A former student of Upper Canada College commenced an action against four teachers alleging sexual assault. In addition, the student alleged that each of the teachers knew or ought to have known that the Plaintiff was being abused by the other teachers, and that each of the teachers failed to take any adequate steps to prevent or stop that abuse. The teachers named in the Statement of Claim applied for a declaration to have the allegations made against them defended pursuant to Upper Canada College’s policy of insurance. The court determined that despite a section in the policy which excluded coverage for bodily injury caused intentionally by or at the direction of the insured, the allegations of failing to take any adequate steps to prevent or stop the sexual abuse of the student constituted an independent tort, and the teachers were entitled to coverage under Upper Canada College’s policy of insurance to defend the allegations made against them. However, given the nature of the excluded allegations the insurer was only responsible for 20% of the teacher’s defence costs.

Sommerfield v. Lombard Insurance Group, [2005] O.J. No. 1131, Ontario Superior Court of Justice

Four teachers (the “Teachers”) were all employed at Upper Canada College (“UCC”) from 1986 to 1990. A former student of UCC issued a Statement of Claim against the Teachers and UCC. He claimed $15 million in compensatory damages for alleged sexual assault during the years 1986 to 1990 at UCC. The Plaintiff alleged sexual battery against the Teachers, and also pleaded that the Teachers were professionally negligent for not reporting the sexual assaults of the other teachers to UCC. The Statement of Claim stated that each of the Teachers knew, or ought to have known, that the Plaintiff had been sexually abused by the other Teachers and each of the Teachers failed to take any adequate steps to prevent or stop the abuse.

UCC and the Teachers were insured under a policy of insurance issued by Lombard Insurance Group (“Lombard Policy”). The Teachers applied under the Lombard Policy to have the allegations made against them defended pursuant to the policy of insurance. Lombard refused to provide coverage, and the Teachers commenced this action against Lombard for a declaration that Lombard was required to defend the allegations made against them under the Lombard Policy.

The trial judge noted that the Lombard Policy stipulates that the insurer shall defend on behalf of the insured at its cost any civil action which may be brought against the insured for bodily injury or property damage. However, the exclusion section of the policy provides that bodily injury caused intentionally by or at the direction of the insured was not covered. In reviewing the pleadings, the Court noted that the Teachers are alleged to have independently and repeatedly sexually abused the Plaintiff. The judge further noted that if the Plaintiff had pleaded that each teacher was negligent in not reporting their own abuse of the student, it would not be a proper pleading. However, the student pleaded negligence in the failure of each teacher to report the abuse of the other Teachers to the authorities. The allegations in the Statement of Claim indicate that the Teachers, independent of each other, committed the intentional tort of sexual battery. There is no allegation that the Teachers acted in concert or jointly participated in the tortious behaviour. Therefore, each teacher must be viewed as a separate party. Counsel for Lombard noted that if one of the teachers had been sued solely for professional negligence in failing to report the sexual abuse by the other teachers, Lombard would have a duty to defend that teacher. Based on this reasoning, the trial judge determined that the claim of negligence or failing to report the allegations of sexual abuse were a separate and distinct cause of action and not a derivative claim of the intentional tort of sexual battery. Therefore, the Lombard Policy imposed an obligation on behalf of Lombard to defend those claims on behalf of the Teachers.

In Daher v. Economical Mutual Insurance Company (1996), 31 O.R. (3d) 472 (C.A.), the Ontario Court of Appeal noted that it generally was not practical to split the cost of defending an action prior to the trial. In this situation, the trial judge determined that to require Lombard to pay for the entire defence of the Teachers would be unfair. The causes of action in the case at bar were not simply multiple theories of a single cause of action, but two separate distinct causes of action; the first being the intentional tort of sexual battery; and the second being negligence based on an admission or failure to report sexual abuse. Therefore, the court determined that it would be possible to separate the defence of the claims, and ordered Lombard to pay 20% of the cost of the Teachers’ defence of the entire action.

To stay current with the new case law and emerging legal issues in this area, subscribe here.