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Boudreau v. Bank of Montreal et al., 2012; Ontario Court of Appeal; leave to appeal to SCC denied

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Rogers Communications Inc. Umbro Inc., Nike Inc. and State Farm Insurance Co.

On April 5, 2013 the Ontario Court of Appeal released an important precedent for corporations which act as sponsors for charitable and not-for-profit organizations and activities. The decision restricts the potential legal exposure of corporate sponsors by confirming that a corporate sponsor, which does not play any role in the organization of the sponsored activity, owes no duty of care to the individual participants. The plaintiff, Boudreau, was a member of the Ontario Soccer Association (OSA). Rogers, Umbro and Bank of Montreal (BMO) were corporate sponsors of OSA. The corporate sponsors provided funds or goods/services to OSA in return for the opportunity to advertise and promote their respective brands to the membership of OSA. During an indoor soccer game, Boudreau collided with another player, and landed on his head, resulting in a spinal cord injury. OSA had acquired a policy of accident insurance for its members. Pursuant to OSA’s accident insurance policy, Boudreau received a maximum payment for his spinal cord injury of $40,000. Boudreau alleged that this amount was woefully inadequate. Boudreau sued Rogers, Umbro and BMO, alleging that as corporate sponsors, they owed a duty of care to Boudreau to make enquiries of OSA regarding the level of accident insurance that it was providing to its members, and to ensure that the amount of insurance was adequate. In conjunction with BMO, Fasken Martineau brought a motion on behalf of Rogers and Umbro for an order striking out the Statement of Claim and dismissing this action on the basis that it raised no reasonable cause of action known at law. The motion was heard at first instance on June 12, 2012. The motion judge reserved his decision. By reasons dated July 31, 2012, the motion judge allowed the motion and ordered that the Statement of Claim be struck out and the action dismissed. The motion judge agreed with the submissions that the existing case law (in Canada, U.K., U.S. and Australia) did not recognize a duty of care owed by a corporate sponsor to an individual participant in a sponsored activity where the corporate sponsor played no organizational role in the activity. The motion judge also agreed that numerous public policy grounds militated against creating a new duty of care category for this type of scenario. The plaintiff appealed the motion judge’s decision. The appeal was heard by the Ontario Court of Appeal on March 27, 2013. The Court of Appeal released its decision on April 5, 2013. The Court of Appeal unanimously dismissed the plaintiff’s appeal. Similar to the motion judge, the Court of Appeal agreed that the state of the law and the policy analysis which militates against the finding of a duty of care on the part of the corporate sponsors in these circumstances. The plaintiff’s subsequent application for leave to appeal to the Supreme Court of Canada was dismissed.



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