2013 QCCQ 5822, 2013 QCCQ 5822

Menzies c. Aviva Canada inc. 2013 QCCQ 5822 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-014952-123 DATE: May 23, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ WILLIAM MENZIES and MARTHA CHIRICO DALFINO Plaintiffs v. AVIVA CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] William Menzies and Martha Dalfino claim $ 6655 from Aviva Canada Inc. (Aviva) further to a robbery that occurred in their home on December 2, 2011. [ 2 ] At the beginning of the hearing, the Court relieved Aviva of the default to contest within the delays that was inscribed in the file, as it was demonstrated that the contestation was in fact transmitted on time. THE FACTS: [ 3 ] On December 2, 2011, when they come back home around 17:00, Mr.

Menzies and Mrs. Dalfino realize that a robbery has occurred in their house, especially in their bedroom, in Mrs. Dalfino's walk-in. A large amount of money was stolen ($ 15 640), as well as family jewellery, that they evaluate at $ 32 850. The money and jewellery were placed in a safe in the walk-in. Two cameras and several DVDs were also stolen. [ 4 ] As the insurance policy includes special limits of insurance, particularly for money ($ 500) and jewellery ($ 5000), Mr. Menzies and Mrs.

Dalfino do not claim the full value of the stolen goods, but the insurance policy limit of $ 5500. [ 5 ] In the list of stolen items given to the police, they evaluate both cameras (one blue and one silver) at $ 400 each. [1] They also claim $ 455 for the DVDs. [2] [ 6 ] The police report indicates that Mr. Menzies called 911 at 17:10. His declaration to the police was signed at 20:10. [ 7 ] According to the police report, there was no break-in signs on the property, nor on the safe.

The police officer who testified at trial explained that the thief broke in by the rear door in the sunroom. [ 8 ] Aviva is immediately informed, and requests by e-mail on December 7, 2011, a detailed list of stolen goods (price paid, year and place of purchase, model), as well as original invoices or proof of possession. Aviva also asks Mr. Menzies and Mrs. Dalfino to sign a consent form allowing them to obtain various information. [ 9 ] On December 16 th , 2011, the list of stolen goods in given to the police. The consent form is signed on December 20, but is sent only on January 20, 2012.

In the meantime, in the beginning of January, Mrs. Dalfino was bitten by a dog, and suffered wounds that needed extensive medical care. [ 10 ] On December 22 nd , 2011, Mrs. Dalfino speaks with Bijouterie Michel St-Pierre Inc., and gives them a detailed description of the stolen jewellery, which allows Mr. St-Pierre to evaluate the stolen jewellery at the amount of $ 20 360 plus taxes. This jewellery was

formerly her mother's, and was bought mostly in Italy. [ 11 ] On February 24, 2012, the file is transferred to Mark Bedford, regional investigator at the claims investigation unit, due to the special circumstances surrounding the loss. [ 12 ] The money and the jewellery were located in a safe in Mrs. Dalfino's walk-in. Both a key and a combination were needed to open it. As Mrs. Dalfino had earlier misplaced the key, she could not open the safe, and had required, a few weeks before the theft, another copy of the key. Though Mr.

Menzies paid for an accelerated service, at the end of November 2011, he had not received the key, which was by mistake sent by regular mail. The safe company offered to send another key by express mail, which arrived on the day of the robbery. Mrs. Dalfino found the envelope on the lawn when she arrived home on December 2, 2011. [ 13 ] It seems that the key was placed, with the combination for the safe written on a piece of paper, in one of Mrs. Dalfino's numerous purses.

It seems that when he turned the walk-in upside down, the thief found the key and the combination, and then could open the safe and take the money and the jewellery. [ 14 ] A statutory examination was held at Aviva's offices on March 21, 2012, for both Mr. Menzies and Mrs. Dalfino, separately, which lasted a few hours. [ 15 ] Further to that examination, Mr. Menzies sent an e-mail on April 3, 2012, informing Mr. Bedford that he was ready to transmit the cameras accessories and pictures taken with both cameras. [ 16 ] On April 11, 2012, Mr. Menzies faxed to Mr.

Bedford his cell phone statement for December 2, 2011. [ 17 ] On April 18, 2012, Mr. Bedford requires that a second consent be signed to obtain a copy of the police report. It appears that the report was not asked for when the consent was first received; the S.Q. refused to send Aviva a copy, as the consent was signed more than three months earlier. [ 18 ] On April 20 th 2012, Mr. Bedford sends an e-mail to Mr. Menzies reminding him that he does not yet has the proof of the existence of the $ 15 000 that was stolen, and that the file shows no proof of possession for the jewellery. He also reminds Mr.

Menzies that he has not received the work order for the new key for the safe, and informs him that he might rely on

Section 2471 of the Quebec Civil Code to deny the claim. [ 19 ] On the same day, Mr. Menzies answers that he sent his bank statements months ago to another Aviva's representative. He also adds that he has no proof of possession for the jewellery, as they were given to his wife by her mother or other members of the family. He confirms that he has not found any pictures of the jewellery.

He transmits again by fax the banking statements showing withdrawals of $ 15 000 and $ 5000 on March 11 and 24 th , 2011. [ 20 ] On April 26, 2012, he faxes his credit card statement showing that on October 24, 2011, he ordered a new key at Sentry. He also sends the first page of an instruction manual, for the Lumix cameras. [ 21 ] A series of e-mail between Mr. Menzies and Mr. Bedford is exchanged on April 26 th and 27 th . Mr. Bedford asks Mr.

Menzies to communicate with Sentry because he wants to have a copy of a work order for the key, which does not seem to exist as the order was placed by phone and paid with a credit card. It appears from Mr. Menzies e-mail and from a note in Mr. Bedford's file that Sentry does not give any information to third parties, even with a consent of their client. Mr. Bedford insists to have at least a confirmation of the date when the key was shipped, as he does not understand why it was paid for on October 24, and received only on December 2. [ 22 ] On May 18, 2012, Aviva informs Mr. Menzies and Mrs.

Dalfino by letter that they deny their claim on the basis of non- collaboration pursuant to

Section 2471 of the Quebec Civil Code . [3] ANALYSIS AND DECISION: [ 23 ]

Section 2471 of the Quebec Civil Code reads as follows: 2471. At the request of the insurer, the insured shall inform the insurer as soon as possible of all the circumstances surrounding the loss, including its probable cause, the nature and extent of the damage, the location of the insured property, the rights of third persons, and any concurrent insurance; he shall also furnish him with vouchers and attest under oath to the truth of the information. Where, for a serious reason, the insured is unable to fulfil such obligation, he is entitled to a reasonable time in which to do so. If the insured fails to fulfil his obligation, any interested person may do so on his behalf. [ 24 ]

Section 3.2 of the insurance policy reproduces

Section 2471; another paragraph is added to

Section 3.2 which reads: "In addition, the insured shall forthwith send to the insurer a copy of any notice, letter, subpoena, or writ, or document received in connection with the claim." [ 25 ] The Court of Appeal studied

Section 2471 Q.C.C. (or its former version,

Section 2573 C.c.L.C.) on many occasions. In Girard , the Court of Queen Bench established that one cannot reproach to a good faith insured to have imperfectly fulfilled the formalities for his proof of lost if he did it in a substantial way. [4] These principles were repeated in the more recent case of Di Capua [5] . This case also

established that the insurer has the burden to prove in which way the cooperation of his insured was necessary, that the insured was asked to cooperate and refused to do so, and that the insurer had suffered a prejudice. [6] [ 26 ] In Armtec , the Court of Appeal said the purpose of

Section 2471 of the Quebec Civil Code is to allow the insurer to verify if the loss is covered under the policy and to examine the extent of the damages. Usually, an insured who delays the transmission of information and documents to his insurer will not be deprived of his right to be indemnified, but will be penalized by the delay incurred before payment. [7] [ 27 ] At the hearing, the Court confirmed with Aviva that they were not relying on

Section 2472 of the Quebec Civil Code , and denying the claim for deceitful representation by the insured. Aviva's contestation is based only on

Section 2471 of the Quebec Civil Code . [ 28 ] Applying the law to the facts of this case, the Court has first to ask whether the insured refused to collaborate with Aviva. Mr. Menzies and Mrs. Dalfino gave the list of stolen objects to the police; they provided Aviva with their bank statements, cellular phone bill, and credit card information. Both of them agreed to a statutory examination and Mrs. Dalfino had a conversation with the insured's jeweller to establish the value of the claim. [ 29 ] The fact that it was difficult for Mrs.

Dalfino to find pictures of the jewellery cannot be considered as a lack of collaboration. It is understandable that family jewellery doesn't come with a receipt. Mrs. Dalfino explained in Court that most pictures of the jewellery were from a previous marriage, and that it was complicated to access them. She filed some pictures she found in the meantime as exhibit P-11 before the hearing date. [ 30 ] The Court recognizes that the circumstances of the theft are quite unusual, but considers that those circumstances were well- explained by Mr. Menzies and Mrs. Dalfino. [ 31 ] Mr.

Bedford indicated to the Court that several contradictions were noted in the file: timetable of December 2 nd ; location of the DVDs in the house; claim for two Lumix cameras, as the invoices sent show that there was only one Lumix and one Panasonic (of less value); reasons of the withdrawal of $ 15 000 from the bank account to put it in the safe (tax-related questions or Christmas gifts). [ 32 ] As for the other elements noted in Mr. Bedford's investigation report, such as the financial situation of Mr.

Menzies, the fact that his house was further put on sale, etc., they could have been important if the claim was denied under

section 2472 of the Quebec Civil Code , or if Aviva had argued that Mr. Menzies participated in the theft, which they do not pretend. [ 33 ] The other question the Court has to ask, regarding

Section 2471 of the Quebec Civil Code , is if the insured acted in bad faith. [ 34 ] The Court could not find in Mr. Menzies and Mrs. Dalfino's testimonies or e-mails the slightest sign of bad faith. [ 35 ] It was not shown either that Aviva has suffered a prejudice from the proof of loss submitted by the insured. [ 36 ] Finally, have Mr. Menzies and Mrs. Dalfino proven the value of their claim? They have succeeded in proving that they had money and jewellery in their safe, and as the policy limits the amount that can be claimed for both categories to $ 5500, such amount will be granted.

As for the cameras, the investigation report show that invoices transmitted to Aviva establish that the Lumix camera was paid $ 785.23 in October 2008, and the other camera was paid $ 92.26 in 2009.

As their claim for both cameras is $ 800, this amount is also granted as well as the amount claimed for the DVDs. [ 37 ] The $ 850 deductible has to be withdrawn form the claim, and the action is in consequence granted for $ 5805. [8] FOR THE ABOVEMENTIONED REASONS, THE COURT: GRANTS in part the action; CONDEMNS Defendant Aviva Canada Inc. to pay to Plaintiffs, William Menzies and Martha Chirico Dalfino solidarily, the amount of $ 5805 plus interest at the legal rate and the additional indemnity provided for by

Section 1619 Q.C.C., since April 30 th 2012, date of the Letter of Demand; THE WHOLE with costs in the amount of $ 163. __________________________________ CÉLINE GERVAIS, J.Q.C.