Wilful, reckless and uninsurable?

Was it wilful? Was it misconduct? The recent Canadian Supreme Court Decision in Peracomo Inc and Others v TELUS Communications Co and Others (The Realice) restores order on the limitation issue: the Supreme Court reversed the Court of Appeal’s decision to break limitation on the basis that Mr Vallée had not had the requisite intent to cause the damage that resulted (“recklessly and with knowledge that such loss would probably result”).

In that part, the decision is probably uncontroversial – it has proven notoriously difficult to break the limitation. More interesting is the discussion of section 53(2)(a) of the Marine Insurance Act 1993 ¹, where the majority of four held that the conduct had not amounted to wilful misconduct, but one of the judges dissented.