Canadian Underwriter

Why Intact doesn’t have to defend a man found not criminally responsible for a knife attack

April 14, 2023   by David Gambrill

stabbing with a knife, assault. Illustration. Black silhouette on rad background

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Intact Insurance does not have a duty to defend a man with schizophrenia who stabbed the owner of a firearms store while in the grip of a psychotic delusion, Ontario’s Court of Appeal has ruled.

Brett Butterfield 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,” the court found. “He was charged with aggravated assault but was found not criminally responsible pursuant to s. 16 of the Criminal Code.”

The injured owner sued his attacker for negligence. The victim’s statement of claim accused Butterfield of having a history of mental illness; therefore, Butterfield could have reasonably foreseen he might injure or kill someone in the course of purchasing or possessing a firearm.

Butterfield had a policy with Intact Insurance, which included an exclusion for “bodily injury or property damage caused by any intentional or criminal act or failure to act by…any person insured by this policy.”

Butterfield argued the victim made a claim in negligence, not one based on an intentional tort to cause bodily injury, so Intact’s policy exclusion did not apply. But the Court of Appeal ruled the negligence claim could not be dissociated with the attempt to injure in this instance.

“The damages suffered by [the victim] clearly flow from the attack,” the Court of Appeal ruled in reasons issued Friday. “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.”

The Appeal Court thus upheld the finding of the lower court judge, which Butterfield had appealed.

The lower court judge found she was not bound by the labels used in the victim’s statement of claim. Rather, her task was to figure out the essence of the complaint. Although the victim pleaded negligence, she found the claim was clearly derivative to the intentional tort, which is that Butterfield had assaulted the store owner.

The fact that Butterfield was found not criminally responsible for his actions did not change that the intent was to cause bodily harm, the Appeal Court found. This put the action within the definition of the policy exclusion.

“Mr. Butterfield understood the physical nature and consequences of his act,” the Court of Appeal found. “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.”

Since the appeal court found Butterfield’s action came under Intact’s policy exclusion for “intent” to cause bodily injury, the court did not address whether the action fit within the policy exclusion under the “criminal act” provision.


Feature image courtesy of Mokhtari