Hodgkinson v. Economical Mutual, (2003) 180 O.A.C. 177 (CA)

• Judge: Morden, Gillese and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 2003
• Jurisdiction: Ontario
• Citations: (2003), 180 O.A.C. 177 (CA)

Hodgkinson v. Economical Mutual (2003), 180 O.A.C. 177 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. DE.075

Charles Hodgkinson (applicant/appellant in appeal) v. Economical Mutual Insurance Company (respondent/respondent in appeal)

(C39558)

Indexed As: Hodgkinson v. Economical Mutual Insurance Co.

Ontario Court of Appeal

Morden, Gillese and Armstrong, JJ.A.

December 17, 2003.

Summary:

The insured under a homeowner's policy applied for a declaration that the insurer had a duty to defend the insurer in an action in defamation against him.

The Ontario Superior Court, in a decision reported [2003] O.T.C. 35, dismissed the application. The insured appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 6818

Liability insurance - Homeowner's comprehensive policy - Duty of insurer to defend - The insured was sued for defamation - In his statement of defence, the insured admitted having written the words complained of but said that they were true, could not contain any defamatory meaning and were fair comment - The insured invoked his homeowner's policy and wanted the insurer to defend him - The insurer replied that it had no duty to defend the insured because of an exclusion in the policy respecting "bodily injury or property damage caused by any intentional or criminal act" - The Ontario Court of Appeal affirmed that the insurer did not have a duty to defend the insured.

Libel and Slander - Topic 2

General - Strict liability aspect of defamation - The Ontario Court of Appeal discussed the strict liability aspect of defamation - See paragraphs 23 to 28.

Cases Noticed:

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161, consd. [para. 2].

Wilkinson v. Security National Insurance Co. (1999), 249 A.R. 282 (Q.B.), refd to. [para. 16].

Blanchard v. Halifax Insurance Co. (1996), 184 N.B.R.(2d) 271; 469 A.P.R. 271 (T.D.), refd to. [para. 16].

Nichols v. American Home Assurance Co. et al., [1990] 1 S.C.R. 801; 107 N.R. 321; 39 O.A.C. 63, consd. [para. 18].

Elliott v. Freisen et al. (1982), 37 O.R.(2d) 409 (H.C.), affd. (1984), 1 O.A.C. 376; 45 O.R.(2d) 285 (C.A.), leave to appeal refused (1984), 55 N.R. 274; 4 O.A.C. 78 (S.C.C.), refd to. [para. 33].

Authors and Works Noticed:

Brown, C., and Menezes, J., Insurance Law in Canada (4th Ed. 2002), pp. 18-178, 18-179 [para. 12].

Fleming, J.G., The Law of Torts (9th Ed. 1998), pp. 595 to 596, 599 [para. 23]; 596 to 597 [para. 24].

Fridman, G.H.L., The Law of Torts in Canada (2nd Ed. 2002), p. 20 [para. 17].

Gatley on Libel and Slander (9th Ed. 1998), para. 1.5 [para. 33].

Keeton, W.P., et al., Prosser and Keeton on The Law of Torts (5th Ed. 1984), p. 802 [para. 32].

Counsel:

Robert L. Colson and Lai-King Hum, for the appellant;

Pamela M. Stevens, for the respondent.

This appeal was heard on October 21, 2003, by Morden, Gillese and Armstrong, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Morden, J.A., and released on December 17, 2003.