Court of Appeal for Ontario

Citation: Boudreau v. Bank of Montreal, 2013 ONCA 211

Date: 2013-04-05

Docket: C55980

Before: MacFarland, Watt and Pepall JJ.A.

Between

Joey Boudreau

Plaintiff (Appellant)

and

Bank of Montreal, Rogers Communications Inc., Nike Inc., Umbro Inc., TDL Group Corporation, State Farm Insurance, Bick Financial Ltd., Dan Lawrie Insurance Brokers Ltd., Michael Lamont, AON Inc., and Hamilton Tiger Cats Football Club Inc.

Defendants (Respondents)

Counsel:

Jane Poproski, for the appellant

Irving Marks and Dominique Michaud, for the respondent, Bank of Montreal

Peter J. Pliszka and Andrew M. Baerg, for the respondents, Rogers Communications Inc. and Umbro Inc.

Heard: March 27, 2013

On appeal from the judgment of Justice Thomas R. Lofchik of the Superior Court of Justice, dated July 31, 2012.

ENDORSEMENT

[1] The appellant was injured during a soccer game and rendered a paraplegic. The soccer game was organized by the Ontario Soccer Association (“OSA”), and took place at the Soccerworld facility in Hamilton. The OSA had obtained insurance for its members, however its coverage for the appellant’s injuries was limited to $40,000.

[2] The appellant commenced numerous lawsuits against many defendants, including the OSA, Soccerworld, players and referees.

[3] The appellant also commenced an action against the corporate sponsors of the OSA, namely, the respondents Bank of Montreal, Umbro Inc., and Rogers Communications Inc. The OSA is not a party to that action. The statement of claim alleged that the OSA carried inadequate accident insurance for the soccer players; that it was foreseeable to the corporate sponsors that a player would get hurt; and that the corporate sponsors had a legal duty to the appellant to inquire into the adequacy of insurance coverage for the players or, if they did inquire, to ensure that adequate insurance coverage was available. The appellant pleaded that the respondents extensively and publicly identify themselves as corporate partners of OSA and are major financial OSA sponsors.

[4] The respondents moved to strike the statement of claim on the basis that it did not disclose a reasonable cause of action. The motion judge agreed that the claim as against the corporate sponsors should be struck out. He found that the facts pleaded did not establish a relationship of sufficient proximity between the appellant and the respondents to ground a duty of care or to support the appellant’s claim in negligence.

[5] The appellant appeals that order. Counsel argues that the OSA had a close partnership relationship with the respondents capable of grounding a legal duty to OSA’s members and, as such, the pleading should not have been struck out.

[6] The motion judge analyzed the statement of claim, applied the correct test, and considered the relevant case law. He was alive to the partnership issue as pleaded. He correctly concluded that a duty of care as alleged had not been recognized before in Canadian law. Nor had an analogous duty been recognized. Furthermore, the motion judge found that the appellant had not pleaded the facts necessary to establish a relationship of sufficient proximity between the appellant and the respondents to ground a new duty of care.

[7] We see no error in the motion judge’s decision. The pleading is bald. It discloses no relationship between the appellant and the corporate sponsor respondents, apart from the one that normally exists between a commercial corporation and its target market. Although the statement of claim refers to the respondents’ presence on the Soccerworld field and related OSA and Soccerworld websites, the only example provided is the respondents’ posting of advertisements in the “physical or cyber space under the authority and occupation of the OSA and Soccerworld.”

[8] Indeed, the pleading discloses no organizational role played by the respondents in operating the league or the specific game in which the appellant was injured, apart from their status as sponsors; no possession, control or responsibility by the respondents for the Soccerworld facility; and no role played by the respondents in overseeing or selecting insurance coverage for the appellant. Further, there are no facts pleaded in support of any reliance by the appellant on any of the respondents, and no assertion that it was in the reasonable contemplation of the respondents that the appellant was relying on them to ensure that his accident insurance was adequate.

[9] Apart from other policy reasons that might be available to negate any finding of proximity, we would note that the appellant has a cause of action against those with direct involvement in the incident.

[10] The appeal is dismissed.

[11] The appellant shall pay the respondents’ costs fixed in the amount of $12,500 inclusive of disbursements and applicable taxes.

“J. MacFarland J.A.”

“David Watt J.A.”

“S. E. Pepall J.A.”