Co-operative Fire & Cas Co. v. Saindon, [1976] 1 SCR 735

Supreme Court of Canada

Co-operative Fire & Cas Co. v. Saindon, [1976] 1 S.C.R. 735

Date: 1975-03-26

Co-operative Fire & Casualty Company (Third Party) Appellant;

and

Edmond Saindon (Defendant) Respondent;

and

Armand Sirois (Plaintiff) Respondent.

1975: February 4; 1975: March 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Insurance—Liability insurance—Liability arising from actions of insured—Intent to cause injury—Exclusion of liability for actions by the insured “with intent”—“Intent”—“Accident”—Insurance Act, 1968 (N.B.), c. 6, s. 2.

After an exchange of words between neighbours in which the son of Sirois admitted to cutting some branches from the cherry tree of Saindon, Saindon suddenly walked across towards the Sirois property. When in the middle of the roadway separating the two properties Saindon picked up the lawn mower which he was pushing to shoulder height and moving further across the roadway to the grass by the Sirois dwelling directed the mower towards Sirois’ face. Sirois put up his hands to protect himself and the blades severed the fingers from the left hand and injured the right wrist. Saindon’s explanation was that his intention was merely to scare Sirois. The trial judge awarded $39,942.40 by way of special damages against Saindon who joined the insurance company as a third party claiming indemnity under a Comprehensive Personal Liability Policy covering his premises. The trial judge dismissed the action against the insurer finding that Saindon’s conduct was criminal and that where injuries are caused by a deliberate calculated act, an assured cannot recover indemnity from his insurer. The Appeal Division reversed, being of opinion that the public policy exclusion rule (s. 2 of The Insurance Act, 1968 (N.B.), c. 6) did not apply to the facts in the case but only when the personal injury was intended.

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Held (Laskin C.J. and Pigeon and Beetz JJ. dissenting): The appeal should be allowed.

Per Martland, Judson, Ritchie, Spence, Dickson and de Grandpré JJ.: While the immediate cause of Sirois’ injury was a combination of his raising his hands to protect his face and the tipping of the mower, these two circumstances flowed directly from the respondent’s deliberate act in raising the mower as he did which was the dominant cause of the accident. This constituted criminal conduct which caused damage and the respondent’s actions were, therefore in breach of the public policy rule in s. 2 of The Insurance Act, 1968 (N.B.), c. 6. The language of the exclusion clause also applied to relieve the appellant from liability. Having found that the causes (of the injuries) specified in the exclusion clause applied, it was of no significance whether these were referred to as proximate causes or simply causes.

Per Laskin C.J. and Pigeon and Beetz JJ. dissenting: The exclusion of the insurer’s liability applied only to bodily injury or personal damage caused intentionally by or at the direction of an insured. The trial judge apparently treated the raising of the lawn mower as itself enough to establish intent to cause injury by importing a negligence concept into the assessment of the respondent’s conduct. Where intent to cause injury is relied on by an insurer as an exclusion from otherwise comprehensive coverage the insurer must establish that intent and not merely that there was a likelihood that injury might result from the act. The trial judge erred in applying his finding to the excepting clause in s. 2 of The Insurance Act, 1968 (N.B.), c. 6 and the Appeal Division properly pointed out that injuries which arise out of the commission of a criminal act are not, by reason of that fact alone, loss or damage that was intentionally brought about.

[Gray et al. v. Barr, [1971] 2 All E.R. 949; Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350; Ford Motor Co. of Canada Ltd. v. Prudential Assurance Co. Ltd. et al., [1959] S.C.R. 539 referred to.]

APPEAL from a judgment of the Appeal Division of the Supreme Court of New Brunswick[1] allowing an appeal from Pichette J. at trial. Appeal allowed with costs, Laskin C.J. and Pigeon and Beetz JJ. dissenting.

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G. Cooper and G. Rideout, for the appellant.

J.C. Angers, for the respondents.

The judgment of Laskin C.J. and Pigeon and Beetz JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—The facts in this case have been outlined by my brother Ritchie and I need not repeat them. There is, however, a question of what construction to put on them in the light of the excepting clause 6 of the indemnity policy issued by the appellant insurer to the respondent Saindon. The point at issue here is narrow but nonetheless significant. In my opinion, it is simply whether the word “intentionally” in the exclusionary clause covers both intentional and reckless acts. The resolution of this issue must be made with appreciation of the fact that we are concerned with an exempting provision of an insurance policy, and hence one to be construed strictly against the insurer.

There is no doubt that the insured intentionally raised the lawn mower up to the face of the plaintiff Sirois. Having regard to the fact that the blades of the lawn mower were whirling, the act was one likely to cause injury and in that respect reckless. The exclusion of the insurer’s liability is expressed as applying only “to bodily injury or personal damage caused intentionally by or at the direction of an insured”. The evidence does not support a finding of fact that the respondent intended to cause injury, but if that is to be the conclusion it must be based on a finding of mixed law and fact that recklessness in the handling of the lawn mower, which resulted in personal injury, is within the exclusion of the policy.

It appears to me that the trial Judge has treated the original raising of the lawn mower as itself enough to establish intention to cause injury, doing so by importing a negligence concept into the assessment of the respondent’s conduct. Thus, referring to the respondent’s act of raising up the lawn mower he said:

True, it is he said he did so to scare the plaintiff, but the fact remains that the defendant knew or ought to have known that this act on his part was a very dangerous one. In my opinion, his conduct was criminal.

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Criminal it could well be in terms of s. 202 of the Criminal Code, as showing “wanton or reckless disregard for the lives or safety of other persons”, but this is a standard which does not as such import mens rea in the traditional sense of subjective intention, although it may import mens rea in the sense of subjective foresight: see Binus v. The Queen[2].

Reliance is placed by the appellant insurer on Gray v. Barr[3], in the English Court of Appeal and on Wilkinson v. Downton[4]. The latter, a well-known case on intentional infliction of harm giving rise to tort liability for nervous shock involving physical injury, is not, in my opinion, relevant to the construction of an exclusionary clause in an insurance policy. Wright J. who decided the case put liability on the ground of imputation of an intention to produce the kind of injury which resulted. As explained in Fleming, Law of Torts, (4th ed. 1971), at p. 33, it was a case where the defendant’s conduct (falsely informing a woman that her husband had been severely injured in an accident) “was of a kind reasonably capable of terrifying a normal person or was known or ought to have been known to the defendant to be likely to terrify the plaintiff for reasons special to him”. This is, in effect, recklessness giving rise to intentional tort liability, an intentional tort being one expanded to embrace both harmful acts done either with intention or with foresight of consequences following upon a deliberate act not itself intended to produce the harm that resulted. It is no more telling on the construction of the exclusionary clause in the policy than are the cases on criminal negligence under the Criminal Code.

Gray v. Barr was a case involving the meaning of the word “accident” in an indemnification policy of insurance which covered liability in respect of bodily injury to any person “caused by

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accidents”. This was the risk covered and the Court was not there concerned, as it is here, with whether an exclusionary clause applied. I need not embark here on any discussion of the range of meanings that can be and have been given to the word “accident”. The Judges who sat in Gray v. Barr exposed the difficulties with that word in their lengthy reasons. Salmon L.J. put the matter in words which, to me, exhibit how little value Gray v. Barr can have for the present case which turns on a different word, on a different clause and on a different context, i.e., exclusion rather than coverage. He said this, at p. 964:

…No doubt, the language of the policy is wide enough to cover any kind of accident. I think, however, that it should be read as subject to an implied exception. The exception being that the policy does not apply to injuries caused by an accident occurring in the course of threatening unlawful violence with a loaded gun. It is, of course, well settled that no term can be implied into a contract unless necessary to give it ordinary business efficacy. I doubt whether from the point of view of ordinary business the parties can be taken to have intended to cover such a risk as this unless at any rate they had stated such an intention in express words…

There is another, a more cogent ground for rejecting the relevance of Gray v. Barr to the present case, and especially in so far as Gray v. Barr excludes acts with forseeable consequences from the category of accidents: see Lord Denning M.R., at p. 956 of [1971] 2 All E.R. and Phillimore L.J. at p. 969. That ground lies in the reasons of this Court in The Canadian Indemnity Company v. Walkem Machinery & Equipment Ltd.[5] That case also involved a liability policy providing for indemnity in case of accident. The insured’s liability, by reason of which a subsequent claim for indemnity was made, arose out of a situation where it was aware of the dangerous condition of a piece of equipment which collapsed with resulting damage. In giving the reasons of a plurality of this Court, Pigeon J. made it clear that such an occurrence would be an accident under the

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policy even though it was the result of a calculated risk or of a dangerous operation. It follows, so far as this Court is concerned, that an act or omission which involves a calculated risk or amounts to a dangerous operation from which injury or damage results cannot be said to be done or omitted with intent to cause the injury or damage in the absence of a specific finding that there was such intent.

In accord with this view is a line of insurance cases in the American Courts dealing with exactly the situation that confronts us here. Cases in the United States on insurance matters have been freely cited in Canadian Courts because form policies developed in the United States have found their way into policies issued by insurers here: see 11 C.E.D. (Ont.) (2nd ed. 1954), s. 44 (Title, Insurance); 13 C.E.D. (Western) (2nd ed. 1962), s. 42 (Title, Insurance); and see, for example, Caldwell v. Stadacona Fire and Life Ins. Co.[6] at p. 257; see also MacGillivray on Insurance Law (5th ed. 1961), passim.

Lumbermen’s Mutual Ins. Co. v. Blackburn[7], was a case where a rock was thrown at a boy by one of his schoolmates and it caused injury for which damages were recovered. Thereafter, suit was brought against an insurer of one of the defendants under a homeowners policy which like the present one contained an exclusion clause in the very words of the one involved here, namely, “bodily injury or property damage caused intentionally by or at the direction of the insured”. It was held that the exclusion did not apply because under it there must be an intention to inflict the actual injury, and the Court drew attention to a range of cases (it referred to them as the better reasoned opinions) which made the point that the intention must be to commit the injury as well as to do the act. Another such case, quite recent, is

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Vermont Mutual Insurance v. Dalzell[8] where the State Court of Appeals considered a claim against an insurer arising on the following facts. A pumpkin was thrown at a passing vehicle with the result that the windshield shattered and serious injuries were sustained by the motorist. It was held that the insurer could not properly invoke the exclusionary clause, one in substantially the same terms as that in the present case. There too, although the trial Judge held that there was an intention to injure, the appellate court concluded that there was no such evidence but at the most an intention to frighten. A similar result against the insurer under a like exclusionary clause was reached in the earlier Michigan case of Morrill v. Gallagher[9] where a lit firecracker was thrown into a room occupied by the plaintiff in an attempt to frighten him, but he suffered a hearing impairment and a nervous disorder.

Another such case holding against the insurer is Hanover Insurance Group v. Cameron[10] which draws the distinction that I have drawn here between injury caused intentionally and injury caused recklessly. I see no need to multiply references to American case law and emphasize only that those cited here involve the same kind of exclusionary clause as is relied upon by the insurer in this case. What is evident to me, and is, I think, supported by case law apart from the cases referred to here, is that “accident” and “intent” are not exhaustive complements. It follows that where intent to cause injury is relied upon by an insurer as an exclusion from otherwise comprehensive coverage, it cannot succeed merely by showing that a deliberate act was involved which was not an accident, without also showing that there was an intent to cause the injury and not merely that there was a likelihood that injury might result from the act.

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I come now to the issue of public policy which is covered by s. 2 of the Insurance Act, 1968 (N.B.), c. 6, reading as follows:

Unless the contract otherwise provides, a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity under a contract of insurance except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage; provided that in the case of a contract of life insurance this section shall apply only to disability insurance undertaken as part of the contract.

The contract of insurance in this case does not “otherwise provide”, and hence the question is whether a violation of law was committed by the insured “with intent to bring about loss or damage”. The insurer’s position here does not differ from its position under the exclusionary clause, save perhaps in its submission that it is enough to show an intent to bring about damage of any kind, even if there be no intent to bring about the damage that actually resulted.

The History of s. 2 of the New Brunswick Insurance Act, a provision that is part of the law of other provinces, is detailed in a Note by G.W. Reed in (1953), 31 C.B.R. 319, at pp. 325 et seq. Its remedial effect, relative to an alleged common law position that applied a disentitling public policy beyond deliberate crimes or offences, is evident in its comprehensive terms, qualified only by a contracting out provision and by the exception relied upon here, namely, that there was a violation of law committed by the insured with intent to bring about loss or damage. The public policy limitation preserved by this exception is a narrow one and must relate to loss or damage, intentionally brought about, for which the insurer would otherwise have to provide indemnity to its insured. Loss or damage means, of course, actual loss or damage, as distinguished from mere legal injury. Injuria sine damnum is not within the exception to s. 2 aforesaid any more than is damnum sine injuria. The burden is upon the insurer under s. 2, no less than it rests upon it under the exclusionary clause 6 of the policy, to show that there was such loss or damage. In this it

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has failed, and that for the same reasons that disentitled it to rely upon the exclusionary clause 6.

I have already alluded to the trial Judge’s finding that the insured in deliberately raising the lawn mower “knew or ought to have known that this act on his part was a very dangerous one”. In applying this finding, as he did, to the excepting clause in s. 2, the trial Judge exhibited the very fallacy to which I referred in dealing with the exclusionary clause of the policy. The New Brunswick Court of Appeal properly disposed of the matter by pointing out that injuries which arise out of the commission of a criminal act are not, by reason of that fact alone, loss or damage that was intentionally brought about.

In my opinion, the insurer has not brought itself within the exclusion of the policy nor within the exclusion of s. 2, and I would, accordingly, dismiss the appeal with costs.

The judgment of Martland, Judson, Ritchie, Spence, Dickson and de Grandpré JJ. was delivered by

RITCHIE J.—This is an appeal by the Co-operative Fire & Casualty Company from a judgment of the Appeal Division of the Supreme Court of New Brunswick allowing an appeal from a judgment of Mr. Justice Pichette of the Queen’s Bench Division, whereby he had dismissed the claim of the respondent for indemnity under the terms of a policy of insurance issued by the appellant. The circumstances giving rise to this appeal are somewhat extraordinary and it is perforce necessary to recite them at some length.

The respondent, Edmond Saindon, occupied a trailer which was set on a plot of land at Clair, New Brunswick, and in the afternoon of July 22, 1972, he was using a gasoline driven power lawn mower to mow a strip of lawn lying between a fence which enclosed his trailer and a gravel road-

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way on the other side of which was a dwelling house owned and occupied by Armand Sirois. During the course of the afternoon while the respondent was still cutting the lawn, he observed Sirois in the doorway of the garage at the rear of his house and immediately accused him of cutting the cherry tree branches on his property. Sirois replied that he had not done anything of the kind but he inquired of his son who admitted that he had cut off some branches. The father and son returned to the backyard of their property whereupon the respondent suddenly walked across to them, pushing the lawn mower which was still running and when he got to the middle of the roadway separating the properties, he picked up the lawn mower shoulder high and moved across the roadway to the grass by the side of the Sirois dwelling and directed it towards Sirois’ face, at which time the latter says:

…Edmund Saindon was close to me. I was scared. He turned around. I put my hands to try to protect myself and I had my hands cut.

The result of this incident was that the revolving blades of the lawnmower struck both Sirois’ hands, severing the fingers from his left hand and injuring his right wrist. Having caused this damage, Saindon returned with his lawnmower and continued to mow the lawn as he said he only had a little strip to finish. Saindon’s explanation of his extraordinary activities was that he raised the lawnmower into Sirois’ face in order to scare him. Sirois brought an action against Saindon which was tried before Mr. Justice Pichette who awarded him $39,942.40 by way of special and general damages.

Saindon joined the Co-operative Fire and Casualty Company as a third party claiming indemnity under their Comprehensive Personal Liability Policy covering his premises in the Village of Clair.

The indemnity thus provided was described in the following terms in the policy:

COVERAGE A—(1) Comprehensive Personal Liability: To pay on behalf of the Insured all sums which the

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Insured shall become obligated to pay by reason of the liability imposed by law upon the Insured, or the liability of others, assumed by the Insured under any written agreement relating to the premises, for damages, including damages for care and loss of services, because of bodily injury or property damage.

The learned trial judge, in dismissing the claim against the insurer, made the following findings:

In this case, the Defendant admits that the raising by him of the lawnmower in motion in the face of the Plaintiff was a deliberate intentional act… True it is he said he did so to scare the Plaintiff but the fact remains that the Defendant knew or ought to have known that this act on his part was a very dangerous one. In my opinion his conduct was criminal. The proper interpretation of this section of our Insurance Act has always been to the effect that where injuries are caused to a Third Party by a deliberate calculated act, the Assured cannot recover indemnity from his Insurer. On this ground of its Defence, the Third Party is, in my opinion, entitled to succeed.

The provisions of the Insurance Act to which the learned trial judge referred are those contained in s.2 of the Insurance Act, being c.6 of the Acts of New Brunswick 1968, which provides, in part, as follows:

Public Policy Rule

2. Unless the contract otherwise provides, a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity under a contract of insurance except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage; …

One of the exclusions (No. 6) governing the insurance coverage in question, provided that the coverage did not apply “to bodily injury or personal damage caused intentionally by or at the direction of an insured”, and in finding that the insurer was relieved of liability by virtue of this provision, the learned trial judge said:

There can be no doubt in my mind that the Defendant deliberately raised the lawn mower in the face of the

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Defendant. On this third ground the Third Party, is, in my opinion, also entitled to succeed.

In reversing the judgment at trial, Mr. Justice Limerick, speaking on behalf of the Court of Appeal, observed that in his opinion the exclusion above referred to only applied when the personal injury was intended and that it did not apply to the facts of this case, and at the conclusion of his reasons for judgment, after citing s.2 of the Insurance Act, supra, he made the following findings:

As the injury to the Plaintiff was not intentionally inflicted, but was the unforeseen result of a criminal act, the effect of section 2 above is to negate the ‘Public Policy Rule’ and as the insurer in the contract excludes only personal injuries intentionally inflicted and does not exclude injuries otherwise arising out of the commission of a criminal act, the insurer is not relieved of its liability on the ground of public policy.

The finding of the Appeal Division that the respondent had not intentionally inflicted the damage sustained by Sirois is based on its acceptance of the respondent’s evidence to the effect that he had only intended to scare his victim and that the lawnmower tipped exposing the blades as the respondent lifted it up close to Sirois’ face.

The respondent’s action did indeed have the result of “scaring” Sirois to such extent that he raised his hands in an automatic gesture to shield his face. The fact that the lawnmower tipped when put to such an unnatural use was an eminently foreseeable development and one which the respondent ought to have known to be a part of the danger to which he was exposing his neighbour. The immediate cause of Sirois’ injury was a combination of his gesture of self protection and the tipping of the lawnmower but, in my opinion, these two circumstances flowed directly from the respondent’s deliberate act in raising the lawn-mower as he did, which was the dominant cause of the occurrence. I agree with the learned trial judge that this constituted criminal conduct which caused damage and the fact that the “scare” intended by the respondent had more serious

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consequences than he may have anticipated does not alter the fact that it was his threatening gesture which caused the damage. I am accordingly of opinion that the respondent’s actions were in breach of the public policy rule as expressed in s.2 of the New Brunswick Insurance Act.

In the course of the argument before us counsel for the appellant referred to the judgment of the Court of Appeal in England in Gray et al. v. Barr[11] (Prudential Insurance Company Limited, Third Party) which while in no way binding on this Court, nevertheless appears to me to be most apt and persuasive in the circumstances. In that case the appellant, who was covered by an insurance policy with the respondent indemnifying him for all sums which “he shall become legally liable to pay as damages in respect of bodily injuries to any person caused by accident”, had entered a farm house with a loaded shot gun and fired a shot into the ceiling with the intention of frightening the occupant who then grappled with him as a result of which the insured fell down stairs breaking the stock of the gun as he fell and involuntarily firing the second barrel which killed the occupant. The insured’s claim against his insurer was based on the contention that the occupant’s death was accidently caused and in the course of his reasons for judgment Lord Denning, M.R. posed the question in the following terms:

But which of these acts was the cause of the death? Was it the deliberate act of Mr. Barr approaching Mr. Gray with a loaded gun? Or was it the fall and subsequent discharge of the gun? The immediate cause was the second act when the gun was accidentally discharged: but the dominant cause was the first act when Mr. Barr went up the stairs with a loaded gun…

Lord Denning resolved this question in terms of what was the “proximate cause” and adopted what was said by Lord Shaw in Leyland Shipping Co. v. Norwich Union Fire Insurance Society,[12] at p. 369:

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What does ‘proximate’ here mean? To treat proximate as if it was the cause which is proximate in time is… out of the question. The cause which is truly proximate is that which is proximate in efficiency. That efficiency may have been preserved although other causes may meantime have sprung up which have yet not destroyed it, or truly impaired it, and it may culminate in a result of which it still remains the real efficient cause to which the event can be ascribed.

On this quotation Lord Denning commented:

Ever since that case in 1918 it has been settled in insurance law that the ‘cause’ is that which is the effective or dominant cause of the occurrence, or, as it is sometimes put, what is in substance the cause, even though it is more remote in point of time, such cause to be determined by common sense: …

And in the same case the learned Master of the Rolls, dealing with the question of public policy, adopted the following language which had been employed by the learned trial judge:

The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain a claim for indemnity.

I adopt as being particularly pertinent to the circumstances here disclosed the following language employed by Lord Phillimore in the same case at p. 969:

No doubt the word ‘accident’ involves something fortuitous or unexpected, but the mere fact that a wilful and culpable act—which is both reckless and unlawful—has a result which the actor did not intend surely does not, if that result was one which he ought reasonably to have anticipated, entitle him to say that it was an accident.

It is true that in Gray’s case the liability of the insurance company depended on whether or not the fatal shot was fired by “accident” within the meaning of its policy, whereas the liability of the appellant in this case depends on whether the damage sustained by Sirois was “caused intentionally by or at the direction of the insured”, but in

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my view the issue must be determined on the ground that under the circumstances of this case, the intentional act of the respondent in raising the lawnmower as he did was the “cause” of the accident as that word is generally understood in the interpretation of policies of insurance.

As I consider that the language of exclusion 6 in the policy relieves the appellant from liability, the following excerpt from the judgment of Judson J. in Ford Motor Co. of Canada Ltd. v. Prudential Assurance Co. Ltd. et al.[13], has direct application. After reviewing a number of cases, Judson J. said, at p. 545:

The principle to be deduced is no more than this—that liability for the consequences of what the Court holds to be the proximate cause of the loss may be negatived by a properly framed clause of exclusion and it seems to me that if it is found, as a matter of construction, that the causes specified in the clause of exclusion apply, then it is of no significance whether these are referred to as proximate causes or simply causes.

It will be seen that I take the view that the personal damage sustained by Sirois was intentionally caused within the meaning of exclusion No. 6 in the policy and also that the insured’s actions constituted a violation of the criminal law committed by him with intent to bring about loss or damage, although the precise damage was not anticipated.

Having regard to the conclusion which I have reached as to the effect of s. 3 of the Insurance Act and exclusion No. 6 of the policy, I do not find it necessary to deal with the appellant’s denial of liability on the ground that the incident did not occur within the boundaries of the property described in its comprehensive personal liability policy and I make no finding in this regard.

For all these reasons I would allow this appeal, set aside the judgment of the Appeal Division of

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the Supreme Court of New Brunswick and restore the judgment rendered at trial by Mr. Justice Pichette. The appellant will have its costs in this Court and in the Appeal Division.

Appeal allowed with costs, judgment at trial restored, LASKIN C.J. and PIGEON and BEETZ JJ., dissenting.

Solicitors for the appellant: Stewart & Stratton, Moncton.

Solicitors for the respondent Saindon: Rice & Angers, Edmundston.