Place Biermans inc. v. C. D., 2013 QCCA 64, 2010 QCCS 4170
On March 7,1999, C. D., aged 15, poured a can of gasoline on the floor of a shed that adjoined a shopping centre. An hour later, he threw a match on it. The resulting fire caused close to $6,000,000 in damage. AXA Insurance Inc. refused to indemnify C. D., who was the son of its insured, raising the exclusion for damage attributable to a criminal act or intentional fault.
C. D. argued that the exclusion did not apply because he had not intentionally set fire to Place Biermans, not having expected the fire to spread to the shopping centre. At worst, he argued, the only foreseeable damage was to the shed.
The Superior Court dismissed the argument, finding that it is not the foreseeability of damage that must be considered when determining whether a fault was intentional, but rather the intentional nature of the act that caused the damage:
“[66] [Translation] The Court is of the opinion that the intent of C…D… to cause damage eliminates the randomness or element of risk which underlies every insurance contract, thereby destroying the insurance contract as of the commission of the wrongful act, a criminal act in this instance, namely when he threw a match on the gasoline that he had spread.”
The Court of Appeal recently affirmed the first instance judgment:
“[3] [Translation] The exclusion that is raised is legal, as stated in Articles 2464 and2402 C.C.Q. Indeed, the commission of a criminal act or intentional fault by the insured adulterates the insurance contract, which is based on the random nature of the insured risk.” [Citations omitted]
Furthermore, the Superior Court found that the facts permitted the conclusion, on the balance of probabilities, that C. D. had committed a criminal act and that malicious intent did not need to be proven. The Court of Appeal affirmed this conclusion:
“[7] [Translation] The exclusion of coverage for the damage attributable to the commission of a criminal act and its consequences applies in this case. For the same line of reasoning, see this Court’s recent decision in Ace-Ina Company v. SSQ, assurances générales, 2012 QCCA585.”
