in the supreme court of british columbia - Clark Wilson LLP

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British Columbia Medical Association v. Aviva Insurance Company of Canada Page 18 utterances or that the defendant had any blameworthy mental state in order to succeed. The Aviva Policies in this regard do not exclude intentional publication. [50] The Insured submit that if they were found liable for every instance of “Unlawful Expression” raised in the Consolidated Claim on the basis that these words were defamatory or disparaging of Dr. Wang, but these words were not published with knowing falsity or with foreknowledge that the publication violated Dr. Wang’s rights, Aviva would be required to indemnify. [51] The Insured submit that even if the court were to find that the Insured were actuated by malice, Dr. Wang’s claims could still result in coverage for indemnity under the Aviva Policies. “Malice” can be established even where the defendants did not know the falsity of their statements, or did not know they were violating the plaintiff’s rights. In Smith v. Cross, 2009 BCCA 529, Madam Justice Kirkpatrick says at para. 34: 2011 BCSC 1399 (CanLII) A defendant is actuated by malice if he or she publishes the comment: i) Knowing it was false; or ii) With reckless indifference whether it is true or false; or iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or iv) For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion. [52] The Insured note that while the Current Pleading contains allegations of breach of contract, the alleged breaches are linked to the damage allegedly suffered because of the defamation. Therefore, the essential character of the claim is one of defamation and disparagement. [53] Counsel cited a number of American decisions in which the pleading of intentional misconduct did not relieve an insurer of the duty to defend where the insured could be found liable without proof of intentional misconduct; in other words, where the plaintiff could succeed without proving intentional misconduct (see Aearo Corporation v. American International Specialty Lines Insurance Company, 2009
British Columbia Medical Association v. Aviva Insurance Company of Canada Page 19 U.S. Dist. LEXIS 117823, 676 F.Supp.2d 738 (S.D. Ind.); Orlando Nightclub Enterprises, Inc. v. James River Insurance Company, 2007 U.S. Dist. LEXIS 88320 (M.D. Fla.); Cincinnati Insurance Company v. Trosch, 2008 U.S. App. LEXIS 5865, 271 Fed. Appx. 205 (3rd Cir.) (applying Pennsylvania law); Park Place Entertainment Corporation v. Transcontinental Insurance Company, 2002 U.S. Dist. LEXIS 18772, 225 F.Supp.2d 406 (S.D.N.Y.); Utica Mutual Insurance Company v. The David Agency Insurance, Inc., 2004 U.S. Dist. LEXIS 12434, 327 F.Supp.2d 922 (N.D. Ill)). [54] Aviva submits that for the purpose of the present analysis, Dr. Wang’s Current Pleading includes clear factual allegations that the Unlawful Expressions were part of a “campaign of vilification and malicious public attacks”, characterized by the Insured’s publications. Dr. Wang alleges that each instance of publication occurred with those responsible acting maliciously, knowing the meanings conveyed were false or not caring if they were, for the dominant purposes of injuring her and destroying her reputation. 2011 BCSC 1399 (CanLII) [55] Aviva argues that the pleadings must be taken as true, that they are quite precise, and that they do not include alternative pleadings as to intent. The gravamen of Dr. Wang’s complaint is that the individual intentional actions to injure her were part of an organized effort to cause her the very harm for which relief is sought. In these regards, the Current Pleading is not materially different than the claims advanced against the Insured in the original Statement of Claim. [56] Aviva does not dispute that an action in defamation may succeed without evidence that the defendant published defamatory words with intention to injure. However, it submits that in this case, Dr. Wang did plead such an intention in clear and explicit terms. She alleges that everything that occurred was part of a purposeful campaign to cause her the very injury for which she is seeking damages. [57] Counsel submits that the Insured’s submission in effect seeks to have the court assume only some of the pleaded facts are true. However, it is submitted that
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