in the supreme court of british columbia - Clark Wilson LLP

British Columbia Medical Association v. Aviva Insurance
Company of Canada Page 2
Introduction
[1] These actions are the result of a coverage dispute between the insurer Aviva
Insurance Company of Canada (“Aviva”), and both the British Columbia Medical
Association (Canadian Medical Association - B.C. Division) (“BCMA” and the plaintiff
in Action No. S110215), and Geoffrey Marsden Appleton, Brian David Brodie,
William John Riddell Cavers, Bradley Allen Fritz, Michael John Golbey,
Nasirmohamed Jetha, Margaret Anne MacDiarmid, John William Mackie, Robin
David Saunders, Mark David Schonfeld, Barry John Turchen, John Michael Morris
Turner, Geraldine Vance and Carole Lynn Williams (the “Individuals” and the
plaintiffs in Action No. S110213). It is common ground that BCMA and the
Individuals (the “Insured”) are insured under several policies issued by Aviva.
2011 BCSC 1399 (CanLII)
[2] The coverage dispute relates to an action brought by Dr. Caroline Wang, a
former member of the BCMA board, against the Insured (the “Underlying Action”). In
the Underlying Action, Dr. Wang alleges that the defendants defamed her on
numerous occasions. The defamatory publications were said to be part of a
“campaign of vilification”, published by the defendants with an intent to injure her and
with knowledge of their falsity.
[3] The relevant insurance provides for coverage for defamation claims, but
excludes coverage for acts of intentional wrongdoing. The Insured have taken the
position that Aviva has a duty to provide a defence for both BCMA and the
Individuals because the Statements of Claim in the underlying action all contain a
pleading of defamation. Hence, they submit that there is a prospect that Dr. Wang
could recover at trial for defamation simpliciter, absent a finding of intentional
wrongdoing by any or all of the defendants.
[4] Aviva has taken the position that because Dr. Wang has alleged that all of the
defamatory publications were published with the intention to harm and with
knowledge that they are false, the claims against the Insured with respect to direct
liability are excluded from coverage. Accordingly, Aviva says there is no duty to
defend the Insured on this basis. Aviva acknowledges the pleading that BCMA is