232 Kennedy Street v. King Ins. (2009), 236 Man.R.(2d) 147 (CA);
448 W.A.C. 147
MLB headnote and full text
Temp. Cite: [2009] Man.R.(2d) TBEd. FE.035
232 Kennedy Street Ltd. (plaintiff/respondent) v. King Insurance Brokers (2002) Ltd. (defendant/appellant) and The Wawanesa Mutual Insurance Company and ING Canada Inc. (defendants)
(AI 08-30-06868)
232 Kennedy Street Ltd. (plaintiff/appellant) v. King Insurance Brokers (2002) Ltd. (defendant/respondent) and The Wawanesa Mutual Insurance Company and ING Canada Inc. (defendants)
(AI 08-30-06869)
(2009 MBCA 22)
Indexed As: 232 Kennedy Street Ltd. v. King Insurance Brokers (2002) Ltd. et al.
Manitoba Court of Appeal
Scott, C.J.M., Hamilton and Chartier, JJ.A.
February 20, 2009.
Summary:
The plaintiff corporation was incorporated by members of a law firm that practised from a building owned by the plaintiff. A fire destroyed the building. The plaintiff had placed insurance with the defendant insurance broker. The policy, which provided actual cash value coverage, did not cover the replacement value of the plaintiff’s loss. The plaintiff sued in contract and tort for damages arising from the defendant’s failure to provide the plaintiff with replacement cost coverage. The plaintiff did not retain independent counsel. It was represented at the trial by one of its officers, who was a lawyer with the law firm.
The Manitoba Court of Queen’s Bench, in a decision reported at 222 Man.R.(2d) 73, found the defendant liable in both contract and tort and awarded damages to the plaintiff. The defendant appealed. The plaintiff appealed from the court’s failure to address post-judgment interest and from the court’s denial of costs to the plaintiff.
The Manitoba Court of Appeal dismissed the defendant’s appeal and the plaintiff’s appeal with respect to post-judgment interest. The court allowed the plaintiff’s appeal with respect to costs and referred the matter of costs back to the trial judge for reconsideration.
Insurance – Topic 634
Brokers – Relations with client – Duty to obtain coverage requested – A fire destroyed the plaintiff’s building – The plaintiff had placed insurance with the defendant insurance broker – The policy, which provided actual cash value coverage, did not cover the replacement value of the plaintiff’s loss – The plaintiff sued in contract and tort for damages arising from the defendant’s failure to provide it with replacement cost coverage – The trial judge found the defendant liable in both contract and tort and awarded damages to the plaintiff – The defendant appealed, arguing that the trial judge erred when he found liability based on the plaintiff’s implied request for replacement cost coverage because the statement of claim alleged only a breach of an express request for replacement cost coverage – The Manitoba Court of Appeal dismissed the appeal – The trial judge did make a finding of an express request – The defendant did not allege that the trial judge made any palpable and overriding errors – The finding of an express request was a full answer to the defendant’s appeal – See paragraph 12.
Practice – Topic 6986
Costs – Entitlement – Bars – Litigant acting on own behalf or through agent – The Manitoba Court of Appeal held that “Given the many purposes served by an award of costs, I am of the view that there is no principled reason to deny self-represented litigants costs solely because they are self-represented. … In the end, the awarding of costs for all litigants remains in the judge’s discretion” – See paragraph 34.
Practice – Topic 6986
Costs – Entitlement – Bars – Litigant acting on own behalf or through agent – The Manitoba Court of Appeal stated that “I agree with Sharpe, J.A., in Fong that ‘[t]he self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case’ … Thus, opportunity cost should not include this time and effort. However, I do not agree with him that costs can only be awarded if a self-represented litigant has ‘incurred an opportunity cost by forgoing remunerative activity’ … Rather, I agree with Beard, J.’s conclusion, in Kuny that opportunity cost is not a condition precedent. While opportunity cost may often be the crucial consideration in the assessment of costs for a self-represented litigant, it remains just one factor to consider. I am also of the view that it should be the rare occasion when lost opportunity causes an award of costs to come close to what would otherwise be the applicable tariff if counsel were involved. … While care should be taken to ensure that a foundation has been laid by a self-represented litigant for a claim of lost opportunity, care should also be taken to avoid ‘trials about costs’ … Because a trial judge (or motions judge) is uniquely placed to assess the relevant factors, the preferable approach in most cases will call for the judge to make an omnibus award. Obviously a claim for costs on a motion will demand less scrutiny than a claim for costs for a trial” – See paragraph 12.
Practice – Topic 6986
Costs – Entitlement – Bars – Litigant acting on own behalf or through agent – The plaintiff corporation was incorporated by members of a law firm that practised from a building owned by the plaintiff – A fire destroyed the building – The plaintiff had placed insurance with the defendant insurance broker – The plaintiff sued in contract and tort for damages arising from the defendant’s failure to provide it with replacement cost coverage – The plaintiff did not retain independent counsel – It was represented at the trial by one of its officers, who was a lawyer with the law firm – The trial judge found the defendant liable in both contract and tort and awarded damages to the plaintiff – In addressing the plaintiff’s claim for costs, the trial judge stated that “The plaintiff chose to identify itself as self-represented. Although represented by competent counsel from within the corporation, the plaintiff’s claim to costs is denied” – The plaintiff appealed from the denial of costs – The Manitoba Court of Appeal stated that “As I am of the view that the jurisprudence no longer supports denying a successful party an award of costs simply because that party is self-represented, the judge erred in principle when he denied costs to the plaintiff for this reason” – The court referred the matter of costs back to the trial judge for reconsideration – See paragraph 24.
Practice – Topic 7006
Costs – Party and party costs – General principles and definitions – Purpose of party and party costs – The Manitoba Court of Appeal stated that “in no particular order of importance, the purposes served by an award of party and party costs are as follows: to indemnify the successful litigant, on a partial basis, for legal costs incurred or, in the case of a self-represented litigant, for lost opportunity; to encourage settlements by having all litigants, whether represented or not, address the issue of costs; to discourage and sanction frivolous actions or defences, unnecessary steps in litigation and inappropriate behaviour by ensuring that all litigants, whether represented or not, have recourse to, or are subject to, an award of costs; and to facilitate access to justice” – See paragraph 35.
Practice – Topic 7050
Costs – Party and party costs – Entitlement to party and party costs – Successful party not represented by counsel – [See all
Practice – Topic 6986
].
Practice – Topic 9012
Appeals – Restrictions on argument on appeal – Issues or points not previously raised – The plaintiff was awarded judgment against the defendant at trial – The plaintiff appealed from the trial judge’s failure to address post-judgment interest in his reasons – The Manitoba Court of Appeal dismissed the plaintiff’s appeal with respect to post-judgment interest for the reason that such interest was not put in issue before the trial judge – The court stated that “It was not sought in the statement of claim (recognizing that s. 85 of the [Court of Queen’s Bench] Act states that it need not be), it was not specifically dealt with at trial, nor did the parties address it in their submissions. In our view, this silence on the issue explains why the judge did not refer to it. We saw no error by the judge that should attract the attention of the court” – See paragraph 13.
Cases Noticed:
Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 14].
Manitoba Keewatinowi Okimakanak Inc. v. McIvor (2007), 220 Man.R.(2d) 240; 407 W.A.C. 240; 2007 MBCA 134, refd to. [para. 14].
Kuny v. Beamish (2003), 172 Man.R.(2d) 28; 2003 MBQB 47, consd. [para. 16].
Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 122 D.L.R.(4th) 330 (C.A.), consd. [para. 16].
Fong et al. v. Chan et al. (1999), 128 O.A.C. 2; 46 O.R.(3d) 330 (C.A.), consd. [para. 16].
V.A.H. v. Lynch et al., [2001] 6 W.W.R. 441; 277 A.R. 104; 242 W.A.C. 104; 91 Alta. L.R.(3d) 1; 2001 ABCA 37, refd to. [para. 16].
Dechant v. Law Society of Alberta, [2001] 5 W.W.R. 448; 277 A.R. 333; 242 W.A.C. 333; 2001 ABCA 81, consd. [para. 16].
Kendall v. Hunt (No. 2) (1979), 16 B.C.L.R. 295 (C.A.), refd to. [para. 26].
1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757 (C.A.), refd to. [para. 31].
Turner v. Minister of National Revenue, [2003] 3 C.T.C. 250; 303 N.R. 192; 2003 FCA 173, refd to. [para. 32].
McNichol v. Co-operators General Insurance Co. (2006), 298 N.B.R.(2d) 44; 775 A.P.R. 44; 37 C.C.L.I.(4th) 1; 2006 NBCA 54, refd to. [para. 32].
Kilrich Industries Ltd. v. Halotier (2008), 261 B.C.A.C. 301; 440 W.A.C. 301; 56 C.P.C.(6th) 214; 2008 YKCA 4, refd to. [para. 32].
British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 32].
Morrison v. Pantony (Rod) Professional Corp. (2008), 433 A.R. 236; 429 W.A.C. 236; 2008 ABCA 261, refd to. [para. 38].
Counsel:
A.R. Nelson, for King Insurance Brokers (2002) Ltd.;
G.A. McKinnon and S.R. Paul, for 232 Kennedy Street Ltd.
These appeals were heard on October 15, 2008, before Scott, C.J.M., Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Hamilton, J.A., on February 20, 2009.
