The Intentional or Criminal Acts Exclusion Applies Despite a Finding of Not Criminally Responsible

July 09, 2025

By Megan Chan

Aviva Insurance v. Haan[1], is another decision that insurers can rely on to support a position that there is no duty to defend a claim for property damage arising out of intentional acts on the part of the insured.

In situations where an insured is found not criminally responsible for the related criminal charges, an insurer is likely (subject to the specific language of the relevant policy) to be able to rely on the intentional or criminal acts exclusion.

Facts

Aviva Insurance Company of Canada (“Aviva”) issued a policy of homeowners’ insurance (“the Policy”) to Mr. and Mrs. Haan for their house, located at 56 Sprucedale Crescent, Kitchener, Ontario (“the Residence”). The Policy included liability insurance coverage for bodily injury or property damage caused by Mr. or Mrs. Haan to third parties.

The Haans were in a relationship for over 40 years, but the relationship deteriorated. Mr. Haan was diagnosed with psychosis, and his deteriorated mental state had caused him to attempt suicide in May 2018.

On August 22, 2018, Mr. Haan strangled and killed Mrs. Haan at the Residence. After killing his wife, Mr. Haan tampered with a gas line in the house with the intention of releasing gas into the house, to blow up the Residence and kill himself.

The explosion of the Residence caused extensive physical damage to Mr. Haan’s neighbours’ homes. The neighbours brought two actions against Mr. Haan for damages framed in negligence and nuisance, for the property damage (“the Underlying Actions”). The pleadings in the Underlying Actions specifically pleaded that Mr. Haan intentionally blew up the Residence. Mr. Haan in turn sought coverage for these third-party claims under the Policy.

Mr. Haan was charged with multiple offences under the Criminal Code of Canada relating to the murder of his wife, the arson of the Residence, and the resulting damage to his neighbours’ homes.[2] In the context of the criminal hearing, Mr. Haan was interviewed by two forensic psychiatrists (Dr. Levin and Dr. Woodside). Mr. Haan was ultimately found not criminally responsible (“NCR”) at the hearing of these charges. Even though Mr. Haan was capable of appreciating the nature and quality of the acts and knew what he was doing at the time of the loss, he was NCR because he lacked the capacity to rationally decide whether the act was right or wrong.

The Application and Issue

Aviva brought an Application for a determination that Aviva had no duty to defend or indemnify Mr. Haan under a policy of homeowners’ liability insurance issued to him in regards to the Underlying Actions.

A couple of the plaintiffs in the Underlying Actions argued as interveners that Aviva had a duty to defend and indemnify Mr. Haan on the basis that the consequences of Mr. Haan’s actions were non-intentional.

Analysis

Did Mr. Haan’s actions fall within the grant of coverage under the Policy?

The relevant insuring agreement of the Policy read as follows:

This is the part of the policy you look to for protection if you are sued. We will pay all sums which you become legally liable to pay as compensatory damages because of unintentional bodily injury or property damage arising out of:

1. your personal actions anywhere in the world;

2. your ownership, use or occupancy of the premises defined in Section II.

(emphasis added)

Accordingly, coverage might be available for an insured under the Policy if compensatory damages were being sought for unintentional bodily injury or property damage.

The Court found that the underlying Actions commenced by the neighbouring homeowners clearly sought compensatory damages for property damage.

Thus, the key question was whether the property damage was caused unintentionally.

At Mr. Haan’s NCR hearing, he admitted the following:

  • that his acts were intentional, in that he was aware, at the time of committing the acts, that the damage that ultimately occurred to the Residence was intended and expected; and
  • that his acts were criminal.

Mr. Haan swore an affidavit in response to Aviva’s Application. When he was cross-examined on same, Mr. Haan acknowledged the following:

  • he reviewed and agreed with the Agreed Statement of Facts entered at his criminal trial;
  • he admitted to the facts underlying all of the charges that he was facing, including all charges relating to intentionally or recklessly damaging his neighbours’ homes;
  • he admitted to Dr. Levin and Dr. Woodside that he opened the gas valve in the house to make sure that the house would fill up with gas so he could ignite it, and that he waited in the garage to make sure he would die in the explosion, as well as that he poured gasoline on his wife’s body and used a lighter to ignite it;
  • Mr. Haan was found NCR on all charges and did not appeal from that finding.

The Court found that, based on the admissions made by Mr. Haan, and the applicable principles of law, that Mr. Haan’s actions were intentional, and thus, the claims in the Underlying Action did not fall within the grant of coverage.

In coming to this conclusion, the Court found support in the 2022 Ontario Superior Court decision, Butterfield v. Intact Insurance Company[3](upheld on appeal[4]). In Butterfield, the Court addressed a coverage application where the insured, Mr. Butterfield, sought coverage pursuant to his homeowners’ policy with Intact Insurance in response to an action brought against him for personal injuries suffered by the plaintiff, Mr. Carr, resulting from a knife attack by Mr. Butterfield during a psychotic episode, in which Mr. Butterfield held the honest but deluded belief that he was defending himself and his family, from Mr. Carr. The Court found that Intact had no duty to defend Mr. Butterfield on the basis that a finding of NCR rendered the acts of Mr. Butterfield both intentional and criminal.

In Butterfield, the Court noted that a determination on the NCR issue cannot be made until the Crown has proven the case beyond a reasonable doubt.[5] In other words, both the actus reus and the mens rea of the offence must have been established before an NCR finding is made.

In the present case, the Court further explained that a criminal conviction is not required for an act to constitute a criminal offence, and that a finding of NCR means that while the accused individual will be exempt from a criminal conviction, the elements of the offence establishing a criminal act were made out. Accordingly, the Court found that the finding of NCR negated Mr. Haan’s argument about intentionality.

Mr. Haan had both 1) admitted to the elements of the offence of arson – damage to property, which represented an admission that he a) committed the acts that caused damage to the neighbouring properties and b) that he had the necessary intent to do so, as well as 2) admitted to two forensic psychiatrists, who then found that Mr. Haan was capable of understanding the nature and quality of his acts and that he knew his actions were likely to or intended to cause the death of his wife and for his home to explode.

Did the Policy’s criminal or intentional act exclusion apply to exclude coverage?

The exclusion read as follows:

We do not insure claims arising from: …

6. Resulting from an intentional or criminal act or failure to act by:

a. any person insured by this policy; …

(emphasis added)

The Court confirmed that an insurer only needs to prove that an insured’s act was either intentional or criminal for the exclusion to apply.

Nevertheless, the Court found that, for the same reasons as above, that Mr. Haan’s acts were both intentional and criminal. 

Can Mr. Haan obtain coverage on the basis that he did not intend to inflict damage on neighbouring homes?

The Court rejected the argument that he did not intend to damage neighbouring properties when he intentionally blew up his own house for two reasons.

First, Mr. Haan admitted at his NCR hearing to the elements of the offence of intentionally or recklessly causing damage to his neighbours’ houses. The Court stated that Mr. Haan was bound by this admission.

Second, Mr. Haan admitted that he was aware that his acts would cause the destruction of his own house. The Court turned to the 1975 Supreme Court of Canada decision, Sirois v. Saindon[6]for support in this regard. In Sirois, the Court found that the fact that conduct caused more serious consequences than the insured anticipated did not change that the insured’s intentional conduct caused the damage.[7]

Conclusion

Ultimately, the Court declared that Aviva had no duty to defend or indemnify Mr. Haan with respect to the Underlying Actions.

The Court found that the property damage was caused intentionally by Mr. Haan. Accordingly, there was no possibility that the claim would fall within the grant of coverage under the Policy. Further, even if the claim fell within the grant of coverage, the Criminal or Intentional Act exclusion applied as Mr. Haan’s arson of the Residence was both an intentional act and a criminal act.

[1] 2025 ONSC 3762.

[2] Mr. Haan was charged with first degree murder of Mrs. Haan, intentionally or recklessly causing damage by fire or explosion to a dwelling house (the Residence), and intentionally or recklessly causing damage by fire or explosion to a dwelling house (the neighbour properties), contrary to sections 235.1, 433(1), and 434 of the Criminal Code of Canada respectively.

[3] 2022 ONSC 4060.

[4] Butterfield v. Intact Insurance Company, 2023 ONCA 246.

[5] R. v. Tshiamala, 2022 ONSC 422 at paras 34 and 46.

[6] 1975 CanLII 180.

[7] At para 24.