the property was purchased, the appellants had a son who was one year old. Mr. Richardson had two daughters from a previous marriage, the youngest of whom resided with them until she was sixteen years of age.

In addition, the appellants served as foster parents to a number of children whose ages ranged from 12 to 18, many of whom were involved with the justice system. Approximately one year prior to the incidents described below, the appellants ceased to be foster parents. [ 6 ] In April 2004, the appellants listed their property for sale. The reason for the decision to sell was that Mrs.

Richardson, whose mother had recently passed away, felt she should be with her father. [ 7 ] The following vehicles were owned by the appellants, and were kept on their property: (a) 1987 Coachman motor home (b) 2003 Chrysler PT Cruiser (c) 1993 Oldsmobile 98 (d) 1997 Pontiac Sunfire (e) 1991 Mazda MPV (

f) Polaris 500 ATV (

g) Suzuki ATV (

h) Formula 1 Snowmobile (

i) Phazor Snowmobile (j) 3 Tiger Shark Jet Skis (k) 1987 Speedboat (

l) Ford Ranger (year unknown) (

m) Antique Model T Ford (circa 1923), and (

n) Sears Ride-on Lawn Tractor. Only two of these vehicles were insured: the motor home and the PT Cruiser. [ 8 ] The appellants testified that on the night of May 26, 2004, they were at home. Mrs. Richardson was asleep in the master bedroom with their son, and Mr. Richardson had fallen asleep on a couch while watching television. Mr. Richardson’s testimony was to the effect that he was awakened by the dog growling, saw lights flickering outside, went to the window, and observed the Oldsmobile was on fire. He called 911, and then went outside. Mrs.

Richardson testified that when she went outside, she saw her husband with a water hose. The RCMP visited the fire scene on the afternoon of the 27 th . [ 9 ] The appellants advised the Derri Smith Insurance Agency of the fire on May 27 th . An employee of the agency advised the appellants the Oldsmobile was not insured. Mr. Richardson then inquired about his existing

coverage. In the course of the conversation that followed, Mr. Richardson increased the coverage under the contents portion of his homeowners’ policy from $75,000 to $200,000, and the coverage on the detached garage to $50,000. Mr. Richardson also inquired about insuring the Model T Ford, and was advised that an appraisal would be required before the vehicle could be insured. [ 10 ] On the night of May 27 th , the appellants remained at home, although Mrs. Richardson testified that she was very upset and concerned for the safety of her family.

The appellants remained awake through the night. [ 11 ] The following night, Mrs. Richardson took her son and went to the nearby home of the Goguens, who were friends of the appellants. She asked if they could spend the night, and were welcomed to do so by the Goguens. Mrs. Richardson travelled to the Goguen residence in one of the uninsured vehicles owned by the appellants, even though the PT Cruiser was her personal vehicle and was the vehicle she usually used. The PT Cruiser remained parked at the appellants’ home. [ 12 ] Mr. Richardson remained in the family home on the night of May 28 th .

He described the physical scene at the property that night. The PT Cruiser and the Coachman motor home were parked in front of the family room. He slept in the master bedroom, and believes he locked all the doors to the house. Mr. Richardson testified that he telephoned his wife at approximately 11:00 p.m., and then fell asleep. [ 13 ] According to Mr. Richardson’s testimony, the next thing he remembers was waking up to see lights outside the home and hearing voices. There were one or two female voices, and two or more male voices. Instead of getting up to investigate, Mr. Richardson went back to sleep.

His next memory is of the ADT alarm waking him, getting out of bed, and jumping out the bedroom window. [ 14 ] The alarm incident report from ADT disclosed the following: 04:07:35 Fire-Smoke Detector 04:08:57 Dialed Richardson Residence 04:09:04 Line Busy 04:09:23 Dialed Richardson Residence 04:09:30 Line Busy 04:09:46 Dialed Fire Department 04:09:50 Notified Fire Department 04:11:00 Dialed LeBlanc Residence (Neighbour) 04:12:40 Answered by Floria [LeBlanc], who advised ADT the motorhome was on fire 04:12:50 Dialed Fire Department to Update

[ 15 ] Mr. Richardson’s testimony was that following his exit through the window, he started running to the home of his neighbours, Roger and Floria LeBlanc, but saw a car on the road in front of his home and instead ran and stopped it. At this point, rather than summarize that portion of the facts dealing with the testimony of the driver of the car and Mr. LeBlanc, I will simply reproduce the relevant paragraphs given their importance to the trial judge’s eventual determination of who started the fire: […] Roger LeBlanc confirms the call from ADT at 4:13.

He states he looked out the window and stated the fire was in the motorhome and just started to catch the trim. The LeBlanc residence is about 100’ from the Richardson residence and Roger LeBlanc stated he could see the fire in the motorhome from his home. Roger LeBlanc only saw a fire in the motorhome and was not aware of a fire in the house although he understood this from the call from ADT. He ran across the field, it had been pouring rain and went to the front of the house. He saw the window of the PT Cruiser, it was broken and the vehicle was already torched. Everything was black.

He went in the front door and he called out for Bob and Sharon. No answer and there was no alarm. So he went to the back of the house and found Mr. Richardson who was on all fours. He was soaked and had a lit cigarette. He kept saying “those sons of bitches”. They went around to the front of the house and Bob went inside to look for the dog. Mr. LeBlanc called to him to get out. He could not see any fire in the front of the house. Mr. Richardson went in the door in the family room. After Mr. Richardson came out, Mr. LeBlanc suggested they get the keys to the motorhome to move it. But the keys were in the house.

They then went around to the back and flames were gushing out of the basement window. Roger LeBlanc said shortly thereafter, all of a sudden, Mr. Richardson was not there but a few moments later Mr. Richardson came out of the detached garage and asked him to help move the “T-Bucket”. It was already hooked up to a small vehicle which was running. He wanted to get it out of the detached garage. It was in the third door of the detached garage, nearest Mr. LeBlanc’s house, the furthest from the Richardson house. Usually the vehicles were parked on the paved driveway according to Mr.

LeBlanc but on the day in question they were all out in the field. Mr. LeBlanc also confirmed that he did not see anyone else at the scene until the fire department arrived. He did not see a Sunfire motor vehicle while he and Mr. Richardson were at the residence. Mr. LeBlanc confirms it was raining most of the evening prior to the fire. On cross-examination, Mr. LeBlanc stated he and Mr. Richardson were not close friends. He did not have any problems with the Richardsons but there were a few problems with the foster children. He stated that after the fire, Mr.

Richardson would not speak to him. […] Another witness to the fire was Joseph Carroll who delivers newspapers in the area near the Richardson home. He remembers the fire because he travelled by it on his way to do his paper route. He recalled that on the day in question, he saw a man who waved him down and asked him to call the fire department. Mr. Carroll has been delivering papers for 15 years. He had a route in Ste-Anne-de-Kent for about four years. He starts getting the papers ready at 3:00 a.m. and he starts delivering the papers a few miles past the Richardson residence.

He testified that around 3:30 a.m. a man stopped him and asked him to call 911 but he did not have a phone. He saw a small fire that was either in the motorhome or just in front of it. He went to a number of locations to find a phone but he could not find one so he went back and saw others there so he continued on his route. He thought the process took him approximately 20-25 minutes. The first time Mr. Carroll stopped, he had a conversation with Mr. Richardson. Mr. Richardson could only remember asking him about calling 911. He asked Mr.

Richardson why he did not move the motorhome and he was told he did not have the keys. The keys were locked in the house. Mr. Carroll then asked him why he did not get a water hose and was told it was turned off. Mr. Carroll then asked him why he did not break a window to get the keys but he said he did not want to break a window. So Mr. Carroll went to find a phone so he could call 911. As mentioned, this took him about 20-25 minutes to try unsuccessfully to find a phone. On his way back to the fire, he noted the fire was roughly the same as when he left and that there were others present so he left.

Given the ADT report, Mr. Carroll’s timing conflicts with when ADT called the Richardsons and the LeBlancs. But Mr. Carroll was adamant that he was with Mr. Richardson around 3:30 a.m. and the only fire he saw was the one at the motorhome. [paras. 29-37]

[16] To conclude the background of the case, the appellant’s home, the PT Cruiser and the motorhome were destroyed in the second fire. Of the remaining vehicles listed in paragraph 7, all of which were uninsured, none weredamaged. III. Issue [17] In their Notice of Appeal and subsequent submission, the appellants set out the issue to bedetermined quite succinctly. They allege the trial judge committed palpable and overriding error in finding the onus of proof for arsonwas met by the respondents, in that there was “clearly an absence of motive by the Appellants to deliberately set the fire”. IV.

Law and Analysis A. Standard of Proof in Civil Arson Cases - The Essential Elements Approach [18] The trial judge applied the test set out in Rizzo v. Hanover Insurance Co., [1990] O.J. No. 475(H.C.J.) (QL), aff’d (ON CA), [1993] O.J. No. 1352 (C.A.) (QL), leave to appeal to SCC refused, [1994] 1 S.C.R. x,[1993] S.C.C.A. No. 488 (QL) as follows: […] I now turn to the elements, necessary to be established, in a civil arson case.

In Rizzo, […] the elements which an insurancecompany must prove are set out at paragraph 31: 31 Therefore it seems to me that, for the defendant insurance company to be successful in its defence against the plaintiff’s claim, itmust prove on a balance of probabilities that the only reasonable conclusion to be drawn from the facts as they have been found in thiscase was that the fire was started by the plaintiff or at his request based on the elements that:

a) the fire was of an incendiary origin;

b) that the plaintiff had sufficient motive that the fire be set; and

c) that the plaintiff had the appropriate opportunity to do so. [para. 80] [Emphasis added.] [19] With respect, I do not agree this is the appropriate test under New Brunswick law.

On thispoint, the trial judge was in error, but as I shall explain, the error is not fatal given his ultimate determination of the case. [20] One might describe the approach taken by the trial judge in Rizzo as an essential elements test,and it has been interpreted subsequently to stand for the proposition that all three essential elements must be established on a balance ofprobabilities: the fire was of an incendiary origin; the plaintiff had sufficient motive to set the fire, and; the plaintiff had the opportunityto set the fire.

Note that in the present case, the trial judge employed the phrase “necessary to be established”. [21] There is no question that the Rizzo test has been applied by various courts, including the NewBrunswick Court of Queen’s Bench. For example, in Foss v. General Accident Assurance Co. of Canada, [1999] N.B.J. No. 499 (Q.B.)(QL), Garnett J. stated: The insurer must prove:

1. The fire was incendiary; 2. The insureds had an opportunity to set it; 3. The insureds had sufficient motive to set it or cause someone else to set it. [para. 7] [Emphasis added.] See also Peddle et al. v. General Accident Assurance Co. of Canada (1999), (NB KB), 218 N.B.R. (2d) 306, [1999]N.B.J. No. 454 (Q.B.) (QL), again per Garnett J., wherein she employs the same terminology. B.

Standard of Proof in Civil Arson Cases - The Holistic Approach [22] There is, however, another line of authorities which takes a more holistic approach to thedetermination of arson, and advocates considering the whole of the evidence, including the relevant factors set out in Rizzo, anddetermining whether or not, on a balance of probabilities, the defendant insurer has established the plaintiff set the fire in question. [23] This “holistic approach” has found favour with our Court. In Savoie v. General AccidentAssurance Co. (1999), (NB CA), 210 N.B.R. (2d) 74, [1999] N.B.J.

No. 82 (C.A.) (QL), Turnbull J.A. specificallyconsidered whether it was necessary to establish motive, one of the three essential elements in Rizzo, in order to make a positive findingof arson in the civil context: In my opinion, the trial judge directed himself to all the relevant evidence bearing on the sole issue of the case; did Mr. Savoieintentionally set the fire? In his judgment he reviewed the evidence. He made findings of fact, and sometimes, he drew neitherinferences, conclusions nor made findings of fact from some evidence he referred to in his decision.

It is not always essential that trialjudges make findings of fact on all the evidence led at a trial to obtain a reasoned decision. The trial judge knew that the standard ofproof was not why Mr. Savoie might have set a fire, but rather, on a balance of strong probabilities, did General Accident proveMr. Savoie set the fire. As such, after reciting Mr. Savoie's personal circumstances, including his previous insurance claims, the trialjudge made no adverse inference or conclusion against Mr. Savoie about motive.

The lack of evidence of a motive is not essential to theproof of arson, although it is often found in such cases. [para. 15] [Emphasis added.] [24] I note that the appellants cite Black and LaCourse v. State Farm Fire and Casualty Co. (1995), (NB CA), 170 N.B.R. (2d) 151, [1995] N.B.J. No. 578 (C.A.) (QL) as standing for the proposition that our Court ofAppeal has “required the insurer to prove arson by applying all three elements”. With respect, I disagree that Black or the casesreferenced therein, such as Thériault and Ringuette v.

General Accident Assurance Co. of Canada (1991), (NB KB),120 N.B.R. (2d) 285, [1991] N.B.J. No. 909 (Q.B.) (QL), provide an endorsement of the “essential elements” test as contemplated by thetrial judge in Rizzo. [25] A more recent appellate level decision on point, albeit from another jurisdiction, is that ofLancer Enterprises Ltd. v. Saskatchewan Government Insurance, 2011 SKCA 28, [2011] S.J. No. 158 (QL), in which Lane J.A. stated: […] Rather, the defence of arson will be proved when the totality of the evidence establishes arson on a balance of probabilities. [para. 22]

[26] It should also be noted that the test actually established in Rizzo is not necessarily what weknow today as “the test in Rizzo”. I will explain. The trial judge’s decision in that case sets out what I have previously referred to as the“essential elements” test. On appeal, the trial decision of Farley J. was upheld. Writing for the Ontario Court of Appeal, Catzman J.A.does quote the segment of the decision under appeal which set out the test used by the trial judge.

However, he later went on to state asfollows: […] I see no reason why, in cases (like the present case) where evidence of opportunity is accompanied by other inculpatory evidence,the assessment of the evidence of opportunity should be complicated by the employment of qualifying adjectives.

In such cases, theproper inquiry should be whether, on all of the evidence inculpatory of the insured, including motive and opportunity, the insurer hasproven the defence of arson according to the standard of proof appropriate to the establishment of that defence in a civil case. [para. 18][Emphasis added] This would seem to suggest that the Court of Appeal in Ontario itself took a more holistic, and less restrictive, approach to the requiredstandard of proof. [27] That same court affirmed this approach some years later in Bezdziecki v. Allstate Insurance Co.of Canada, [1998] O.J.

No. 4853 (C.A.) (QL): In our view, the trial judge’s reasons do not reflect any error on the question of standard of proof. The trial judge quoted from thedecision of this court in Rizzo v.

Hanover Insurance Co. (1993), (ON CA), 14 O.R. (3d) 98 at 105, where the courtstates that “[i]n such cases, the proper inquiry should be whether, on all of the evidence inculpatory of the accused, including motive andopportunity, the insurer has proven the defence of arson […]”. [para. 4] [28] In conclusion, the standard of proof in civil arson cases does not require that the insurerestablish each of the three elements, namely incendiary origin, opportunity, and motive on a balance of probabilities.

Instead, the propertest is to assess all of the evidence, and then make the determination as to whether it has been established on a balance of probabilitiesthat the insured set the fire or caused the fire to be set. C. The Decision at Trial [29] In this appeal, the critical passages from the trial judge’s decision are the following: There is evidence which, on a balance of probabilities, I believe establishes that Mr. Richardson set the fires.

I will list these in pointform in no particular order and some of it will be redundant: 1) Immediately before the May 27th fire, the Richardsons increased their insurance coverage. 2) Only the insured items were damaged in the May 29th fires, while all the uninsured items were not. 3) Mrs. Richardson left her insured PT Cruiser at the residence and took another uninsured vehicle to the Goguens. The PT Cruiser washer vehicle and the one she used most of the time. 4) Mrs.

Richardson and her son went to the Goguen residence and left her husband home alone. 5) All the uninsured vehicles and toys were moved to locations on the property away from the home.

6) Mr. Richardson’s comments to Joseph Carroll that the keys to the motorhome were locked in the residence so he could not move the motorhome, that the hose was turned off and he did not want to break a window. All of which makes little sense given what was happening. It also does not square with the evidence that Mr. Richardson was using the hose to put out the Oldsmobile fire on May 27 th . Nor does it square with the testimony of Roger LeBlanc that Mr. Richardson went back into the house and he called out to him to get out of the house.

Consequently, it is doubtful the keys were locked in the house. 7) The fact that Mr. Carroll spoke with Mr. Richardson around 3:30 in the morning and the only fire he could see was a small fire in the motorhome. The ADT alarm was approximately 30-35 minutes after Mr. Richardson hailed down Mr. Carroll. In addition, Mr. LeBlanc found Mr. Richardson outside soaking wet, smoking a cigarette, which would suggest Mr. Richardson was out earlier. 8) As mentioned above, Mr.

Richardson, after the previous fire and having fears of reprisal, hears voices and sees lights around his property, in a rural area with his house set back from the highway and he does not get up to investigate, nor does he call the police. He goes back to sleep until the ADT alarm which causes him to immediately jump out his bedroom window without first seeing what caused the alarm. 9) Mr. Richardson says that after he jumped out the bedroom window, the first time following the ADT alarm, he started running to Mr. LeBlanc’s residence when he saw Mr. Carroll’s vehicle and he ran to it.

The time lines simply do not work. I accept that Mr. Carroll may have been a little off in time but I believe that contact was well before the ADT alarm. Also, why would Mr. Richardson not continue to Mr. LeBlanc’s house if Mr. Carroll did not have a cell phone? 10) Mr. LeBlanc says that when he first saw Mr. Richardson, he was totally soaked from the rain and he was smoking a cigarette. The fire-smoke detector alarmed at 4:07:35 and Mr. LeBlanc says they were called at 04:12:40 and he left immediately for the Richardson residence. It seems highly improbable that Mr.

Richardson would be that wet and smoking a cigarette after jumping out his bedroom five minutes after the ADT alarm. 11) Mr. Richardson also stated that he does not know how he got back into the house but he was searching for his wife and child. He believes he went in the door by the family room and then went to the master bedroom. Again, he jumps out the bedroom window. Why would he not return the way he came in? It does not appear this door was locked. 12) The failure to call Brittany Richardson as a witness. The evidence before the Court does not establish that she was unable to testify.

While I am not taking an adverse inference, the other evidence from the Cormier family suggests that there were not the serious problems as alleged by the Richardsons which could have resulted in reprisals taken by persons unknown. I, therefore, discount this theory and give it little, if any, weight. 13) The expert evidence is that the two fires did not travel, therefore, there had to be at least two separately set fires and the evidence would suggest they were set approximately a half hour apart. 14) Mrs.

Richardson left immediately following the fire for Newfoundland, which seems strange, given what had just occurred. I have reviewed the evidence and scrutinized the relevant evidence with care. I have considered the three elements necessary to establish civil arson and the evidence in relation to these elements. Finally, I have considered the other relevant evidence including the above which, in my view, makes Mr. Richardson’s evidence and his version of events unbelievable. I am satisfied on a balance of probabilities that Robert Richardson set the fires.

The consequence of which, he is not entitled to recovery of his fire loss under the appropriate policies of insurance under

section 2 of the Insurance Act . In addition, I am satisfied that Sharon Richardson’s conduct shows that she was aware and acquiesced in what Robert Richardson did. I must comment on the issue of motive which the authorities suggest is an essential element in civil arson. In this particular case, motive can be alluded to from the financial facts and the quick departure to Newfoundland by Sharon Richardson. However, motive is different things to different people, it is ephemeral. Therefore, it is difficult to weigh it in determining if it has been proven on a balance of probabilities.

I am satisfied there is motive but as I have found as a fact that Mr. Richardson has set the fires, for the reasons set out above, I am not

sure that the issue of motive has to be predominant. There is strong evidence that he set the fires and I am satisfied he did, consequently, his motives are less important. [paras. 99-102] [ 30 ] The determination by the trial judge that Mr. Richardson set the fires is a finding of fact, and as such, there exists a high threshold for appellate intervention. In order to interfere with a finding of fact, it must be established that said finding was based on a palpable and overriding error. No such error exists here. There was a sufficient evidentiary foundation for the trial judge to make the determination he did.

I chose to reproduce here the whole of paragraph 99 to make clear that the trial judge had ample evidence to reach the conclusion Mr. Richardson set the fires. That said, I acknowledge that there is an error in paragraph 99(1) of the decision as set out above, in that the Richardsons increased their insurance coverage immediately before the May 29 th fires, and not the May 27 th fire, but in my opinion this error is merely a “slip”. It is certainly not overriding, and is of no real consequence.

I come to this conclusion given that the trial judge provided a detailed review of the facts in his decision, and clearly had a grasp of the timeline of events. D. The Test Cited and the Test Applied [ 31 ] As noted above, the trial judge cited the essential elements test in Rizzo . On two of the three elements, there is no room for debate. The fire was of an incendiary origin, and Mr. Richardson was at home and did have opportunity. The only real question remaining in the context of this test is motive. [ 32 ] Although the trial judge did find motive, the finding was tenuous at best.

In my opinion, the evidence of motive is so wanting that it fails to meet the balance of probabilities standard. The financial situation of the appellants was not so serious as to be a motive for arson. In fact, I suspect that the financial situation of the Richardsons is not unlike that of many New Brunswick households. The fact the property was listed for sale and had yet to generate any offers could be compelling evidence of motive, but not when one considers that the property had been on the market a mere five weeks. Finally, I would attach little if any weight to the fact that Ms.

Richardson left this province for Newfoundland shortly after the fire. A person who has lost his or her home to fire, whatever the circumstances, should not be faulted for choosing to seek out the comfort and support of their extended family in its aftermath, especially if one has a child to care for. [ 33 ] Even though the facts of this case do not satisfy the essential elements test because of the motive criteria, I have already determined this is not the appropriate test. It would appear that the trial judge cited one test, but in effect applied the holistic test when reaching his decision.

He looked at all of the evidence, and determined on a balance of probabilities that Mr. Richardson had set the fires. As the trial judge stated at para. 102, “I am not sure that the issue of motive has to be predominant”. I will go further. If, on the whole of the evidence, a court is satisfied on a balance of probabilities that the insured set the fire, there is no need to establish motive. On the facts of the present case, I cannot fathom why the appellants would have set fire to their own property, but that does not matter. What does matter is that the trial judge made a finding of fact that Mr.

Richardson set the fires, based in part on his finding that Mr. Richardson’s evidence was lacking in credibility. I have already determined this finding was supported by the record, and no appellate intervention is warranted. VI. Disposition [ 34 ] I would dismiss the appeal, with costs on appeal of $1,500 payable to the respondents. ______________________________ BRADLEY V. GREEN, J.A. WE CONCUR:

_______________________________ B. RICHARD BELL, J.A. _______________________________ KATHLEEN A. QUIGG, J.A.