An exclusion clause excluding liability coverage for claims arising from bodily injury caused by an intentional act applied to exclude coverage for claims for alleged bullying

Insurance law – Homeowner’s insurance – Interpretation of policy – Duty to defend – Exclusions – Negligent supervision of children – Intentional acts – Criminal acts

C.S. v. TD Home and Auto Insurance Co., [2015] O.J. No. 3063, 2015 ONCA 424, Ontario Court of Appeal, June 11, 2015, J.C. MacPherson, E.A. Cronk and E.E. Gillese JJ.A

The respondents on this appeal were defendants in the same underlying action as in D.E. v. Unifund Assurance Co., 2015 ONCA 423 (“Unifund”). The plaintiff in the underlying action claimed against two fellow students for physical and psychological injuries from being bullied, and claimed against their parents for failure to respond to the bullying. The respondents on this appeal were insured under a homeowners’ insurance policy issued by TD Home and Auto Insurance Co. (“TD”) and had obtained a declaration that TD had a duty to defend them in the action.

For the same reasons in Unifund, the court of appeal held that TD did not have a duty to defend and indemnify the respondent parents. The claims against the respondent daughter in the underlying action were that she verbally threatened and physically assaulted the plaintiff at school and in the community and verbally threatened the plaintiff via telecommunications. The court of appeal held that the claims were for alleged assault and were clearly excluded by exclusion clause 6(a) which precluded coverage for claims arising from bodily injury or property damage caused by an intentional or criminal act or failure to act by any person insured by the policy.

In the result, the appeal was allowed and TD was granted a declaration that it did not have a duty to defend or indemnify any of the three respondents in the underlying action.

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