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]
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