The intentional or criminal act exclusion clause in a homeowners insurance contract excludes coverage to an act or omission that causes harm that is criminal in nature. Intent is not necessary.

The Court of Appeal held that where an Insured was convicted of criminal negligence causing harm, the exclusion in the homeowners policy for damages caused by intentional or criminal acts applied even without proof of intention to cause the injury or damage, so long as the act or omission that caused the harm was criminal in nature.

R.E. v. Wawanesa Mutual Insurance Co., [2007] O.J. No. 482, Ontario Court of Appeal, S. Borins, R.P. Armstrong and S.E. Lang JJ.A., February 13, 2007

This was an appeal by the Insurer from a motion judge’s finding that a teenager (“Ryan P.”) was covered under his aunt and uncle’s home insurance policy despite being convicted of criminal negligence causing harm following an accident in which he accidentally shot Ryan E. in his father’s house. Following a trial, Ryan P. and his father were ordered to pay $800,000 in damages to Ryan E. When the judgment went unsatisfied, Ryan E. commenced proceedings against Wawanesa Mutual Insurance Co. (“Wawanesa”) and Commercial Union of Canada (“Commercial”), the Insurers of Ryan P.’s aunt and uncle and his mother, respectively.

Wawanesa’s policy provided the Insured with broad coverage for damages arising from any bodily injuries or property damage arising out of personal activities anywhere in the world except where such damages were caused by an intentional act or criminal act. The issue therefore was whether criminal negligence causing bodily harm was a “criminal act” within the meaning of the exclusion clause.

Wawanesa argued that the criminal act exclusion clearly applied because Ryan P. had been convicted of criminal negligence causing bodily harm arising from the shooting. The motions judge rejected this argument finding that criminal negligence was not a criminal act but rather a subset of negligence.

The Court of Appeal disagreed finding that the phrase “criminal act” means any breach of the Criminal Code. The exclusion applied to injury “caused by any intentional or criminal act”. If the criminal act had to be intentional, there would be no need to include the “or criminal act” wording in the policy. The exclusion applied even without proof of intention to cause the injury or damage so long as the act or omission that caused the harm was criminal in nature. In this case, it was undisputed that the injuries were caused by Ryan P.’s criminal act. Accordingly, the Court of Appeal allowed the appeal and held that the motion judge erred in finding that Ryan P.’s conviction for criminal negligence did not constitute a criminal act that was caught by the exclusion clause.

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