Following a motion brought pursuant to s. 132 of the Insurance Act, the insurers of the aunt and uncle of a boy who shot the Plaintiff were required to indemnify the Plaintiff’s family when the judgment went unrealized. The boy who shot the Plaintiff was a member of the household of the aunt and uncle at the time of the shooting. The shooting was neither an intentional nor a criminal act and therefore the exclusion clause did not apply.

R.E. v. Wawanesa Mutual Insurance Co., [2006] O.J. No. 904 Ontario Superior Court of Justice

This was a motion by the Plaintiffs, the E. Family, for a determination of a question of law regarding whether R.P. was insured under the home insurance policies of his mother and/or aunt and uncle. R.P. shot and seriously injured his friend, the Plaintiff R.E., while playing with guns in the unoccupied home of R.P.’s father, who was uninsured.

R.E. successfully sued R.P., his parents and his aunt and uncle in negligence, obtaining a judgment at trial of approximately $800,000 plus costs. R.P.’s father was not insured against this loss. When the judgment went unrealized, the Plaintiffs subsequently sued the respective insurers of R.P.’s mother and aunt and uncle for indemnification on the unsatisfied judgment pursuant to section 132 of the Insurance Act, R.S.O. 1990, c. I.8.

At the time of the shooting, R.P. had been living temporarily with his aunt and uncle, C.P. and J.P for 10 days. Prior to the shooting, R.P. had been living at his father’s home. He had not lived with his mother for at least six months.

The Court considered three issues. The first was whether R.P. was “in” or “of” the household of the Insureds. The Court found that when R.P. was living with his aunt and uncle, he was not part of any other functioning household. He was connected to his aunt and uncle by familial bonds and they provided guidance, encouragement and supervision. Accordingly, R.P. was a member of the household of his aunt and uncle and fell within the definition of a member of the household of the insured.

The second issue was whether R.P. was part of his mother’s household. The evidence demonstrated the boy was estranged from his mother at the time he elected to stay with his father. For this reason, R.P. was not a member of the mother’s household at the time of the Plaintiff’s injuries and he was therefore not insured under the terms of her policy.

The third issue was whether R.P. was excluded from coverage by virtue of engaging in an intentional or criminal act. Both insurance policies excluded an insured from coverage for any “intentional or criminal act” that produced bodily injury or property damage. The Court found that R.P.’s conviction for criminal negligence was not with respect to a criminal act that is caught by the exclusion clause. Criminal negligence is a subset of negligence. According to the test in Non-Marine Underwriters, Lloyds of London v. Scalera, [2000] 1 S.C.R. 551 (S.C.C.), the insurers must demonstrate an intentional act plus an intent to injure in order to trigger the exclusion clause. The Court found that they could not do so because, while pointing the firearm at the Plaintiff was intentional, the discharge of the gun was accidental. Accordingly, coverage for R.P. was not excluded under coverage found in the aunt and uncle’s policy.

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