Mutual Life Assurance Co. of Canada v. Aubin, [1979] 2 SCR 298

Supreme Court of Canada

Mutual Life Assurance Co. of Canada v. Aubin, [1979] 2 S.C.R. 298

Date: 1979-05-31

The Mutual Life Assurance Company of Canada (Defendant) Appellant;

and

Dame Thérèse Savary Aubin (Plaintiff) Respondent.

1978: December 20; 1979: May 31.

Present: Laskin C.J. and Pigeon, Dickson, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Insurance—Life insurance—Compensation for accidental death—Exclusion clauses.

Evidence—Civil proceeding—Allegation that a criminal offence was committed—Rule of the balance of probabilities—No error in weighing the evidence.

Respondent claimed from appellant, the insurer of her deceased husband (Aubin), additional compensation provided for in the insurance policy in the event of accidental death. Relying on the exclusion clauses contained in the policy, the insurer refused to pay this compensation, alleging that the insured died while driving his car with a higher alcohol content in his blood than that allowed by the Criminal Code. The Superior Court and a majority of the Court of Appeal allowed plaintiff-respondent’s action: hence the appeal to this Court.

Held: The appeal should be dismissed.

It is established that appellant had the burden of proving the facts giving rise to application of the exception clause contained in the policy. There is also no doubt that such evidence must be presented in accordance with the rules applicable in civil rather than criminal proceedings. It is not necessary for commission of the criminal offence relied on by the insurer to be proven “beyond a reasonable doubt”; it need only be established by “a balance of probabilities”.

In the case at bar a majority of the Court of Appeal held that appellant had not established on a balance of probabilities that Aubin committed a criminal offence. This view of the evidence does not appear to be in error; it is fully justified by the evidence as a whole. The most important piece of evidence relied on by appellant is a blood test made following the death, and the evidentiary value of this test is far from certain.

[Page 299]

Rioux-Therrien v. L’Alliance et l’Assurance-vie Desjardins, [1976] 1 S.C.R. vi, aff’g [1974] C.A. 271, followed; London & Lancashire Guarantee & Accident Co. of Canada v. Canadian Marconi Co., [1963] S.C.R. 106, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court. Appeal dismissed.

Jacques Delisle and Charles Stein, Q.C., for the appellant.

Bernard Paré, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—Joseph-Alphonse Aubin died as the result of an automobile accident which occurred on December 19, 1969, when his car collided with the parapet of a bridge over the Beauport river at Giffard, near Quebec City. Respondent, Aubin’s widow, is the beneficiary of a life insurance policy taken out by the deceased with appellant insurance company, providing for the payment of additional compensation of $10,000 in the event of accidental death.

The insurance company refused to pay this additional compensation, and relied on the exclusion clauses contained in the insurance contract; it pleaded as follows:

[TRANSLATION] 2. In the part of this contract providing coverage in the event of accidental death, it states that no compensation will be payable for a loss attributable directly or indirectly, in whole or in part, to any breach of the law, criminal offence or illness;

3. Plaintiff’s husband died in an automobile accident which occurred in the following circumstances: while driving at the wheel of his car with an alcohol content of 1.6 pmp, plaintiff’s husband hit the parapet of a bridge;

The company referred to the following clause in the contract:

[TRANSLATION] Restrictions—

No compensation shall be payable for any loss attributable directly or indirectly, in whole or in part, to one of the following causes:

…

[Page 300]

3. Acts of violence, criminal offences or attempts thereat …

…

7. Any physical or mental incapacity, illness or disease.

The Superior Court agreed with plaintiff-respondent and allowed her action with interest from the date of service and costs. The Court of Appeal (Bélanger J.A. dissenting) dismissed the appeal. Leave to appeal to this Court was given on October 27, 1975.

According to the testimony, Aubin, a teacher employed by the Quebec City Catholic School Commission, was not a man given to drinking. He took an occasional drink, such as one or two “cocktails” at parties or receptions. At the time of the accident, he had been on sick leave for several weeks; according to his daughter and to the respondent, he was very ill, suffering, and in pain as the result of “a sprained back”. He had told certain colleagues that he was taking medicine for the pain.

At about 2:15 p.m. on the day of the accident, Aubin went to a reception at which teachers and some of the students were exchanging Christmas greetings before the holidays. According to the trial judge, Aubin arrived at the reception at about 2:15 p.m. and left at about 4 p.m. He had one, perhaps two drinks. His behaviour was perfectly normal. His walking and speaking were unimpaired, although he seemed to be in pain. To all his colleagues he appeared very tired, even ill. One of the teachers, Brideau, offered to take him home if he wanted, because he seemed so “depressed”. Aubin told his colleagues that he did not want to have more than one or two drinks, because he was taking medicine.

Mrs. Roy, an employee with the Canadian Imperial Bank of Commerce, was the last person to see Aubin before the accident. At about 4:30 p.m., she waited on him at her wicket and talked to him for about 10 minutes. She noted that he spoke normally, “just as usual”, but appeared to be very ill. He sat down on a chair while Mrs. Roy completed the calculations for his bank book. He

[Page 301]

said that he was hoping that he would be better after the holiday season.

On the day of the accident the weather was cloudy, the road wet and slippery and there was “wet snow”.

Two hours elapsed between the departure of Aubin from the bank and the accident; the evidence does not reveal what Aubin did during this period. In any case, Pierre Lauzière testified that he followed Aubin in a car for a distance of 1½ to 2½ miles. He said that Aubin was driving cautiously, at about 25 miles an hour. His car was not zigzagging but it was “wavering” between the “edge” of the sidewalk and the white line; his lights were out although the lights of other cars were on; cars coming in the opposite direction were flashing their lights as they approached Aubin’s car. According to the testimony of Lauzière, Aubin “wavered” less when he got to the Boulevard Ste-Anne, but his speed increased immediately before the accident. Aubin made no move to brake before colliding with the viaduct parapet. He was taken to the hospital and died the same evening.

On the day following the accident an autopsy revealed an alcohol content of 160 milligrams per 100 millilitres of blood, or double the amount permitted by the Criminal Code.

Appellant maintained that Aubin’s death was directly or indirectly attributable to the fact that he was driving his car while he had a higher proportion of alcohol in his blood than that prescribed by s. 224 Cr. C., now s. 236.

It is established that appellant had the burden of proving the facts giving rise to application of the exception clause contained in the policy. There is also no doubt that such evidence must be presented in accordance with the rules applicable in civil rather than criminal proceedings. It is not necessary for commission of the criminal offence relied on by the insurer to be proven “beyond a reasonable doubt”; it need only be established by “a balance of probabilities”.

[Page 302]

This Court recently confirmed the decision of the Quebec Court of Appeal in Rioux-Therrien v. L’Alliance et l’Assurance-vie Desjardins[2], indicating its agreement with the reasons of Owen J., who examined the whole question. I adopt his findings, which he stated as follows at p. 273:

…. the law laid down by the Supreme Court of Canada is that when a criminal offence is alleged in a civil action the weight of evidence required to prove that allegation is that required by the civil law rules, namely a preponderance of evidence.

In the case at bar appellant alleged, first, that the trial judge used the wrong standard for weighing the evidence when he said, after reviewing the case law:

[TRANSLATION] On the basis of circumstantial evidence, the Court cannot assume that a criminal offence was committed, when such a conclusion cannot necessarily be inferred to the exclusion of any other from the facts proven.

The decisions referred to by the trial judge do not support the aforementioned conclusion which he purports to draw from them; thus, he cites one of the extracts from the reasons of Ritchie J. in London & Lancashire Guarantee & Accident Co. of Canada v. Canadian Marconi Co.[3], including the one in which he deals with the rule of evidence “by a preponderance of evidence”.

It is therefore not certain that the aforementioned passage from the reasons of the trial judge must necessarily by given the absolute meaning attributed to it by appellant; reading the judgment as a whole does not in fact suggest such an error.

However, it does not seem necessary for me to resolve the question of the interpretation to be given to the reasons in the Superior Court judgment. There is not doubt that the Court of Appeal, which affirmed the judgment of the Superior Court, did not itself make any error in choosing the rule of evidence to be applied. Even in his dissenting opinion, Bélanger J.A. affirmed the applicability of the rules and evidence in such a case, namely “by a balance of probabilities”. Owen J.A. left not doubt in this regard:

[Page 303]

After considering all the evidence relating to the insurance company’s contention that the accident was due to consumption of alcohol on the part of the assured which constituted a criminal offence, I am of the opinion that the insurance company failed to discharge the burden of proving, on the balance of probabilities, such consumption of alcohol on the part of the victim. The insurance company failed to bring the case within the terms of paragraph (3) of the restrictions set out above.

The question before the Court is therefore whether appellant established on a balance of probabilities that Aubin committed the criminal offence mentioned above. The Court of Appeal was divided on the point; the majority held that proof to this effect had not been made, while Bélanger J.A., dissenting, was of the contrary opinion.

Appellant has not persuaded me that the view of the evidence taken by the majority in the Court of Appeal is in error.

The most important piece of evidence relied on by appellant is the blood test made on the body of the insured, on the day following the death, by an anatomopathologist, Dr. Jean-Paul Bachans; this test allegedly showed a high quantity of alcohol in the insured’s blood at the time. However, the evidentiary value of this test is far from certain because the sample was not taken in circumstances which precluded all possibility of contamination. In the accident Aubin suffered very serious injuries which prevented the sample being taken from his heart; it was taken either from his chest or his abdomen. Dr. Bachans stated that in such circumstances there is always a risk of contamination; he also admitted that in cases of severe injuries such as that which affected Aubin, it is possible for fissures of the stomach to go unnoticed. The following extracts from the testimony of Dr. Bachans indicate the highly doubtful evidentiary value of the blood test on which appellant relies almost exclusively:

[TRANSLATION] Q. Can you explain, Mr. …Bachans, please.

A. Well, the stomach is, if it contains, if it contains alcohol, is … when someone has an injury of that significance, with a severed liver, the … there can

[Page 304]

be contamination of the gastric content in the abdominal cavity. (My emphasis.)

and

[TRANSLATION] Q. Admitting—you said that “it was possible”—admitting that there were slight fissures in the stomach, and that the blood sample was not taken in the chest but in the abdomen, was there not a risk of contamination in the chest at that time?

A. Yes, it could be contaminated.

Q. The test could have been contaminated at that time?

A. Yes.

and the following:

[TRANSLATION] … the content of the stomach freely distributed a few c.c. of alcohol in the abdominal cavity … in the present case I have the impression that only a few c.c. of alcohol could give results double or even twice the normal…

and finally:

[TRANSLATION] Q. Am I to understand, then, from what you have said, that in the present case the various tests to indicate the possibility of contamination were not made, so far as you are aware; is that correct?

A. That is correct, that is correct.

The examination was not taken to the point where we could have had any idea whether there was contamination. (My emphasis.)

In my opinion, the evidence as a whole fully justifies the view taken of it by the majority of the Court of Appeal.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Létourneau, Stein, Marseille, Delisle & Larue, Quebec.

Solicitors for the respondent: Martin, Dumas, Paré & Alain, Quebec.