Problematic Pleadings: ONCA Reiterates that Intentional Torts Cannot be Converted into Negligence Through Strategic Framing

Introduction

The issue of whether an intentional action can be properly framed in negligence dates back to the seminal case of Non-Marine Underwriters, Lloyd’s of London v. Scalera.[2] Since then, the courts have repeatedly proclaimed that such attempts are futile. However, this has not stopped counsel from attempting to disguise intentional torts as negligence within their pleadings.

In Butterfield v. Intact Insurance Company,[3] the Ontario Court of Appeal once again reminds us that although a finding of negligence is required for plaintiffs to access the “deep pockets”[4] of defendants’ insurance companies, negligence actions that are derivative of intentional torts are not acceptable.

Facts

Mr. Butterfield attended a firearms store to apply for a firearms license. While he was there, he suffered a psychotic episode and arrived at the mistaken belief that Mr. Carr, the store owner, had raped and murdered his female friend. Mr. Butterfield left the firearms store and returned with a hunting knife, after which he proceeded to attack Mr. Carr, while shouting that he “raped and murdered [Mr. Butterfield’s] girlfriend” and that “murderers need to be murdered.”

Afterwards, Mr. Butterfield was arrested and charged with aggravated assault. He underwent two forensic psychiatric assessments, which determined that Mr. Butterfield suffered from schizophrenia. Ultimately, he was found not criminally responsible by reason of mental disorder, known as “NCR” pursuant to s.16 of the Criminal Code.[5]

Mr. Carr sued Mr. Butterfield, alleging that he was negligent in attending the store to apply for a firearms license when he was lucid, when it was reasonably foreseeable that he would injure or kill someone.[6]

Mr. Butterfield’s Insurance Policy

Mr. Butterfield was insured by Intact under a Condominium Unit Owner’s Policy. This policy included third party liability insurance coverage. This means that Intact owed its policyholder, Mr. Butterfield, a duty to defend him in any lawsuit, as well as a duty to indemnify him up to a limit of $2 million should he be ordered to pay any judgements stemming from lawsuits.

However, there were also intentional and criminal act exclusions in Mr. Butterfield’s policy. These clauses meant that Intact had no duty to defend or indemnify Mr. Butterfield in relation to lawsuits that arose as a result of him committing any intentional or criminal acts.[7] Intact relied on these clauses to deny coverage to Mr. Butterfield, noting that the knife attack was both intentional and criminal.[8] In response, Mr. Butterfield brought an application seeking a declaration that he was entitled to coverage.[9]

The Application Judge (Ontario Superior Court)

The application judge concluded that Intact did not owe Mr. Butterfield defence and indemnity based on the intentional and criminal act exclusions in his policy.[10]

Mr. Butterfield pointed to the fact that the statement of claim was grounded in negligence, and not in intentional torts, to support his argument that the intentional and criminal act exclusions did not apply to him and that he was therefore owed coverage.  Mr. Butterfield further tried to argue that the relevant negligent act occurred not when he attacked Mr. Carr, but rather when he made the lucid decision to attend the gun store to complete the license application, the very same argument advanced by the plaintiff in the statement of claim. Interestingly, both Mr. Carr, the plaintiff, and Mr. Butterfield, the defendant, would have benefitted if it was determined that the action was properly grounded in negligence. Mr. Butterfield would benefit as he would have received coverage since negligent acts (as opposed to intentional acts) are not excluded by his policy and Mr. Carr would benefit as he would then have access to the proceeds that Intact would have to provide to indemnify Mr. Butterfield if Mr. Butterfield lost the case. Despite both parties’ best efforts, these arguments were fruitless.[11]

The application judge harkened back to Non-Marine Underwriters, Lloyd’s of London v. Scalera for the enduring principle that:

“When considering an exclusion clause in an insurance policy, the court is not bound by the labels used in the Statement of Claim. The court should determine which of the plaintiff’s legal obligations are properly pleaded. When faced with allegations of both intentional and non-intentional tort, a court construing an insurer’s duty to defend must decide whether the harm allegedly inflicted by the negligent conduct is derivative of the harm caused by the intentional conduct. The plaintiff cannot change an intentional tort into a negligent one simply by choice of words. The court must examine the substance of the allegations contained in the pleadings to determine the true nature of the claims. If the alleged negligence is based on the same harm as the intentional tort, the insured will not be permitted to avoid the exclusion clause for intentionally caused injuries.”[12] (emphasis added)

The application judge added that “the elements of the negligence and intentional tort are not sufficiently disparate to make them unrelated. While Mr. Butterfield may have been negligent in applying for the firearms permit, there is no causal link between that negligence and the damages, without the intentional tort of assault.”[13]

This led her to properly conclude that the “true nature of the claim” was that of the intentional tort of assault. She stressed that “a plaintiff cannot convert the intentional tort of assault into an action in negligence solely to ensure that the defendant’s insurer will provide the necessary ‘deep pocket’ to make a judgment recoverable.”[14]

Having reached this conclusion, she proceeded to analyze whether Mr. Butterfield’s intentional assault was excluded from coverage by the intentional and criminal act exclusions of his policy.

She held that Mr. Butterfield’s action was clearly criminal. She noted that a verdict of not criminally responsible (NCR) is only available once the two elements of a crime have already been established. These elements are the actus reus (the illegal action itself) and the mens rea (the intention to commit the illegal action).[15] While a judgement of not criminally responsible means that the person did, in fact, commit the criminal act of which they are accused, it means that they cannot be held responsible for it because their disorder prevented them from appreciating the nature and quality of their actions, or because their disorder prevented them from knowing that their actions were wrong.[16]

The application judge explained that the judge at the criminal trial found that Mr. Butterfield satisfied both the actus reus and the mens rea of the offence. Therefore, he did in fact commit the criminal offence. However, due to his psychotic episode, Mr. Butterfield did not believe that his assault of Mr. Carr was morally wrong.[17]

Moreover, Mr. Butterfield outright admitted he committed the crime, and the Ontario Court of Justice found as such as well.[18]

The test for whether someone suffering from a mental illness can be considered to have been acting intentionally within the civil context (as opposed to the criminal context) is like a pared down, more simplistic version of the NCR test from section 16 of the Criminal Code.[19] The civil test, from Darch Estate v. Farmer’s Mutual Insurance Co., asks whether the defendant was able to appreciate the nature and consequences of his act.[20] The application judge held that Mr. Butterfield appreciated the nature and consequences of act as he knew that he would injure Mr. Carr by attacking him with the hunting knife. Therefore, she held that his act was indeed intentional. There is no equivalent NCR defence in the civil law and accordingly, whether Mr. Butterfield believed that his assault of Mr. Carr was morally correct is irrelevant in the civil calculus.

Thus, the application judge concluded that the intentional and criminal act exclusions operated to vitiate Mr. Butterfield’s coverage so that Intact owed him neither a defence, nor indemnity.[21]

The Court of Appeal for Ontario

The Court of Appeal disposed of this case in a very brief 15 paragraphs. The central question on appeal was whether the application judge erred in finding that the alleged negligence claim was derivative of an intentional tort. There were two other grounds of appeal, but both were premised upon this initial question.[22]

The Court of Appeal agreed with the application judge’s conclusion that the alleged negligence was derivative of an intentional tort. [23] It agreed that the application judge was correct in her conclusion that the intentional act exclusion in Mr. Butterfield’s policy would operate to vitiate his coverage.

Believing this to be sufficient, the Court of Appeal did not continue on to analyze the criminal nature of Mr. Butterfield’s action.

Conclusion and Takeaways

This decision is significant as it joins the long line of cases dating back to Scalera[24] that stand for the legal principle that intentional torts cannot be converted into negligence merely by their characterization in the pleadings. This case is particularly interesting as it reminds us that this holds true even in cases in which a criminal verdict of NCR (Not Criminally Responsible) has been rendered. Just as plaintiff lawyers should not plead negligence founded in intentional actions to gain access to the coffers of insurance companies, so too should defence lawyers recoil from pointing to improperly framed statements of claim in a vain attempt to secure coverage for their clients. Although courts have spilled much ink in their attempts to elucidate this issue, it remains a problem that arises from time to time, and is therefore one against which every litigator should remain vigilant.

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