Insurer was not required to defend or indemnify an insured who had been found not criminally responsible

The insurer was not required to defend or indemnify an insured who had been found not criminally responsible in a criminal proceeding in a related civil claim because the insured’s conduct was intentional and the policy’s intentional and criminal act exclusions both applied. 

Insurance law – Homeowner’s insurance – Duty to defend – Exclusions – Criminal acts.

Aviva Insurance Co. of Canada v. Haan, [2025] O.J. No. 2796, Ontario Superior Court of Justice, June 24, 2025, M.R. Gibson J.

In 2018, the insured killed his spouse in their home and then opened a gas line, causing an explosion that destroyed the house and caused extensive damage to neighbouring properties. He was charged with first-degree murder and arson. At a 2023 hearing, he was found Not Criminally Responsible (NCR) after admitting all the underlying facts. He acknowledged that he intended to damage his own home and understood his actions would result in his spouse’s death and the destruction of both his and his neighbours’ homes. However, he was not convicted on the basis that he lacked the capacity to appreciate whether his actions were right or wrong.

Two civil actions were commenced by the insured’s neighbours that plead he intentionally blew up his house and claimed damages for the resulting damage to their homes. Aviva, the homeowner’s insurer, brought an application seeking a declaration that it had no duty to defend or indemnify. The policy provided coverage for liability arising from unintentional bodily injury or property damage, but expressly excluded coverage for criminal or intentional acts. The insured argued that he never intended to damage his neighbours’ homes and therefore should benefit from coverage.

The Court rejected that position and ruled in Aviva’s favour, emphasizing that the policy wording was determinative. Relying on the principles set out by the Ontario Court of Appeal in Tedford v. TD Insurance Meloche Monnex, 2012 ONCA 429, the Court held that the insured could not deny intent after admitting during the NCR proceeding to the essential elements of arson. The Court also reasoned that his acknowledgement that he intended to destroy his own home was sufficient to render him an intentional tortfeasor.

Importantly, the Court reaffirmed that intentional tortfeasors are legally responsible for all resulting damage, even if the extent of the harm exceeded what was intended or reasonably foreseeable. As a result, Aviva had no duty to defend or indemnify the insured in the civil actions.

This case was digested by Aman Taggar and edited by Steven W. Abramson of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact them directly at [email protected] or [email protected].