12/27/2012 04:31 EST | Updated 02/26/2013 05:12 EST

Court says insurance agency doesn't have to pay in B.C. teacher-abuse lawsuit

VICTORIA - A British Columbia Supreme Court judge has ruled an insurance company shouldn't have to pay for the actions of a former Victoria, B.C., school teacher who abused his student.

In 2007, Joseph Dube pleaded guilty to assaulting one of his Grade 1 students.

The allegations against the teacher said that over four months, starting in September 2005, Dube repeatedly yelled, screamed and ridiculed the boy.

The abuse included throwing the boy across the classroom and preventing the child — who had a bowel condition — from going to the washroom.

The boy's family launched a civil claim against the school district and Dube for negligence and damages, claiming they had a duty of care to look after the child's health, safety and emotional well-being during school hours.

The lawsuit, which has yet to be proven in court, alleges the boy is unable to attend public school and still fears teachers.

Dube then asked his insurance agency, BCAA Insurance Corp., for coverage.

But BCAA refused to pay, both for the cost of defending the legal action and any possible damage award against Dube. The corporation said the allegations were based on assault and battery and it would only pay for unintentional bodily injury or property damage.

Dube then asked the court to force BCAA to pay, arguing the claim is for damages for the unintentional acts committed by him.

In a written ruling issued Thursday, Judge Stephen Kelleher said he disagreed with Dube's argument.

"The true nature of the claim are the allegations of assault and of battery."

However, Kelleher also noted in his ruling that if some of the allegations in the civil lawsuit are proven then BCAA may be required to pay some of the damage award against Dube.

Kelleher ruled the allegations in the civil lawsuit fall squarely within the insurance firm's exclusion clause, even though Dube argued the words injury and abuse under the insurance policy were virtually interchangeable.

"I disagree. The terms 'injury' and 'abuse' have distinctly different meanings," the judge concluded, saying that BCAA had no duty to defend Dube.