in the supreme court of british columbia - Clark Wilson LLP

More documents

Recommendations

Info

British Columbia Medical Association v. Aviva Insurance Company of Canada Page 22 possibility that some or all of the damages sustained were caused by negligence with respect to the collision. [64] The Court concluded that there was a duty to defend, rejecting the submission that the negligence claim was purely derivative. The Court considered the possible outcomes at trial in the course of its analysis at para. 29: Having said all this, I am not convinced that, in a case such as this, a plaintiff could not claim that Mr. Morrison intentionally caused the collision in an attempt to stop the Dedam vehicle from leaving his property or, in the alternative, that he caused the injuries by driving his vehicle in a negligent manner. It is arguable, in my view, that the two torts involve different acts or conduct based upon Mr. Morrison's state of mind, one being an intentional tort and the other a non-intentional tort. The Statement of Claim would obviously contain a claim potentially within coverage. At trial, the claim based upon the intentional tort could fail and the negligence claim succeed. This is different from the allegations in Scalera where it was alleged in the Statement of Claim that the defendant had caused damages to the plaintiff by engaging in non-consensual sexual intercourse. In that case, the negligence claim was not legally viable because on the facts as alleged, there was no possibility that a claim within coverage could succeed. That is so because "[e]ither there was consensual sexual intercourse, in which case the claim would be dismissed, or there was non-consensual intercourse, in which case the claim in battery would succeed." In the latter case, the claim would not be within the coverage provided by the policy (see G. Hilliker, Liability Insurance Law in Canada, 3d ed. (Toronto: Butterworths, 2001), at pp. 69-71). 2011 BCSC 1399 (CanLII) [65] In the present case, addressing the first stage of the Scalera analysis, it is clear that Dr. Wang has properly pleaded a claim of defamation with respect to the Unlawful Expressions. Dr. Wang has alleged that the Unlawful Expressions formed a part of the Individuals’ campaign of overt vilification and that all of the defendants published the Unlawful Expressions with knowledge of their falsity or with reckless indifference to their truth, for the dominant purpose of inflicting injury upon Dr. Wang and or destroying her reputation. It is clear that if the latter allegations were to be made out at trial, the claims would fall outside of coverage. In the alternative, Dr. Wang also advances a claim of malicious falsehood, which if made out at trial, would also fall outside of the coverage. [66] Are the defamation claims derivative? In Scalera, Mr. Justice Iacobucci concluded that the allegation of breach of fiduciary duty was derivative since there was nothing to suggest that the breach was anything but intentional and the harm
British Columbia Medical Association v. Aviva Insurance Company of Canada Page 23 caused was identical to that of the sexual battery. He concluded that the plea of negligent misrepresentation was “entirely subservient’ to the sexual battery. At para. 85 he stated that: A claim should only be treated as "derivative", for the purposes of this analysis, if it is an ostensibly separate claim which nonetheless is clearly inseparable from a claim of intentional tort. [67] In the present case it cannot be said that the plea of defamation is in any way subservient to the allegations of intentional misconduct. Rather, those allegations can be seen as aggravating factors with respect to the defamation. Further, it is clear that the elements of the defamation claim do not require proof of conduct that proves intent to injure. Accordingly, the allegations, while related, are in my view sufficiently disparate such that it cannot be said that the defamation is derivative. If the allegations of intent to injure and knowing publication of falsehood are removed, sufficient facts remain to support a pleading of defamation (for further examples of these principles, see Unrau v. Canadian Northern Shield Insurance Co., 2004 BCCA 585 and Rocky Mountain House (Town of) v. Alberta Municipal Insurance Exchange, 2007 ABQB 548 at paras 68-75). 2011 BCSC 1399 (CanLII) [68] A plaintiff alleging defamation does not have to establish that the defendant had any level of knowledge or blameworthy mental state. Here, the policy exclusions address such blameworthy mental states but do not exclude publications that were made intentionally; in the sense that the defendant meant to state the words used and did not publish by accident. Nor does the coverage expressly exclude situations in which malice is alleged. [69] Aviva has taken the position that because the allegations relate to a purposeful campaign to intentionally injure Dr. Wang, they are wholly removed from the bona fide objects and activities of BCMA and therefore do not fall within the coverage provided in the Aviva Polices. However, the pleadings present the possibility of defamations in the absence of knowing violation, knowledge of falsity or other form of intentional misconduct that would take the Insured’s conduct out of the “business of BCMA”.
Page 1 and 2: IN THE SUPREME COURT OF BRITISH COL
Page 3 and 4: British Columbia Medical Associatio
Page 21: British Columbia Medical Associatio
Page 29: British Columbia Medical Associatio

in the supreme court of british columbia - Clark Wilson LLP

Create successful ePaper yourself

Delete template?

Save as template?