Dalton Cartage Co. v. Continental Insurance Co. and St. Paul Fire and Marine Insurance Co., (1982) 40 N.R. 135 (SCC)

• Judge: Laskin, C.J.C., Dickson, Estey, McIntyre and Chouinard, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 26, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 40 N.R. 135 (SCC);AZ-82111010;1982 CanLII 13 (SCC);25 CPR (2d) 72;40 NR 135;[1982] 1 SCR 164;[1982] SCJ No 116 (QL);131 DLR (3d) 559;25 CPC 72

Dalton Cartage Co. v. Continental Ins. (1982), 40 N.R. 135 (SCC)

MLB headnote and full text

Dalton Cartage Company Limited v. The Continental Insurance Company and St. Paul Fire and Marine Insurance Company

Indexed As: Dalton Cartage Co. v. Continental Insurance Co. and St. Paul Fire and Marine Insurance Co.

Supreme Court of Canada

Laskin, C.J.C., Dickson, Estey, McIntyre and Chouinard, JJ.

January 26, 1982.

Summary:

The plaintiff carrier brought an action against two of its insurers for recovery under two policies after a truck cargo was lost. The carrier's driver was charged with theft, but was acquitted. One of the policies insured all risks, excluding "loss by infidelity" by the carrier's employees and the other insured against loss from dishonest acts by employees. The trial judge held that the carrier was entitled to recovery under the policy excluding risk from infidelity, because the insurer failed to prove the driver's infidelity. Similarly, the carrier's recovery under the other policy was denied, because the carrier failed to prove loss from the insured risk of dishonesty. The Ontario Court of Appeal dismissed the appeal.

On appeal the Supreme Court of Canada dismissed the appeal.

Evidence - Topic 104

Standard or degree of proof - Proof of crime in civil case - The Supreme Court of Canada held that the proof of a crime in a civil case was on a balance of the probabilities - See paragraphs 8 to 12.

Insurance - Topic 6526

Multi-peril property insurance - Risks or perils - Infidelity - Meaning of - The Supreme Court of Canada held that negligence by an employee did not constitute infidelity - See paragraph 7.

Insurance - Topic 6686

Multi-peril property insurance - Evidence - Defences - Exclusions - Burden of proof - The Supreme Court of Canada held that the burden was on the insurer to prove loss from an excluded risk - See paragraph 7.

Cases Noticed:

Hurst v. Evans, [1917] K.B. 352, not folld. [para. 7].

Citizens Insurance Company v. Grand Trunk Railway Co. of Canada (1880), 25 L.C. Jur. 163, not folld. [para. 7].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, appld. [para. 9].

Bater v. Bater, [1950] 2 All E.R. 458, appld. [para. 9].

Smith v. Smith and Smedman, [1952] 2 S.C.R. 312, appld. [para. 9].

Counsel:

R.J. Rolls, Q.C. and Gloria Adair, for the appellant;

William P. Somers, Q.C., for the respondent Dalton Cartage Company Limited;

E.R. Murray, Q.C., for the respondent St. Paul Fire and Marine Insurance Company.

This case was heard on December 15, 1981, at Ottawa, Ontario, before LASKIN, C.J.C, DICKSON, ESTEY, McINTYRE and CHOUINARD, JJ., of the Supreme Court of Canada.

On January 26, 1982, LASKIN, C.J.C., delivered the following judgment for the Supreme Court of Canada: