ABSTRACT
The burden of proving the breach of such a duty, whether it is a non-disclosure, a misrepresentation or a fraudulent claim, lies on the insurer. The insurer may be assisted in discharging the burden of proving inducement, by the nature of the breach and factual inferences drawn by the court or tribunal, and where the assured or the broker has been proved to be guilty of fraudulent conduct calculated to influence the insurer. The standard of proof applicable in cases of the breach of the duty of the utmost good faith, or any defence thereto is the satisfaction of the court or tribunal that the case has been established on the balance of probabilities. Each of the parties to the insurance contract or the negotiations leading to the contract should give evidence at the trial of any action or at the arbitration hearing.
