Jan 29, 2019
Ont. Super. Ct. finds intentional act exclusion applies and no defence or indemnity owed
Author Michael S. Teitelbaum
In Obront v. The Dominion, Ontario Superior Court Justice Pattillo dismissed the insured's application seeking a defence and indemnity under a homeowner's policy finding that the true nature of the claim was for the intentional tort of battery. In so doing, His Honour declined to follow the reasoning in an earlier Superior Court decision, ING v. Mitsios.
His Honour explained that the underlying action arises out of an incident that occurred on July 5, 2012 at Bayview Glen Day Camp in Toronto. The plaintiff, who was a counsellor at Bayview Glen at the time, was injured as a result of an incident involving the Applicant who, at the time, was a camper at the camp and enrolled in the Staff-in-Training Program.
The Amended, Amended Statement of Claim alleges, among other things, that the Applicant, who was a minor at the time, “suddenly and without warning … approached [the plaintiff] from behind and put his two hands on top of [the plaintiff’s] head. He proceeded to pull [the plaintiff’s] head back and knee him in the back.” (Paragraph 9). As the plaintiff was walking to a nearby bench to sit, the Applicant “approached [the plaintiff] and once again pulled his head back and this time punched [the plaintiff] in the neck.” (Paragraph 11).
The Claim further pleads that the injuries suffered by the plaintiff were caused and/or contributed to by the negligence of the defendants (paragraph 14). The particulars against the Applicant are as follows:
a) He negligently inflicted harm upon [the plaintiff], by engaging in excessive and dangerous horseplay;
b) He negligently pulled [the plaintiff’s] head back, kneed him in the back and punched him in the neck;
c) He continued to engage in the excessive and dangerous horseplay on the plaintiff after he had fallen to the ground;
d) He behaved in a reckless manner with total disregard to [the plaintiff’s] safety, when he knew or ought to have known that such behavior might cause serious injury; and
e) He assaulted [the plaintiff] without provocation.
At the time of the incident, the Applicant and his parents were insured under a homeowner's policy issued by the Respondent.
Based on the allegations in the original Statement of Claim which described the incidents as an “assault” and did not contain the words “excessive and dangerous horseplay”, the Respondent sent the Applicant’s parents a reservation of rights letter on February 6, 2014, advising that the Applicant was not covered under the Policy due to the Intentional Acts Exclusion.
 The Intentional Acts Exclusion in the Policy reads:
This policy does not apply to:
INTENTIONAL OR CRIMINAL ACTS, meaning bodily injury or property damage resulting from:
an intentional or criminal act by any person or any named insured who is insured by this policy or,
at the direction of any person or named insured who is insured by this policy.
In concluding no defence or indemnity was available as the allegations of negligence were derivative of the alleged intentional tort of assault, His Honour stated in part:
 The substance of the plaintiff’s legal claims in the Action as pleaded in paragraph 14 B of the Claim are for negligence and assault and battery. They are not pleaded in the alternative. Further, both causes of action arise out of the same factual allegations in the Claim that the Applicant, without warning, pulled the plaintiff’s head back twice, the first time kneeing him in the back and the second time punching him in the neck. Those allegations clearly sound in intentional tort. The negligence claim therefore is derivative of the intentional tort for the purpose of the exclusion clause analysis (Scalera, para. 85).
 The Applicant submits that in order for the Intentional Acts Exclusion to apply, it must be specifically plead [sic] that the defendant (Applicant) intended to injure the plaintiff. In support of that submission, the Applicant relies on the decision of this court in ING Insurance Co. of Canada v. Mitsios,  O.J. No. 338 (S.C.J.).
 Mitsios was an application by ING for a declaration it had no duty to defend Mitsios in respect of a claim against him that alleged the plaintiff sprayed the defendant with a water hose at work and while the defendant was “restraining” the plaintiff, he used “excessive force” and by placing him in a headlock, caused the plaintiff to lose his balance and fall after which the defendant fell on the plaintiff.
 The Motion Judge held that the exclusion clause did not apply because there was no express pleading that the defendant “intended to injure” the plaintiff. In reaching that conclusion, the Motion Judge relied on the following statement by Iacobucci J. in Scalera at para. 92:
92 At the outset, the wording of this clause presents a threshold issue. The respondent argues that the clause requires only an intentional act, not an intent to injure. The majority below agreed with this interpretation. However, I agree with Finch J.A.'s dissent on this point. If the respondent were correct, almost any act of negligence could be excluded under this clause. After all, most every act of negligence can be traced back to an “intentional ... act or failure to act”. As this Court made clear in Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd.,  1 S.C.R. 309, “negligence is by far the most frequent source of exceptional liability which [an insured] has to contend with. Therefore, a policy which would not cover liability due to negligence could not properly be called 'comprehensive'” (pp. 316-17). Consistent with this decision, the purpose of insurance, and the doctrines of reasonable expectations and contra proferentem referred to above, I believe the exclusion clause must be read to require that the injuries be intentionally caused, in that they are the product of an intentional tort and not of negligence.
 I agree with the Respondent that when Iacobacci J.’s reasons in Scalera are read as a whole, what the learned judge was stating in the above paragraph is that the trigger for the exclusion is that the damage arose from an intentional tort, rather than simply conduct that was intentional.
 It must also be remembered that the intention to harm or injure the plaintiff is not an essential element of the tort of battery. Battery requires only intentional contact which is harmful or offensive. Although Scalera concerned a sexual assault, Iacobucci J. discussed the elements of the tort of battery at paras. 96 to 99 as follows:
96 Sexual battery is a form of battery, the traditional test for which is relatively straightforward. In M. (K.), supra, at p. 25, La Forest J. defined assault and battery as “causing another person to apprehend the infliction of immediate harmful or offensive force on her person coupled with the actual infliction of that harmful or offensive force”. What is notably absent from this definition is any intent to injure. Professor Klar, in his second edition of Tort Law (1996), makes this point at p. 42:
For the tort of intentional battery, the defendant must have intended an offensive, physical contact with the plaintiff. The defendant need not have intended to harm or injure the plaintiff, although in most battery cases there is an intention to injure.
97 A. M. Linden, in Canadian Tort Law (6th ed. 1997), emphasizes this point at p. 43: “A battery can be committed even though no harm or insult is intended by the contact. If the contact is offensive to the recipient, even if a compliment was intended, it is tortious.” See also Wilson v. Pringle,  2 All E.R. 440 (C.A.), at p. 445; Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972); O. M. Reynolds, “Tortious Battery: Is 'I Didn't Mean Any Harm' Relevant?” (1984), 37 Okla. L. Rev. 717.
98 Intentional battery generally requires only the intent to cause the physical consequences, namely, an offensive touching. Klar, supra, makes this point at p. 30:
Technically, however, the concept of “intention” in the intentional torts does not require defendants to know that their acts will result in harm to the plaintiffs. Defendants must know only that their acts will result in certain consequences. It is not necessary for defendants to realize that these intended consequences are in fact an infringement of the legal rights of others. Intention, in other words, focusses on physical consequences.
To similar effect is Linden, supra, at p. 33: “Conduct is intentional if the actor desires to produce the consequences that follow from an act.”
99 Moreover, if a tort is intended, it will not matter that the result was more harmful than the actor should, or even could have foreseen. Linden, supra, at p. 45, quotes Borins Co. Ct. J. (as he then was) in Bettel v. Yim (1978), 20 O.R. (2d) 617, at p. 628:
If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should make no difference. To hold otherwise ... would unduly narrow recovery where one deliberately invades the bodily interests of another with the result that the totally innocent plaintiff would be deprived of full recovery for the totality of the injuries suffered as a result of the deliberate invasion of his bodily interests. [Emphasis added.]
 In Buchanan v. Gan Canada Insurance Company, 134 O.A.C. 189, (2000), 50 O.R. (3d) 89 (C.A.), the Court of Appeal dismissed an appeal from a decision that an insurer could rely on the exclusion clause in a home owner’s policy. In reaching its decision, the Court considered Scalera. At paragraph 20 of the decision, Macpherson J.A., in reference to the above discussion, noted that Iacobucci J. “held that the relevant distinction to be made is between injuries caused by an intentional tort and those which arise from negligence.”
 Accordingly, I decline to follow the reasoning in Mitsios. The fact that the Claim fails to plead the Applicant had an intention to injure does not remove the intentional tort. As discussed, intention to injure is not a requisite for the intentional tort of battery.
 The Claim pleads the essential elements of the tort of battery. Damages cause by offensive contact. Further, the intention to make physical contact which is offensive is evident, in my view, from the facts as pleaded in the Claim. As the Respondent submits, one does not grab someone’s head, pull it back and knee them in the back and then subsequently punch them in the neck without an intention to make physical contact which is offensive. Nor does describing the conduct as “excessive and dangerous horseplay” ameliorate it or change the true nature of the conduct pleaded.
 For the above reasons therefore, I find that the Respondent has no duty to defend the Applicant in the Action. The substance of Claim as pleaded is the intentional tort of battery which, based on the Intentional Act Exclusion, is excluded from coverage under the Policy.
 The Application is therefore dismissed.