Court of Appeal for Ontario
DATE: 20230406 DOCKET: C70961
Fairburn A.C.J.O., MacPherson and Miller JJ.A.
BETWEEN
Brett Butterfield Applicant (Appellant)
and
Intact Insurance Company Respondent (Respondent)
Counsel: Daniel S. Freudman, for the appellant Douglas A. Wallace and Sean Miller, for the respondent
Heard: April 3, 2023
On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated July 13, 2022, with reasons reported at 2022 ONSC 4060.
Reasons for Decision
[1] We dismissed this appeal earlier this week with reasons to follow. These are our reasons.
[2] The appellant suffered a psychotic episode while at a firearms store. He stabbed the store owner under the honest but deluded belief that he was defending himself or a member of his family. He was charged with aggravated assault but was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code, R.S.C. 1985, c. C-46.
[3] The victim of the knife attack brought a claim in negligence against the appellant.
[4] The victim’s Statement of Claim (the “Claim”) alleges that at the material time, the appellant was suffering from and had a history of mental illness. While the appellant was not symptomatic before the attack, when he was applying for a firearms licence, the Claim alleges that it was reasonably foreseeable that the appellant may have injured or killed someone in the course of purchasing or possessing a firearm. When the appellant was lucid and not symptomatic, therefore, these risks were said to be reasonably foreseeable to him.
[5] The appellant has insurance coverage under a policy issued by the respondent. The policy has an exclusion clause, precluding insurance where there is bodily harm arising from an intentional or criminal act:
We do not insure claims arising from:
- bodily injury or property damage caused by any intentional or criminal act or failure to act by: a) any person insured by this policy; …
[6] The appellant brought an application claiming the respondent had a duty to defend. The application was dismissed. The application judge found that the knife attack was both an intentional act and a criminal act, so the exclusion clause in the insurance policy applied.
[7] This appeal is predicated on three alleged grounds, two of which require an answer to the following question: Did the application judge err in finding that the alleged negligence claim is derivative to an intentional tort? The third ground has to do with the application judge’s finding that the appellant committed a criminal act. In light of our answer to the aforementioned question, this third ground need not be addressed.
[8] With respect to the alleged negligence claim, the application judge found, at paras. 17-18, as follows:
[17] I have carefully reviewed the Statement of Claim. I find that the alleged negligence claim is based on the same harm as an intentional tort of assault (if it had been pleaded). 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.
[18] The damages suffered by [the victim] clearly flow from the attack. 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. The negligence claim is derivative of an intentional tort, which is the true nature of the claim. I shall therefore consider whether the intentional tort of assault is captured by the exclusion clause in the insurance policy.
[9] We see no error in the application judge’s conclusion about the true nature of the claim.
[10] The application judge considered the allegations in the Claim. She correctly noted that the court is not bound by the labels used in the Claim. Rather, the court’s task is to determine the actual gravamen of the complaint. Despite the fact that negligence has been pled in this case, that claim is clearly derivative to the intentional tort alleged, namely, that the appellant assaulted the plaintiff, causing injury. As the application judge noted at para. 46:
[46] Mr. Butterfield understood the physical nature and consequences of his act. He clearly did not appreciate that what he was doing was morally wrong given the schizophrenia diagnosis, but that does not change the fact that his actions were intended to harm [the victim]. Mr. Butterfield’s actions demonstrate a clear intention to injure or kill [the victim] with a large knife, even if it was based on a delusional belief wherein he did not know his actions were morally wrong.
[11] On the record in this case, the application judge was entitled to come to this conclusion. We would not interfere with that finding.
[12] Accordingly, the application judge did not err in finding that the exemption from coverage applied because this was a case where the claim arose from bodily injury caused by an intentional act.
[13] As already mentioned, in light of this conclusion, there is no need to address the third ground of appeal.
[14] For these reasons we dismissed the appeal.
[15] On consent, no costs are awarded.
“Fairburn A.C.J.O.” “J.C. MacPherson J.A.” “B.W. Miller J.A.”