This was an appeal by an insured from the decision that the insurer had no duty to defend him in an action for defamation under the terms of a homeowner’s policy. The Court of Appeal upheld the reasons of the chambers judge, relying on the “intentional act” exclusion.

Hodgkinson v. Economical Mutual Insurance Co., [2003] O.J. No. 5125, Ontario Court of Appeal

A corporate plaintiff brought an action against the individual insured for posting allegedly defamatory messages about the corporation on an Internet message board. The insured had a standard homeowner’s policy, including coverage for “personal liability” and the duty to defend. The duty to defend provision contained the following:

Under Coverage E [legal liability], we will defend any suit against you alleging bodily injury or property damage and seeking compensatory damages, even if it is groundless, false or fraudulent.

The exclusion provision reads that the insured is not insured for claims arising from bodily injury or property damage caused by any intentional act.

The lower court decided first that the defamation claim was covered by the general property damage provision of the policy, but went on to dismiss the application on the basis that the “intentional act” position was applicable. On the pleadings, the insured submitted that he truthfully expressed his views and the Court held that the allegations were therefore intentional, regardless of whether the views were true or damaging.

The Court of Appeal held that intent did not encompass the issue of “fault”, and did not require that the insured have an implicit intent to injure. Defamation is a “strict liability” tort, in that if a statement is found to be false and injurious, intent to injure is not required. The Court held that because it was not necessary to prove the Defendant’s intent to injure the Plaintiffs in a defamation action, it is the wording of the exception provision itself, “damage caused by any intentional act”, that must be applied. The wording did not exclusively require an intentional tort, and therefore, the act of making the statements, whether they were ultimately held to be defamatory or not, were intentional for the purposes of the exclusion clause.

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