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In
this article, I would like to reinforce the value of the I.A.A.I. to the
insurance community. I will also demonstrate the current state of affairs
in Canada with respect to the crime of "arson". Finally, I will provide
you with information on what I consider one of the best training schools
in the world that should be fully embraced by the fire investigation community.
"Arson"-
Civil and Criminal Law in Canada
In
Canada, criminal law is federal jurisdiction and is codified in the Criminal
Code of Canada. It is one federal code that applies to all Provinces and
Territories. This differs from the U.S. where each state has jurisdiction
for its criminal laws.
In
1982, the Canadian Parliament passed the Constitution Act. Within this
Act is the Canadian "Charter of Rights and Freedoms." The genesis and
evolvement of this legislation mirrors many of the fundamentals provided
in the U.S. "Bill of Rights".
Unlike
most U.S. states, we do not have 'Arson Immunity Laws' in Canada.
The I.A.A.I. (Ontario Chapter) has tried to pursue these with Federal
and Provincial legislators. We have also tried to encourage several insurance
industry organizations to join the cause but repeated efforts have not
produced any meaningful results. The fight is not over. There is plenty
of frustration from the front line people who look south of the border
and have difficulty understanding why the "Immunity Laws" make sense in
the U.S. but not in Canada.
The
'civil law' is controlled generally by legislation under the jurisdiction
of the individual Provinces. The "Insurance Act" of each Province, and
"Insurance Contract", are the fundamental authorities through which insurers
operate to settle claims of policyholders.
"Statutory
Conditions" apply to auto and property insurance policies and are found
in each Provincial Insurance Act. Most Canadian "Statutory Conditions"
mirror U.S. policies. The one major exception is in the property policy.
It does not contain a provision for a mandatory 'Examination Under
Oath' (EUO).
The
'EUO' is used very effectively in the US.
A
number of Canadian insurers recently added 'EUO'into their policies as
a "Special Condition". This effort has, however, been negated as evidenced
by a recent civil court decision (Foster vs. Chubb; Ont. Court (Gen.
Div.) Jan. 14,1999.). The Court said the policyholder was not
compelled to submit to a 'EUO' as this condition was not legislated in
the Provincial Insurance Act or included in the "Statutory Conditions"
of the insurance contract. An insurer adding this provision to the contract
on an arbitrary basis did not compel the insured's cooperation as it might
in U.S. jurisdictions.
Canada
begins to follow the U.S.
In
January of 1996, the Canadian insurance community was rocked by their
first major "bad faith" award (Whiten vs. Pilot, J. Matlow; Jan.
25, 1996). A jury awarded $1.0 million for "punitive damages".
Until this decision, Canadian courts had rarely had any punitive damages
awarded against an insurer beyond $10,000. Ringing the bell for $1.0 million
had a significant impact in Canada. The impact was diluted somewhat when,
in early 1999, the Ontario Court of Appeal upheld the original trial judges
"reasons", but reduced the punitive damage award to $100,000.
While
insurers were awaiting what the Ontario Court of Appeal was going to do
on this ground-breaking case, there were a string of other fire litigation,
civil jury trials, where punitive damages were awarded in a range from
$200,000-$750,000. The Supreme Court of Canada (the buck stops here) has
agreed to hear "appeals" on these cases. We will know sometime later this
year whether or not Canada will follow U.S.-style damage awards on fire
litigation cases.
Now...
while the civil court system was breaking new ground there was a major
shift in our criminal courts. In Regina vs. Ouida; Ontario Court-General
Division, the Crown Attorney withdrew criminal charges against
two parties accused of "arson" after evidence was excluded. The defense
lawyers successfully argued the "rights" of the accused persons had been
breached by the Fire Marshal who failed to obtain a search warrant for
the scene investigation. Any evidence seized was inadmissible. This case
determined, once and for all, the issues of Fire Marshals acting under
their Provincial (Administrative) authorities and Criminal Authorities.
This has been familiar ground for U.S. authorities for many years but
this case broke new ground in Canada. It also served to redefine working
relationships that existed between public authorities and insurance companies.
As
the "relationships" began to change in the mid-1990's, NFPA 921 arrived.
This had a profound impact on all fire investigators in Canada. Within
a short time-frame we also started to break ground on issues relating
to continuity of evidence; spoliation; qualifications of fire experts;
use of counter-experts; laboratory challenges; consent issues; disclosure
of evidence; privilege issues; etc. The 'minefield' we work in has many
parallels to what has evolved in the U.S. in the past 20 years. Our challenge
is that all of this has hit our country in a very short period. This has
required an accelerated learning curve for the professionals in Canada
who work in the fire investigation field.
World-Class
Teaching
To
fast track our learning curve many Canadians have "discovered" the U.S.-based
training school that is run in partnership between the International Association
of Arson Investigators and the Bureau of Alcohol, Tobacco & Firearms.
An advertisement / registration form for this school is can be obtained
from the author. This school is world class in content and instructional
techniques. This does not just happen…there is a story behind it.
In
the early 1980's, several U.S. States were bringing forward 'Arson Immunity
Laws'. Legislators recognized that most arson cases were built on circumstantial
evidence. They knew that this cowardly crime was quite often orchestrated
under cloak of darkness through a carefully crafted scheme. To fight the
crime legislators learned quickly that it was important for public authorities
to have access to information in the files of insurance companies…but…what
was the point obtaining information from insurers that did not embrace
the best of investigative techniques that were available?
"Partnerships"
is a buzzword of the late 1990's. In the early 1980's, the Bureau of Alcohol,
Tobacco and Firearms (A.T.F.) showed great vision in forming a partnership
with the International Association of Arson Investigators (I.A.A.I.) to
develop a training course that would benefit law enforcement and the insurance
community.
To
do this, a 'writing team' was formed to write curriculum. The project
was completed in early 1980. The original team included George Bradley,
Chris Nelson, Bob Stellingworth, Gus Gary, Larry Williams, Sonny Wilson,
Neil Olderman, and Joe Toscano, to name a few. A second writing team involving
many of this original cast did a further updating of the course with additional
input from Ken Goodnight, Dave Campbell and Joe O'Doud. Many of these
names are no doubt very familiar to the readers given their continued
commitment to the path of education not only in the I.A.A.I. but also
for many educational bodies.
The
highlight of this new program was a "practical exercise." This was known
as the "Bay Bowling Lanes" case. It was written using adult-based interactive
learning techniques. Actors and role players were part of the dynamics
of this teaching style which forced small 'teams' of students to quickly
case manage massive amounts of investigative material in a short time
frame.
The
weeklong class is held both on and off-campus at the Federal Law Enforcement
Training Center in Glynco, Georgia. F.L.E.T.C. has 1,500 acres of land
at this site and is the home to 70 federal law enforcement-training agencies.
This IAAI-ATF 'arson for profit' class is the only non-law enforcement
personnel class allowed on the F.L.E.T.C. training facility. While the
class includes insurance personnel, it is common to find strong representation
from the law enforcement and fire communities.
To
remain current, the curriculum has been re-written several times in the
past 10 years to include the quickly changing environment that we work
in.
There is
strong continuity in the pool of instructors who currently teach at
the school.
This includes:
| •
Joe Toscano |
Vice President- American ReInsurance. |
| •
Dave Campbell |
North
Carolina Bureau of Investigation |
| •
Rick Weber |
ATF
Philadelphia |
| •
Buddy Morgan |
ATF
(retired) |
| •
Alan Graham |
ATF
Boston |
| •
Luis Velaszko |
ATF
National Academy |
| •
Chris Porreca |
ATF
Miami |
| •
Sandy Burnette |
Butler, Burnette,Pappas Law Firm |
| •
Ed Armstrong |
-
ATF lawyer (retired) |
| •
Jack Yates |
Yates
& Associates |
| •
Glenn Gibson |
Crawford
Adjusters Canada Inc. |
| •
Jim Forbes |
PriceWaterhouseCoopers
Accountants |
| •
Ken Goodnight |
International
Resources Global |
| •
Gus Gary |
International
Resources Global (ex-ATF) |
In Canada,
this program has been very important to accelerating our learning curve
on fire investigative techniques. Canadians not only are regular students
at F.L.E.T.C. but the program has been "imported" in the past few years
with over 250 Canadians graduating from the course in seminars in Toronto,
Ontario and Banff, Alberta. Very clearly, from a Canadian perspective,
we have received great value from this teaching program.
Although
the highlight of the week is the intensive practical exercise, there is
hands-on teaching of 'origin and cause' investigation utilizing the 'flashover
cells' at the F.L.E.T.C. base. There are also teaching blocks on interviewing
techniques; financial investigations, case management, and legal. All
instruction leads into the practical exercise that drives home the classroom
instruction to complete the adult learning cycle. The practical exercise
utilizes actors and actresses to ensure 'real-life' drama to the evolution
of the case.
In the
fall of 1999, the F.L.E.T.C. class was "sold out" with 51 students.
The critiques from this class included comments such as:
|
•
"Of all the training courses I have attended in the past 18 years,
this is by far the best. I truly learned new techniques that will
(and would have) make a difference. Thanks"
|
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•
"I was very impressed with the seminar. The practical exercise
was very life-like and stressed the importance of working in a
team. I would recommend this seminar to everyone in the insurance
industry."
|
| •
"All our objectives were realized- Great seminar! The week flew
by... thanks". |
Summary
There is
no question that the "bar has been raised" in terms of the professionalism
and knowledge required of anyone associated with fire investigations.
The solution to the anxiety associated with this push is rooted in the
path of continuous learning. In Canada, I have illustrated the impact
of the fast pace of change we are experiencing in our civil and criminal
courts affecting fire investigators. The curiosity might be how we, north
of your borders, have embraced the IAAI-ATF training school as a key component
of our learning path.
Both the
IAAI and ATF are to be commended for the dedication over the long period
that they have continued to run this program for the benefit of the fire
investigation community. The instructors in the program have also done
a superb job of keeping the course content both current and relevant.
This has not been without personal sacrifices on their part. Good stuff!
The last
comment I have is to my fellow insurance professionals. Sixteen years
ago, I had the opportunity to attend an IAAI program. I have taken far
more than I have given to this superb organization. It is unbelievable
to see the number of people who volunteer their time and effort to the
IAAI.
My concluding
wish is that more property loss adjusters would realize the educational
and networking value of being a member of the IAAI
This article appears courtesy of Munich Re America, Inc. formerly American Re-Insurance Company.
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