If after school specials are to be believed, a bully is a neighbourhood tough demanding lunch money. In our ever changing society this antiquated notion no longer holds sway: bullying has moved from the lunch room into the online world. With this shift, the definition of bullying has become somewhat amorphous. Now, not only does bullying not have to involve physical violence, it can also be done unintentionally. As the definition of bullying becomes more nuanced, it poses unexpected coverage issues for insurers and policyholders alike.

Intentional v. Unintentional Bullying

Although there is no universally accepted definition of bullying, most definitions include an element of intent. For instance, in AB v Bragg Communications Inc., the Supreme Court of Canada adopted the definition of bullying from the Report of the Nova Scotia Task Force on Bullying and Cyberbullying that was created as a result of a series of youth suicides. The definition read:

… behavior that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress, or other forms of harm to another person’s body, feelings, self-esteem, reputation or property. Bullying can be direct or indirect, and can take place by written, verbal, physical, or electronic means, or any other form of expression.¹

Likewise, Public Safety Canada defines bullying as “acts of intentional harm, repeated over-time, in a relationship where an imbalance of power exists.² The RCMP’s Centre for Youth Crime Prevention also maintains that bullying occurs when “there is an imbalance of power and where someone purposely and repeatedly says or does hurtful things to someone else.”³

In contrast, the Ontario Anti-Bullying Act that is currently working its way through the  Legislature takes a slightly different approach to the definition of bullying. Section 2(1) states:

“bullying” means the severe or repeated use by one or more pupils of a written, verbal, electronic or other form of expression, a physical act or gesture or any combination of them if it is directed at another pupil and if it has the effect of or is reasonably intended to have the effect of,

(a) causing physical or emotional harm to the other pupil or damage to the other pupil’s property,
(b) placing the other pupil in reasonable fear of harm to himself or herself or damage to his or her property,
(c) creating a hostile environment at school for the other pupil,
(d) infringing on the legal rights of the other pupil at school, or
(e)  materially and substantially disrupting the education process or the orderly operation of a school; (“intimidation”).⁴

Although intent is included in this definition, the Act also considers it bullying if the effects of an individual’s actions cause harm. This seems to imply that an individual’s actions or comments that unintentionally cause harm to another could be considered bullying.

So, is there really such a thing as unintentional bullying?

According to the Cyberbullying Research Center, there is. Unintentional bullying, also known as accidental bullying, can best be described as incidents where individuals say things to others, through various electronic communications or in person, that are not intended to be hurtful, but are experienced as such.⁵ Katie Greer, former Director of Internet Safety for the Massachusetts Attorney General’s Office and Intelligence Analyst for the Massachusetts State Police, explained accidental cyberbullying in this way: “Oftentimes, kids described trying to be nice or positive to one friend or cause via various social networking sites, and unintentionally hurting someone’s feelings, or leaving someone out in the process.”⁶ For instance, friends of a teen girl set up an online profile where people were asked to comment/vote for the prettiest girl among four shown. The idea was to show their friend that she was very pretty, so the profile creators voted for her so that she would emerge victorious. However, they did not realize that by doing so the other three girls’ feelings were hurt.⁷

This type of bullying does not only occur between children or teens. It can also occur among adults in professional settings. For instance, Clinical Psychologist, Keryl Egan, defines accidental bullying in the workplace as follows:

Accidental bullying includes insensitive, aggressive and demanding behaviours, which have as their aim some ‘higher good’ such as … reaching high standards, beating the competition or the financial survival of the company. … they regard tough, insensitive and driven behaviour as normal in a pressured workplace. The health and well-being of others is … secondary to primary business goals. Such people are often shocked when they are made aware of the consequences of their attitudes and actions.⁸

While these kinds of behaviour may seem like innocent fun, they have the potential to cause real harm or damage.

Coverage Issues

With the highly publicized incidents of teen suicides as a result of bullying and cyberbullying – including the cases of Amanda Todd and Rehtaeh Parsons – civil actions against bullies for damages are becoming more probable. With that, insurers run the risk of exposing themselves to having to indemnify their insureds for this kind of behaviour. This is especially true in the context of homeowners’ insurance policies (“policies”).

The vast majority of policies in Canada provide third party liability coverage to their named insured, their spouses, their relatives, and individuals under the age of 21 living in the same household. This coverage will be provided where an insured’s actions cause “unintentional bodily injury or property damage.”⁹ The term “bodily injury” also includes psychological injury.¹⁰

These policies will typically exclude coverage for “any intentional act, criminal act or the failure to act” committed by any person insured by the policy.¹¹ Committing sexual, physical, psychological, or emotion abuse, molestation or harassment will also be excluded from coverage.¹² Thus, it is safe to say that an insurer will not likely be on the hook to defend an action on behalf of its insured where he or she intentionally bullied another.

Some policies take it one step further and exclude coverage for the failure of any individual insured by the policy to take steps to prevent abuse or harassment.¹³ While the act of abuse or harassment may have an obvious element of intent, the failure to act does not. This raises the question of whether the negligent or accidental failure of preventing abuse or harassment will be excluded from coverage. In Unifund Assurance Company v D.E., the Ontario Court of Appeal held that the insurer did not have a duty to defend or indemnify its insureds for negligently failing to control their eight year old daughter from bullying and harassing another student at her school.¹⁴ The Court found that since the exclusion begins with the word failure, which is at the very core of the definition of negligence, negligently failing to prevent abuse or harassment will be excluded from coverage.¹⁵

In contrast, insurers have been required to provide coverage to parents of minors who commit intentional or criminal acts in negligent supervision cases. For instance, in Belair Direct v Shoup, a minor plaintiff was shot with a pellet gun by another minor named Jon. The Plaintiff subsequently brought an action against Jon and his parents for damages. Jon’s parents’ insurer (Belair) denied coverage for all three defendants on the basis of the exclusion for intentional acts or criminal activity and brought an application for a declaration that the denial was sound in law.¹⁶ On application, the Ontario Superior Court of Justice held that Belair did not have a duty to defend Jon in the main action as his actions fell well within the exclusion. However, Belair was obliged under the terms of the policy to defend the claims brought against Jon’s parents as their actions, or lack thereof, did not fall within the exclusion.¹⁷ Similarly, in Durham District School Board v Grodesky, the Ontario Court of Appeal held that the insurer had a duty to defend the parents against a claim for negligent supervision where their child set fire to his High School’s recycling bins.¹⁸

An insurer may also be required to provide coverage to its insured who is sued for unintentional bullying as there is no exclusion for unintentional acts that cause harm. That is in fact, exactly what third party coverage was intended to cover.

Thus, in deciding whether to provide coverage, the question then becomes, how can insurers determine whether an act is intentional or unintentional?

This will likely depend on the context of the incident that gave rise to the harm and the relationship of the parties.¹⁹ Unintentional bullying may include behaviour that is thoughtless; insensitive; and lacks ongoing empathy with the needs and feelings of others; and where the individual does not thrive on the pain of others but rather he or she is unaware of it, where the individual is shocked at the bullying behaviour of others without being able to recognize his or her own bullying behaviours, and where the individual apologizes without really appreciating the discomfort caused.²⁰ In contrast, it is likely intentional bullying where there was a deliberate expression of personal power; there was naked aggression; the individual was careless of the consequences; the individual thrived on the misery and pain of the other person, and the individual deliberately created an atmosphere of fear.²¹

As our forms of communication become more sophisticated, it may be more difficult to decipher what is intentional and what is unintentional bullying. As a result, insurers should consider conducting a thorough analysis of the circumstances surrounding the incident before they decide to deny coverage.

Conclusion

In summary, bullying has been defined as both intentional and unintentional. Consequently, insurance coverage may be triggered in civil actions where the plaintiff claims damages for bullying or behaviour that closely resembles bullying. This of course will depend on the type of behaviour that caused the harm. While a claim for intentional bullying, or behaviour that resembles intentional bullying will likely be excluded from coverage, it is likely that a claim for unintentional bullying or similar behaviour will trigger the insurer’s duty to defend its insured. This exposes insurance companies to a different character of risks, especially with the growing concern for bullying and cyberbullying in Canada.

1. AB v Bragg Communications Inc., [2012] 2 SCR at para 21; citing the Respectful and Responsible Relationships: There’s NO App for That:
2. The Report of the Nova Scotia Task Force on Bullying and CyberBullying (2012) at p 42-43.
3. Public Safety Canada, “Bullying Prevention: Nature and Extent of Bullying in Canada,”
4. Royal Canadian Mounted Police, “Bullying and Cyberbullying”
5. Bill 14, Anti-Bully Act, 2012 at s 2(1)
6. Justin W. Patchin, “Can Someone be an Unintentional Bully?”
7. Sue Scheff, “Accidental Bullying and Cyberbullying,” (2013); also cited in Samer Hinduja and Justin W. Patchin, Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying 2d ed (Thousand Oaks California: Corwin, a SAGE Company, 2015) at p 14.
   Ibid
8. Egan Keryl, “Bullying: Know Thy Enemy” recorded address of presentation to Unions NSW Workshop, Handling Bullying Complaints the
9. Easy Way, Sydney 18 March, Red Tape, 2005 April / May.; cited in Diane J. Kelly, “Workplace bullying – A Complex Issue Needing IR/
10. HRM Research?” (2006) in Pocock, B, Provis, C and Willis, E (eds), 21st Century Work: Proceedings of the 20th Conference of the Association of Industrial Relations Academics of Australia and New Zealand, University of South Australia, February 2006, 274-284.
11. AVIVIA Canada, Comprehensive Homeowners Policy,
12. T.W. v. K.R.J.W., 1996 CanLII 8005 (ON SC); similar principle cited in Aerts et al. v. Olson et al., 1999 CanLII 18720.
13. AVIVA, supra note 9 at Section II – Coverage E 6.
14. Ibid, at 10(a).
15. Ibid, at 10(b).
16. Unifund Assurance Company v D.E., 2015 ONCA 423.
17. Ibid, at 25.
18. Belair Direct v Shoup et al., 2012 ONSC 4652, 112 OR (3d) 314; additional reasons in 2012 CarswellOnt 17105.
    Ibid, at para 17.
19. Durham District School Board v Grodesky, 2012 ONCA 270.
20. Patchin, supra note 5.
21. Downsell Primary School, Anti-Bullying Policy: Appendix 1 Intentional and Unintentional Bullying, online: http://www.downsellprimary.org/downsellabpolicyappend1%20intentional%20and%20unintentional%20bullying[1].pdf.
    Ibid.