Court of Appeal Decision of the Week

Personal Injury; Insurance; Future Loss of Income; Survival of Actions

The Estate of Caroline J. Higgins v. Arseneau, 2014 NBCA 65

Keywords: Loss of Income, Survival of Actions, Entitlement

Summary: Is loss of income a person could have earned had he or she not died, an “actual pecuniary loss” to the deceased person or the estate? In the NBCA, within the meaning of s. 5(1) of the N.B. Survival of Actions Act (continued in 6(1) of the current version of the Act) says no, and is therefore not recoverable by the estate in an action enabled by that very Act.

The decision engages with the jurisprudence emanating from other Canadian appellate courts, the U.K., and the U.S., regarding entitlement to such damages under survival of actions statutes.

Decision came down on Nov. 6, 2014 (decision from the bench on June 16, 2014, reasons to follow—herewith the reasons).

Makes me think back to my first year law school Delicts class (Scottish version of Torts) in Edinburgh, in 1972, whereby the prof (likely said every year—but we were youngsters) queried whether it was cheaper to kill someone than to seriously injure them.

Some quotes in the Judgment (written by Chief Justice Drapeau, with whom Justice Larlee and Justice Deschênes concurred):

“At common law, an action for personal injuries did not survive the death of the injured party. Happily, that rule no longer avails in its absolute form in most, if not all, Canadian common law jurisdictions as a result of survival of actions statutes. In this province, the modern version of the legislation, at least insofar as recovery of damages for pecuniary loss is concerned, conforms in all material respects to the recommendations put forward in the 1960s by the Conference of Commissioners on Uniformity of Legislation in Canada. The substantive issue for consideration here, one of first impression for this Court, is whether the recovery-enabling provision of the statute in question allows the fatally injured party’s estate to recover damages for the loss of income he or she could have earned had death not occurred.

…Briefly stated, my view is this. The legislative context, both immediate and general, compels rejection of the expansive interpretation of the phrase “actual pecuniary loss” adopted in Duncan Estate v. Baddeley. It is so because that interpretation is disharmonious with and makes redundant the word “actual”, which means “existing in fact”, and brings about a result at odds with the Legislature’s stated intention at the time of s. 5(1)’s adoption.

…I am not without knowing the narrower interpretation of the phrase “actual pecuniary loss” will occasionally limit the wrongdoer’s liability to relatively insignificant pecuniary damages, as may be the case here. That is the policy choice the Legislature made in the exercise of its sovereign authority over such matters, and all judges are duty bound to give effect to constitutionally valid legislation. Needless to say, no judge is entitled to disregard legislation solely because it reflects what he or she views as an insufficiently claimant-friendly public policy. Importantly, the object of s. 5(1) is compensatory, not punitive.

… judges are duty-bound to give effect to constitutionally valid legislation and no judge has the power to disregard legislation solely because it reflects a policy that he or she finds objectionable.

It is for the reasons fleshed out in the preceding text that I joined my colleagues in dismissing the appeal immediately after hearing the parties. In abridged form … (1) the “loss” of the income a person could have earned had he or she not died is not an “actual pecuniary loss” within the meaning of s. 5(1), the recovery-enabling provision of the Survival of Actions Act; (2) the opposite view is disharmonious with and makes redundant the word “actual”, which means “existing in fact” and is the opposite of “possible” and “contingent”; and (3) the opposite view, if accepted, would bring about a result at odds with the Legislature’s stated intention at the time of s. 5(1)’s adoption, which was to exclude recovery of damages for “loss of expectancy of earnings subsequent to death”. In the result, the appellant estate may not recover damages for that “loss” during the “lost years” pursuant to the Survival of Actions Act.”

(paras. 1, 6-7, 49, 68 respectively).

For the Appellant: George McAllister Q.C. (McAllister, George, Fredericton)

For the Respondent: David O’Brien Q.C. and Patrick Dunn (Cox & Palmer, Saint John)

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Posted: Wednesday, November 26, 2014