SSQ, société d’assurances générales inc. v. Alain Crytes, (C.Q., Maniwaki, No. 565-22-000081-089), 2012 march, 12, Fournier J.

In the context of an action seeking sanctions for misrepresentation, the Court of Quebec has recognized that statements made by the insured during a polygraph test can be used as evidence. On March 21, 2012, Judge Fournier ruled, based on the insured’s contradictory statements while taking a polygraph test, that hoping his truck would be stolen, saying so publicly for all to hear, holding talks about a potential contract in that regard, never locking his truck, and leaving it unsupervised in a public place for days at a time constituted a “[translation] dishonest conduct towards the insurer, comparable to an intentional fault within the meaning of Article 2464 C.C.Q., thus entailing the loss of the insured’s right to any indemnity for the injury.”

In this case, there was no direct proof that the insured had participated in the theft and burning of his truck. The plaintiff therefore adduced presumptions of fact which it characterized as serious, specific and concordant, and which were based on the circumstances surrounding the theft, the numerous mechanical and electrical problems the truck was afflicted with, the mileage on the truck at the time it was stolen, the lapsing of the “replacement value” coverage in the month before the truck disappeared, the insured’s numerous statements that he wished and hoped that his truck would be stolen, and the contradictory statements he made during his polygraph test.

The judge stipulated that the insured’s oral statements during the polygraph test could be admitted into evidence as testimony, as their reliability was sufficiently guaranteed. Moreover, the judge believed that those same statements could be used to undermine the insured’s credibility if they were incompatible with his testimony at trial, without the Court’s authorization.

Accordingly, the judge found that the insured’s credibility was seriously tainted by all the contradictions and inconsistencies that were noted and said he was not convinced that the insured had provided sincere and reliable testimony. Under the circumstances, the judge granted the plaintiff’s action, and even condemned the insured to reimburse the plaintiff for the costs of the polygraph expert.