Is subjective intent relevant for the purposes of a criminal act exclusion clause in a home owner’s policy? The short answer is no.

In McGregor v Wawanesa Mutual Insurance Company, 2025 ABKB 227, the Plaintiff was insured under a home owner’s policy with the Defendant, Wawanesa Insurance. Unbeknownst to Wawanesa, the Plaintiff used his detached garage to make cannabis oil which required butane to heat up the cannabis. The Plaintiff had a visitor over one evening while he was making cannabis oil but a fire started as a result of a cigarette being lit by the Plaintiff near the butane causing injuries to the third-party visitor.

It should be noted that the fire occurred before cannabis was legal to produce in Canada and the Plaintiff plead guilty to all subsequent criminal charges including causing the fire.

The third-party visitor subsequently started a personal injury action against the Plaintiff leading to the Plaintiff seeking a defence and indemnity from Wawanesa under his home insurance policy. Wawanesa initially provided a defence to the Plaintiff pursuant to a reservation of rights. The Plaintiff subsequently started this Action for a declaration of coverage under their policy. The issue was determined by way of a summary trial.

Section 533(2) of the Insurance Act protects an insured’s right to indemnity in cases where a criminal act is committed without the intention to cause the loss or damage. However, it also permits insurers to exclude claims for indemnity for loss caused by any criminal act whether intentional or not as long as it is stated as such in the policy. Thus, the wording of the policy is the first consideration. If the policy is silent, subjective intent is relevant pursuant to section 533(2).

The policy here was clear and unambiguous stating it did not insure bodily injury or property damage caused by any intentional act “or” criminal act. Despite the clear wording of the policy, the Plaintiff argued there was ambiguity in the criminal act exclusion primarily relying on a 2001 New Brunswick Court of Appeal decision, Gambin v O’Donnell, where the New Brunswick Court of Appeal determined that the criminal act exclusion did not apply as the insured in that matter did not intend to injure another person during a hunting trip.

However, Gambin had been considered and rejected by the Alberta Court of King’s Bench before in Wong Estate v Liberty Mutual Insurance Company, 2009 ABQB 324. The Court here chose to follow Wong as well as the 2007 Ontario Court of Appeal decision of R.E. v Wawanesa Mutual Insurance Company which concluded that subjective intent is not relevant for the criminal act exclusion to apply.

Given the clear and unambiguous nature of the policy here and that the Plaintiff admitted his criminal conduct caused the fire, the Court found the criminal act exclusion applied and the Plaintiff’s subjective intent was irrelevant. Accordingly, the Plaintiff was not entitled to coverage under his policy. The Court did not need to consider Wawanesa’s other arguments regarding coverage being voided as a result of a misrepresentation or failure to disclose a material change in risk.