Court Considers Criminal and Intentional Act Exclusions in Person Found Not Criminally Responsible

The case of Butterfield v. Intact Insurance Company, 2022 ONSC 4060, involves a duty to defend application against an insurer.  The applicant, who has schizophrenia, suffered a psychotic episode while at a firearms store.  He stabbed the store owner in the honest but deluded belief that he was defending himself and/or his family.  The applicant was charged with aggravated assault, but was found Not Criminally Responsible.

The store owner sued the applicant in negligence.  The store owner alleged that the applicant attended the store and applied for a firearms licence when he was lucid and when it was reasonably foreseeable that he would injure or kill someone.

The applicant is insured by Intact Insurance Company under a condominium unit owners policy.  He sought to be defended by Intact in the lawsuit.  Intact denied coverage based on intentional act and criminal exclusions in the insurance policy.

Justice Braid first examined the true nature of the claim in order to determine whether the claim related to negligence or an intentional act.

Although the plaintiff pleaded negligence against the applicant, Justice Braid noted that, when considering an exclusion clause in an insurance policy, the court is not bound by the labels used in the statement of claim.  A plaintiff cannot change an intentional tort into a negligent one simply by choice of words.

Justice Braid held that the alleged negligence pleaded in the statement of claim is based on the same harm as an intentional tort of assault (if it had been pleaded).  The true nature of the claim was the intentional tort of assault.

Justice Braid then considered whether the applicant’s actions were criminal.  As noted, in his criminal proceeding, the applicant had been found Not Criminally Responsible.

Justice Braid indicated that the term “criminal act” in the insurance policy is unambiguous and means any breach of the Criminal Code.  An insurer can deny coverage for damage caused by contravention of the Criminal Code regardless of the intent or lack of intent to cause damage.

In the criminal context, before a finding of Not Criminally Responsible can be made, the court must be satisfied that both the actus reus and the mens rea of the offence have been established.

Justice Braid noted that the judge in the criminal proceeding must have been satisfied that the actus reus and mens rea of the offence of aggravated assault were proven beyond a reasonable doubt.  Therefore, Justice Braid found that the damages claimed by the plaintiff were caused by a criminal act of the applicant.

Justice Braid also examined whether the applicant’s actions were intentional.  The applicant argued that it could be found that his pscychosis was so extreme that he was not capable of appreciating the nature and quality of his act, which would render him immune from intentional tort liability. 

However, Justice Braid indicated that, to establish this, the applicant’s conduct would have to be akin to that of a robot or an automaton for the court to exonerate him.  Justice Braid indicated that there was absolutely no evidence of such an extreme state.

Justice Braid held that the applicant understood the physical nature and consequences of his act.  Although he clearly did not appreciate that his actions were morally wrong, his actions were nevertheless intended to harm the store owner.

Justice Braid concluded that the knife attack was both a criminal act and an intentional act.  Therefore, the exclusions in the insurance policy apply, and Intact does not have a duty to defend or indemnify the applicant.