ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-17764
DATE: 2012-10-17

B E T W E E N:

JOEY BOUDREAU, LINA BOUDREAU, JESSICA BOUDREAU AND JUSTIN BOUDREAU

Lou Ferro, for Plaintiff/Respondent

Plaintiffs

• and -

ONTARIO SOCCER ASSOCIATION, HKMB INTERNATIONAL INSURANCE BROKERS LTD. AND CHUBB INSURANCE COMPANY OF CANADA

David E. Liblong, for Applicant, Defendant Chubb Insurance Company of Canada
Karen Chee, for Defendant, Ontario Soccer Association

Defendants

ORDER FOR COSTS

LOFCHIK J.

[ 1 ] On July 31 st , 2012, I released reasons dismissing the plaintiff’s claim against Chubb Insurance Company of Canada (“Chubb”). The claim was for damages in the amount of $6,000,000.00, aggravated damages in the amount of $500,000.00 and damages under the Family Law Act in the amount of $350,000.00.

[ 2 ] Chubb had issued a “blanket insurance policy” to the Ontario Soccer Association (“OSA”), for a policy of insurance affording coverage to OSA members of up to $40,000.00 for quadriplegia resulting from an accident occurring while the insured member was participating in a practice, game, exhibition game, tournament or other activities sanctioned by the OSA.

[ 3 ] The plaintiff was injured while playing soccer rendering him a quadriplegic and Chubb paid him $46,500.00, representing the maximum benefit under the policy.

[ 4 ] The plaintiff alleged in the action that Chubb was liable to him in damages because it issued to the OSA a policy under which the benefits were not adequate to provide for his care when rendered a quadriplegic, even though Chubb had no direct dealings with the plaintiff or the OSA, but rather dealt solely with an insurance broker acting for the OSA and provided a policy based on what the broker indicated the OSA was willing to pay by way of annual premium, and which policy had better benefits than that provided by the previous insurer.

[ 5 ] I am now called upon to deal with the matter of costs of the action against Chubb and the motion for summary judgment.

[ 6 ] This is a case where it is appropriate that costs be awarded in favor of Chubb, the successful party on the motion for summary judgment and in the action, which action had not proceeded past the pleadings stage, and it is also appropriate that I fix the costs as rule 57.01(3) of the Rules of Civil Procedure provides that when a court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.

[ 7 ] The following factors referred to in rule 57.01(1) are relevant to the fixing of costs in this case:

• Reasonable expectation of unsuccessful party

Chubb submits that the motion resulted in a dismissal of the action against Chubb, that a thorough review of the facts and consideration of the case law were required to determine whether to bring the motion and that the amount of costs claimed are not significant in light of the issues involved in the action and the various associated actions. Chubb submits that its costs are not unreasonable and ought to have been expected by opposing counsel.

• The amount claimed and the amount recovered in the proceeding

The amount claimed by the plaintiffs in the statement of claim was $6,000,000.00, plus $500,000.00 in aggravated damages and $350,000.00 in damages pursuant to the Family Law Act .

• The complexity of the proceeding

The proceeding itself was not complex, but the issues that arose in the context of the summary judgment motion warranted significant time and effort by counsel, as is always the case with respect to summary judgment motions. The issues raised in the action against Chubb required significant time and effort by counsel for Chubb in arguing the summary judgment motion. The plaintiff filed a lengthy and prolix factum and three volumes of authorities arguing for a novel duty of care owed by an insurer to a putative client being represented by an experienced commercial broker. The plaintiff also claimed for aggravated damages despite admitting there was no breach of contract. The unusual arguments raised required additional research and effort by counsel for Chubb.

• The importance of the issues

The statement of claim alleged a “novel” cause of action against Chubb which, if successful, would have had far reaching effects on the obligations of all insurers in Canada and the manner in which they conduct business. Success on the motion resulted in complete dismissal of the action against Chubb, which made the argument of the motion of utmost importance to Chubb.

[ 8 ] Counsel for Chubb has submitted a bill of costs totaling $15,191.00 on a partial indemnity basis and $17,965.50 on a substantial indemnity basis, plus $959.19 inclusive of HST for disbursements.

[ 9 ] I see no reason to award costs on a substantial indemnity basis.

[ 10 ] In reviewing the bill of costs on a partial indemnity basis, I find the hourly rates claimed in the bill of costs to be reasonable. However, an award of costs is not merely a calculation of hourly rate times hours spent working on the matter. My task is not to perform a minute, item by item examination of the steps taken and disbursements incurred throughout the litigation, but to determine what the services are worth. Nevertheless, I do have to undertake a critical view of the work done to determine that the costs have been reasonably incurred and reflect what the court considers proper given the complexity of the case.

[ 11 ] Plaintiff’s counsel argues that the bill of costs is excessive and should be in the range of $5,500.00 for counsel fee, which he argues is the usual range for costs on a summary judgment motion in Hamilton. However, each case must proceed on its own facts.

[ 12 ] Given the fact that there was senior counsel together with assistance of junior lawyers working on the file, there appears to be some duplication in effort. In addition, time spent in “analysis, strategy and communications with counsel and client” (11.4 hours in connection with the motion and 7.1 hours in the action), seems excessive.

[ 13 ] Looking at the matter as a whole, I find counsel fee in the amount of $8,500.00 for the motion and $3,000.00 for the action, plus HST to be an appropriate award of costs.

[ 14 ] So far as disbursements are concerned, the claim for “Court Filing Clerk…$100.00” is unexplained and does not seem appropriate. I find that Chubb is entitled to disbursements of $652.19 plus $68.27 HST for a total of $720.46 in connection with the motion and $194.00 in connection with the action, for a total of $846.19 in disbursements inclusive of HST.

[ 15 ] The plaintiff has made a claim for costs, but I cannot see any basis for such an award. The plaintiff’s claim for costs is dismissed.

[ 16 ] In the result, Chubb is entitled to its costs against the plaintiff in the amount of $11,500.00 plus HST for counsel fees, plus $846.19 inclusive of HST for disbursements. Such costs to be payable within 30 days pursuant to rule 57.03(1)(a).

Lofchik J.

Released: October 17, 2012

COURT FILE NO.: 10-17764
DATE: 2012-10-17

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JOEY BOUDREAU, LINA BOUDREAU, JESSICA BOUDREAU AND JUSTIN BOUDREAU Plaintiffs - and – ONTARIO SOCCER ASSOCIATION, HKMB INTERNATIONAL INSURANCE BROKERS LTD. AND CHUBB INSURANCE COMPANY OF CANADA Defendants ORDER FOR COSTS Lofchik J. TRL//dm

Released: October 17, 2012