Date: 20071002
Docket: T-753-05
Citation: 2007 FC 1004
BETWEEN:
PATSY
ANN WILCOX
Plaintiff
and
THE OWNERS AND ALL OTHERS
INTERESTED
IN THE SHIP "MISS MEGAN"
and GARY ROSS HANLEY
Defendants
REPORT ON REFERENCE
(pursuant to Rule 161 of the Federal
Courts Rules)
LAFRENIÈRE
P.
[1]
The
following is an assessment of damages following a reference in a wrongful death
action brought pursuant to the Marine Liability Act, 2001 c.6 (the Act).
[2]
John
Wilcox (the deceased) drowned in a tragic boating accident at sea on May 8,
2004 off the waters of Back Bay, Charlotte County, in the Province of
New Brunswick.
The deceased had worked two days on shore preparing the boat Miss Megan
for the upcoming lobster fishery. On the third day, he set out with the crew on
the fishing boat for the first day of fishing. As the boat left harbour that
day with a full load, it began taking on water and, after about thirty minutes
at sea, the Miss Megan sank. The deceased, who could not swim, drowned,
despite the rescue efforts of those around him. He was 63 years old at the time
of his death.
[3]
Patsy
Ann Wilcox, the deceased’s widow, commenced an action on behalf of the deceased’s estate for
damages against Gary Ross Hanley, the owner of the Miss Megan, alleging
that the vessel was unseaworthy and that Mr. Hanley had negligently navigated
the vessel. As executor of the estate and nominal Plaintiff, Mrs. Wilcox sought
damages for loss of guidance, care and companionship on behalf of herself, the
couple’s three adult children, Thomas Wilcox, Tammy-Lynn Wilcox-Doiron (Tammy
Wilcox), and Tina Marie Wilcox, the deceased’s brother, David Leslie Wilcox,
and his sister, Mary Eileen Wilcox, who are collectively referred to in these
reasons as “the dependants” or “the claimants”. Separate claims for loss of
financial support and loss of valuable services were advanced on behalf of Mrs.
Wilcox and Tina Wilcox.
[4]
Mr.
Hanley admitted liability for the deceased’s death, but took issue with the claims
for various heads of damages. Madam Justice Danièle Tremblay-Lamer granted the
Plaintiff’s motion for summary judgment against the Defendants based on
Hanley’s admission of liability. She ordered that a hearing be held before a
referee in order to determine the quantum of damages that the dependants were
entitled to for their loss resulting from his death.
[5]
I
will first deal with a preliminary issue raised by the Defendants regarding the
eligibility of the deceased’s siblings to seek damages, then address the pecuniary
losses suffered by Mrs. Wilcox and Tina Wilcox , and conclude with an
assessment of the claimants’ loss of care, guidance and companionship.
(A) Dependants
under s. 6 of the Act
[6]
The
claimants maintain that they have suffered loss as a result of the deceased’s
death, and that they are entitled to recover damages as dependants pursuant to section
6 of the Act.
[7]
Subsections
6(2) and (3) read as follows:
|
6. (2) If a person dies by the fault or neglect of another
under circumstances that would have entitled the person, if not deceased, to
recover damages, the dependants of the deceased person may maintain an action
in a court of competent jurisdiction for their loss resulting from the death
against the person from whom the deceased person would have been entitled to
recover.
(3) The damages recoverable by a dependant of an injured
or deceased person may include
(a) an amount to compensate for the loss of guidance, care
and companionship that the dependant could reasonably have expected to
receive from the injured or deceased person if the injury or death had not
occurred;
|
6. (2)
Lorsqu’une personne décède par suite de la faute ou de la négligence d’autrui
dans des circonstances qui, si le décès n’en était pas résulté, lui auraient
donné le droit de réclamer des dommages-intérêts, les personnes à sa charge
peuvent saisir le tribunal compétent d’une telle réclamation.
(3) Les dommages-intérêts recouvrables
par une personne à charge peuvent comprendre :
a) une indemnité compensatoire pour la
perte des conseils, des soins et de la compagnie auxquels la personne à
charge aurait été en droit de s’attendre de la personne blessée ou décédée,
n’eût été les blessures ou le décès
|
[8]
Section
4 of the Act lists the individuals who claim as dependants.
|
In this Part, “dependant”, in relation to an injured or
deceased person, means an individual who was one of the following in relation
to the injured or deceased person at the time the cause of action arose, in
the case of an injured person, or at the time of death, in the case of a
deceased person:
(a) a son, daughter, stepson, stepdaughter, grandson,
granddaughter, adopted son or daughter, or an individual for whom the injured
or deceased person stood in the place of a parent;
(b) a spouse, or an individual who was cohabiting with the
injured or deceased person in a conjugal relationship having so cohabited for
a period of at least one year; or
(c) a brother, sister, father, mother, grandfather,
grandmother, stepfather, stepmother, adoptive father or mother, or an
individual who stood in the place of a parent.
|
Dans la présente partie, « personne à
charge », à l’égard d’une personne blessée ou décédée, s’entend de toute
personne qui, au moment où le fait générateur du litige s’est produit, dans
le cas de la personne blessée, ou au moment du décès, dans le cas de la
personne décédée, était :
a) le fils, la fille, le beau-fils ou la
belle-fille, le petit-fils, la petite-fille, le fils adoptif ou la fille
adoptive de la personne blessée ou décédée ou toute autre personne à qui
cette dernière tenait lieu de parent;
b) l’époux de la personne blessée ou
décédée, ou la personne qui cohabitait avec cette dernière dans une relation
de nature conjugale depuis au moins un an;
c) le frère, la soeur, le père, la mère,
le grand-père, la grand-mère, le beau-père ou la belle-mère, le père adoptif
ou la mère adoptive de la personne blessée ou décédée, ou toute autre
personne qui tenait lieu de parent à cette dernière
|
[9]
The
Defendants submit that the deceased’s brother and sister do not fall within the
definition of “dependants” since they were not “individuals who stood in the
place of a parent” to the deceased. Relying on the associated words rule of
statutory interpretation, they maintain that the addition of the words “or an
individual who stood in the place of a parent” implies that the individuals specifically
listed in paragraph 4(c) must have stood in the place of a parent to the deceased
in order to qualify as a “dependant” under the Act. I disagree.
[10]
It
is well settled that words contained in a statute are to be given their
ordinary meaning. Other principles of statutory interpretation, including the
associated words rule, or noscitur a sociis, only come into play where
the words sought to be defined are ambiguous (R. v. McCraw, [1991] 3
S.C.R. 72 at 80).
[11]
The
associated words rule was defined by Martin J.A. in R. v. Goulis (1981),
32 O.R. (2d) 55 (C.A.):
When two or more words which
are susceptible of analogous meanings are coupled together they are understood
to be used in their cognate sense. They take their colour from each other, the
meaning of the more general being restricted to a sense analogous to the less
general.
As stated by Ruth Sullivan in Sullivan and Driedger on
the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at
p. 173, the rule should be relied on only to resolve ambiguity or to limit the
scope of the terms.
[12]
There
is simply no ambiguity in paragraph 4(c). Persons who stood in the place of a
parent are a separate class of individuals set out in paragraph 4(c) of the Act
who might qualify as a dependant. This interpretation is consistent with the
French version of the provision which refers to “toute autre personne”, that
is, any other individual who does not fit within the class of family members
listed.
[13]
Having
found that the deceased’s siblings are entitled to claim damages as dependants,
I now turn to the damages suffered by Mrs. Wilcox and Tina Wilcox for loss of
financial support and loss of valuable services.
(B) Pecuniary damages
(i) Introduction
[14]
The financial
loss suffered by a dependant, such as financial support and loss of valuable services,
must be measured by what they would have received from the deceased within a
reasonable degree of probability if he or she had survived. To determine the
extent of the loss caused by the premature death of the deceased, all
circumstances and probabilities which bear upon that loss must be considered,
including the age and general state of health of the deceased and the dependants,
the deceased's personality and character, his or her habits and customs, and
the relationship that existed between the deceased and the dependants.
[15]
The Plaintiff
introduced
in evidence an actuarial report prepared by an actuary, Jessie Shaw Gmeiner
(Gmeiner). The
purpose of report was to place a lump sum dollar value on the financial loss
sustained by the Wilcox family as a result of the deceased’s death. The report
presents results on the basis of various assumptions, however the use of
multipliers readily permits alternate calculations assuming any annual level or
duration of future loss.
[16]
The
Defendants did not seriously challenge the methodology used by Ms. Gmeiner in
preparing her report. They took issue, however, with six critical assumptions that
were used in calculating damages, which they say are not supported by the
evidence.
[17]
First,
the Defendants say that although the deceased had declared an average total
annual income of $25,000 in the three years before his death, there is no
evidence to show that he would have continued to earn such an income in the
future. According to the Defendants, the deceased’s total annual income would
have been, at best, $7,000 had the accident not occurred.
[18]
Second,
the Defendants dispute that the deceased would have worked until age 70. They
maintain that his medical condition would have prevented him from working past
65 years of age.
[19]
Third,
they disagree that the deceased’s life expectancy would have been an additional
13.89 years, as determined by Ms. Gmeiner. According to their Defendants’
expert, his life expectancy was no more than 8 years based on his poor state of
health.
[20]
Fourth,
the
Defendants take issue with the assumption that Tina Wilcox, the disabled
daughter, would not die within his life expectancy. The expert medical opinion
they obtained concludes that her life expectancy was only three years.
[21]
Fifth, the Defendants maintain that the extent
of the valuable services performed by the deceased for his family is
exaggerated. They submit in particular that damages for loss of valuable
services should be significantly discounted taking into account the assistance
provided to Tina Wilcox by trained professionals hired and paid by the
provincial government.
[22]
Sixth,
the Defendants submit that Mrs. Wilcox’s income increased significantly in
2005, and that, as a result, she has suffered no loss of financial support.
[23]
I
now turn to the evidence adduced by the parties, focussing mainly on the
contentious issues identified by the Defendants.
(ii) Facts relating to pecuniary
loss claim
[24]
Eight
witnesses were called by the Plaintiff. All of the claimants, with the
exception of Tina Wilcox, testified about their relationship with the deceased,
and the loss they suffered as a result of his death. Ms. Gmeiner gave expert
evidence regarding the methodology she used in preparing her actuarial report, the
information she relied on, and the assumptions she made. In support of the
assumptions outlined in the report, the Plaintiff called Dr. Kenneth Melvin, a
medical practitioner and clinical cardiologist, and Dr. Brian Craig, a family
physician, to opine about the state of health and life expectancies of the
deceased and Tina Wilcox at the time of the accident.
[25]
The
Defendants called four witnesses in response: Janene Hickman, a social worker
with the New Brunswick Department of Family and Community Services; Shirley
Beaudry, a home care attendant; Samuel LeBreton, an economist with Service
Canada, and Dr. Andrew Ian Maugham Armstrong, a medical doctor and expert in
the area of mortality in the insurance field.
[26]
With
the exception of the expert opinion of Dr. Armstrong, which was substantially
at odds with those of the Plaintiff’s three experts, the facts adduced by the
parties proved to be not particularly contentious. The credibility was not an
issued since the witnesses testified in a frank, candid and forthright manner,
and none were prone to exaggeration. I have set out below a summary of the relevant
facts distilled from the documents introduced on consent of the parties and the
testimony of witnesses, followed by my findings on the six key issues
identified by the Defendants.
[27]
At
the time of his death, the deceased was survived by his widow of 37 years,
Patsy Ann Wilcox, his daughters Tina Wilcox and Tammy-Lynn Wilcox-Doiron, his
son Thomas Wilcox, his sister Mary Wilcox, and his brother David Wilcox.
[28]
Mrs.
Wilcox first met the deceased in 1966 and married him in 1967. Until the
deceased’s untimely death, they maintained a stable and loving relationship
while raising three children together. Their relationship is described, in a
nutshell, as follows by Mrs. Wilcox: “[W]e just did what we needed to do. We
did it together […] We loved one another and we just worked together to – to
keep the family together and keep our children brought up with a sense of right
and wrong and a sense of hard work.”
[29]
The
deceased quit school at grade 7 and was continuously employed throughout his
adult life. The breadwinner of the family, he did mostly labour or construction
work, and picked blueberries during blueberry season. Although the deceased and
Mrs. Wilcox struggled to get by on his modest income, they prided themselves in
providing all the necessities of life to their family. Mrs. Wilcox testified
that the deceased was “always working at something” and was not prone to sit
back and put his feet up.
[30]
In
2003, the deceased worked for Hawkins Blueberry Farms and for Acadian Seaplants
(Acadian). He decided to leave Acadian because he did not feel safe driving a
tractor. However, he immediately landed on his feet and found work as a labourer
for Hanley on the Miss Megan, for which he would be paid $100.00 per
day. In the three years before his death, the deceased’s annual income was relatively
stable, averaging approximately $25,760.
[31]
Mrs.
Wilcox was a real estate agent at the time of the accident. Her income varied
widely from 2001 to 2004. In 2001, she reported a loss of $2,319. In 2002, her
income rose to $7639, but dropped to $16 in 2003. In 2004, the year of the
deceased’s accident, she declared $2,699 as income. In order to make ends meet
after her husband’s death, Mrs. Wilcox started working at Home Hardware on a
part-time basis at $7.00 per hour. She also works part-time earning $8.50 per
hour as on office manager for Complete Care Treatment Centre, a business owned
by her daughter Tammy Wilcox. Her total income in 2005 was $16,784.
[32]
In
2006, Mrs. Wilcox started receiving an Old Age Security supplement of $1,000.17
and a Canada Pension Plan survivor’s monthly benefit of $394.88. She earned
employment income totalling $14,700 and gross real estate commissions of
$3,500, from which expenses would be deducted.
[33]
The
deceased played an active part in the household, cutting the lawn, cleaning the
basement, and performing general duties around the house. He was also kept
occupied assisting in the care of Tina Wilcox, his eldest daughter. Tina Wilcox
was born on May 5, 1969, and is profoundly disabled, the result of radiation
therapy she received as a young child upon discovery of a brain tumour. She has
always lived at home, and remained wholly dependent on her parents. She
requires 24 hour care by a person with First Aid training. In particular, she
needs help with feeding (as she chokes very easily), with putting on her leg
brace and shoes, and with denture maintenance.
[34]
The
deceased would regularly take Tina Wilcox to school and doctor’s appointments
and assist her around the house, especially at night or when getting dressed.
They took part in activities together that gave her great joy. Often, in the
evening, the deceased and Tina Wilcox would go for a drive together and stop
for ice cream.
[35]
By
all accounts, the emotional bond between father and daughter was very close. Despite
her age, she was daddy's little girl. By all accounts, her demeanour changed considerably
after the death of her father. She became more reserved with her family members
and now takes less pleasure in activities she would normally have done with her
father.
[36]
The
Wilcox family benefited from assistance for Tina Wilcox provided by the
provincial Department of Family and Community Services. Ms. Hickman, departmental
manager of in-home services, testified that before and after a stroke in 2000,
Tina Wilcox had been provided with the services of a social worker for 40 hours
a week. This service was provided free of charge by the Department.
[37]
Ms.
Beaudry, a former employee of Vocational Plus, and directly responsible for
Tina Wilcox’s care, provided further evidence as to the services that Tina
Wilcox received. She would sometimes pick up her from the school and take her
home where they would undertake some activities, such as speech exercises. Ms.
Beaudry would also prepare her meals, bathe her, and put her to bed, when
necessary. This support continued after the death of the deceased until August
2006 when Ms. Beaudry ceased assisting Tina Wilcox for personal reasons.
[38]
At
the time of the accident, the deceased was slightly obese, had high blood
pressure, and had been treated for what had been diagnosed as chronic
obstructive pulmonary disease (COPD). The deceased had smoked cigarettes for
42 years until he stopped in 1999 on his doctor’s advice. In 2002 and 2003, the
deceased complained of chest pain to his doctor.
[39]
Dr.
Kenneth Melvin, a medical practitioner and clinical cardiologist in Toronto, provided
his expert opinion regarding the presence, absence or severity of COPD and the
deceased’s anticipated life expectancy based on a review of his medical
records. Dr. Melvin’s concluded that the deceased had only mild to moderate
atherosclerosis, consistent with a man of his age. This diagnosis was
consistent with the deceased’s obesity and hypertension, conditions which his
family doctor, Dr. Craig, was adequately monitoring.
[40]
Based on the observations of Dr. Craig and the
autopsy report, Dr. Melvin concluded that there was no indication in the
deceased’s health profile that his life expectancy would be significantly
different than that of a typical average Canadian male living in New Brunswick.
[41]
Dr. Melvin opined that, on a balance of probabilities,
the deceased would not have had an excessive risk of coronary heart disease
(CHD) mortality based on the favourable comparison with his peer group in
relative risk. According to Dr. Melvin, the deceased had, at maximum, a
calculated 27% 10-year risk of CHD mortality, based on the Framingham risk scores. Dr. Melvin
described the risk of CHD mortality as low to average, which is what one
might expect for a man who had mild to moderate disease proven by autopsy.
[42]
Dr.
Craig has practised family medicine in Saint John, New Brunswick since 1984.
He provided expert evidence regarding his medical diagnosis and the prognosis
of both the deceased and Tina Wilcox, who he started treating in 1990. He
testified that the deceased’s health was quite reasonable for a 63 year old
man. Although there were a number of ongoing issues with the deceased’s health,
Dr. Craig was monitoring these issues and working closely with him to address
specific problems if and when they arose. By way of example, on the advice of
Dr. Craig, the deceased ceased smoking in 2001.
[43]
Dr.
Craig’s made notations of “COPD” and “SOBOE” during some of the deceased’s clinical
visits. Dr. Craig indicated that these notes were in reference to the deceased’s
complaints of shortness of breath on exertion and a clinical diagnosis of COPD.
In cross-examination, counsel for the Defendants suggested that these notes
indicated that there were serious concerns with the deceased’s health. However,
Dr. Craig did not agree with this characterization and noted that there were no
significant concerns, and where there were concerns, they were being
appropriately monitored and treated. As it turned out, an inhaler was all that
was required to address the deceased’s breathing concerns.
[44]
Overall,
Dr. Craig was satisfied that the deceased’s health had improved over the
previous years. He noted that the deceased’s weight, which had increased as a
result of having ceased smoking, as well as his hypertension, normal for a man
of his age, would require further monitoring. The post mortem report confirmed
that the deceased was only suffering from mild to moderate coronary
atherosclerosis and mild hypertensive disease with concentric left ventricular
hypertrophy, consistent with a man of his age.
[45]
Tina
Wilcox’s medical history is a long one. At age two, she was diagnosed with a
cancerous brain tumour and treated with cobalt therapy radiation. At the time
of her treatment, the consequences of cobalt therapy were unknown, but it was
later discovered that the treatment can result in calcium deposits. The
treatment, designed to destroy the cancerous cells, also destroyed the
surrounding healthy cells. Given its location, the tumour also affected her
pituitary and hormone producing glands, affecting her growth and cognitive function.
[46]
Tina
Wilcox also suffered from hydrocephalus, a consequence of some swelling in her
brain and the swelling of the ventricle cavities inside her brain. This has
required the installation, and replacement, of ventriculoperitoneal shunts to
control the swelling.
[47]
In
2000, Tina Wilcox suffered a severe stroke. Dr. Craig’s was of the opinion that
she substantially recovered, however she still requires substantial assistance
from those around her. She lost the feeling in her throat such that she is
unable to ascertain when she has swallowed food. This has resulted in a number
of choking episodes. Mobility and daily activities also require a great deal of
assistance. The stroke has affected her balance and she must now wear a brace
and an elevated shoe which she cannot put on without help. Without the brace, she
needs help to move around and even with the brace, she needs the assistance of
someone when outside. She also requires assistance in the bathroom.
[48]
Despite
these difficulties, Tina Wilcox has defied the odds and thrived. She is given
an independent role in the household by her family, and is an active
participant at Vocational Plus, a school she attends daily which is designed
for disabled adults. Dr. Craig specifically noted that her drive is extremely
strong, aided not only by the responsibilities her family requires of her, but
also because of her personal determination.
[49]
Dr.
Andrew Armstrong, a family practitioner from Toronto, testified at
the request of the Defendants. Over the last 30 years, Dr. Armstrong worked
part-time in the field of Life Insurance Medicine, involving the assessment of
mortality in insurance applicants.
[50]
From
a review of the notes of Dr. Craig, Dr. Armstrong concluded that the deceased
had gained considerable weight, and was developing shortness of breath and
chest pain, none of which had been investigated. He further noted the deceased
had untreated hypertension. In his report, he concluded that, if the deceased
had survived, he would have 8 years of life remaining at the time of his death.
[51]
Dr.
Armstrong concluded that Tina Wilcox had an overall life expectancy of 3 years
based on what he viewed as significant neurological disorder, significant
atherosclerotic vascular disease, an ischemic stroke in 2000, an episode of
acute heart failure in 2006, all associated with diabetes and obesity.
[52]
Ms.
Gmeiner concluded that there was no evidence to indicate that the life
expectancy of the deceased and Mrs. Wilcox would have been any different to
that of any other male or female, respectively, of the same age resident in Canada.
Accordingly, using the Canadian Population Mortality Table for males and
females as the underlying tables in her calculations, she found that the
couple’s remaining joint life expectancy as of the valuation date of May 1,
2007, had the deceased not died prematurely in the accident, would have been
13.89 years.
[53]
Regarding
life expectancy for Tina Wilcox, Ms. Gmeiner used mortality rates for Canadian
females of the same age without adjustment. She took into account that Tina
Wilcox had recovered quite well from her stroke and had already outlived
projected life expectancies of various physicians.
(C) Pecuniary
damages
(iii) Loss of financial support
[54]
Ms.
Gmeiner made a number of assumptions in her report regarding the deceased and Mrs.
Wilcox’s employment related income for the purpose of calculating the loss of
financial support for the surviving family. She assumed that the deceased’s
employment income would have remained steady and the family’s net family income
would have increased from $25,801 in 2004 to 32,200 in 2010 when the deceased
would have attained the age of 70. The increase over the years is mainly
attributable to qualification for Canada Pension Plan and Old Age Security
Benefits.
[55]
The
Defendants suggest that I put little weight on the assumptions in the actuarial
report because they say Ms. Gmeiner failed to account for Mrs. Wilcox’s duty to
mitigate her loss upon the death of her husband. Consequently, the Defendants
submit that her calculations have been exaggerated and are unreliable. However,
the Defendants did not support this argument with their own actuary report to
reflect their alternative calculations.
[56]
With
respect to the obligation to mitigate, the evidence was that Mrs. Wilcox has
been working part-time at Home Hardware, and has worked as a receptionist and
bookkeeper for her daughter’s massage therapy business. The Defendants suggest
that because, after her husband’s death, Mrs. Wilcox began working at different
jobs to replace the loss of income from her husband’s employment, she has
mitigated her loss, as was her obligation, and any amount gained must be
deducted from her award.
[57]
Counsel
for the Defendants submitted to decisions in support of the proposition that a
wife has an obligation to mitigate her loss upon the death of her husband by
seeking employment; Baumgartner v. Ripplinger, [1982] S.J. No. 625 and Cookson
v. Knowles, [1977] 2 All E.R. 820. Counsel also referred to paragraph 74 of
the Supreme Court of Canada’s decision in Keizer v. Hanna, [1987] 2
S.C.R. 342.
[58]
The
jurisprudence cited does not support the Defendants’ position. First, in Baumgartner
v. Ripplinger, Justice Maurice of the Saskatchewan Court of Queen’s Bench noted
that in Saskatchewan, there
appeared to be an inconsistent approach to the question. But in that case,
Justice Maurice held that because the widow had not worked outside the home
prior to her husband’s death, her subsequent employment was an irrelevant
factor in the assessment of damages.
[59]
It
was suggested that because Mrs. Wilcox had been earning income before her
husband’s death, the case was distinguishable, and her work should be
considered a relevant factor. With respect, I cannot agree. The purpose of
these damages is to restore a dependant to the financial position that he or
she would have occupied but for the death (Keizer v. Hanna at pp.
461-62). This is the case regardless of whether the dependant had some or no
income prior to the death.
[60]
In
any event, because Justice Maurice declined to consider the dependant’s prior
income earning-capacity, he never explained how it might be taken into
consideration. Therefore, the defendant suggested that the following comments
of Lord Denning in Cookson v. Knowles required that Mrs. Wilcox mitigate
her losses, thereby reducing her entitlement following the death:
He was earning at his death
1820 pounds a year. His wife was a cleaner at a school in Chipping for 32 hours
a week. She was earning 900 pounds a year. But she could not do it without her
husband’s help. He used to see to the boiler, clean the windows and such like
tasks. They were man’s work which she could not do. After her husband was
killed, she was unable to find any other man in the place to help her. So she
had to give up her work at the school… the judge found that, as a result of her
husband’s death, her earning capacity of 920 was wholly destroyed, but we do
not think the evidence supports that finding.
Seeing that the husband help
the wife in her work, it was quite legitimate for the judge to regard them as
conduction a joint operation. He took the combined earnings of the
husband and wife and calculated the dependency as two thirds of the combined
figure. He regarded that as completely lost by his death. He seems to have
disregarded the future earning capacity of the wife. We do not think that was
right. After his death, she retained her earning capacity. By his death the
dependents were deprived of the contribution provided by the husband. But not
the contribution of the wife. [emphasis added]
[61]
This
excerpt does not stand for the proposition that a wife has a duty to mitigate.
Rather, it merely confirms that the earning capacity of the wife prior to death
must be deducted from her entitlement. This is consistent with the purpose of
pecuniary damages meant to place the dependant in the same place that he or she
would have been but for the loss.
[62]
Ms.
Gmeiner’s actuary report reflects precisely this approach. She took into
consideration Mrs. Wilcox’s meagre earnings from some real estate work she had
undertaken in the years prior to her husband’s death, work she sought in order
to improve the family’s finances. Ms. Gmeiner was not required to make any
reduction in spite of her new employment. In fact, Ms. Gmeiner’s report
represents a thorough, fair and professional review of the Wilcox family
earnings. Her testimony was equally professional and frank. The Defendants’
suggestion that Ms. Gmeiner was not a reliable witness is completely unfounded.
(iv) Work
expectations
[63]
Ms.
Gmeiner operated on the assumption that the deceased would have continued
working until the age of 70 and lived to the same age as the normal New
Brunswick
male. The Defendants contested these assumptions, suggesting that the deceased’s
health was poor, that he was suffering from heart disease, and would not have
been able to continue working.
[64]
However,
by all accounts, the deceased was a motivated man who did not shy away from
physical labour. He had no savings or pension plan that would allow him to
retire comfortably. Moreover, his sense of duty to provide for his family would
have driven him to work until his health faltered. I am satisfied that the
deceased would likely have continued to work to age 70 and earn approximately
the same employment income as he earned in the three years prior to his death
at least. Ms. Gmeiner was therefore correct to assume that although the normal
retirement age is 65, the deceased would have continued to work to age 70.
(v) The
deceased’s life expectancy
[65]
There is no exact science of predicting mortality. However, there
are scientific approaches to forecasting mortality that actuaries,
econometricians and statisticians use. All of the experts called by the
Plaintiff were consistent in concluding that the deceased would likely have
lived to age 75. Dr.
Armstrong’s testimony is problematic for a number of reasons, not the least of
which is the approach he adopted in drafting his report. Dr. Armstrong admitted
that he sought to determine the life expectancy of both the deceased and Tina
Wilcox from an insurance perspective. In doing so, the underlying purpose of
Dr. Armstrong’s report is to set out the insurable risk for a possible insurer,
not an impartial assessment of life expectancy.
[66]
The
consequence of this approach was demonstrated during Mr. Armstrong’s cross-examination,
particularly when discussing the contents of his report prepared in respect of
Tina Wilcox. Dr. Armstrong admitted that many of the conditions of which he
identified, such as osteoporosis, were not actual issues, but only potential
ones. Potential medical conditions may be relevant to an insurer, however they
do not assist the Court in determining how an individual’s existing conditions
will likely affect their life expectancy.
[67]
Furthermore,
as the testimony of Dr. Craig reveals, while he noted concerns in respect of
the deceased’s shortness of breath and chest pain, he had taken these factors
into consideration but did not feel that at the time they reached the level of
serious concern. Therefore, Dr. Armstrong has afforded these notations in Dr.
Craig’s clinical notes undue weight.
[68]
As
a result, I have given no weight to the reports produced by Dr. Armstrong or
his opinions regarding the life expectancies of the deceased and Tina Wilcox.
[69]
The
deceased would have been able to physically continue to work, and indeed, live.
Consequently, both parties provided testimony from expert witnesses in order to
determine the deceased’s life expectancy. I am further satisfied that Ms.
Gmeiner correctly assumed that the deceased would have lived to the age of 75.
(vi) Tina
Wilcox’s life expectancy
[70]
Dr. Armstrong opined that Tina Wilcox’s life
expectancy is approximately three years as of the date of his report. His
evidence was unreliable, however, because of the unbalanced approach he took in
assessing the risk of mortality, thereby skewing the results. I am left with
the opinions of two experts called by the Plaintiff. Dr. Craig’s medical
opinion is that Tina Wilcox’s strength and drive will allow her to live for
many more years to come. Ms. Gmeiner considers Tina Wilcox a survivor who has
been able to surmount very difficult medical challenges. In the absence of any
impartial evidence suggesting otherwise, I am satisfied that Tina Wilcox’s
mortality was not significantly different than that of Canadian females of the
same age. Tina Wilcox has defied numerous predictions by professionals of her
imminent death for almost four decades. I therefore conclude that Tina Wilcox’s
life expectancy is far greater than that of her father had he survived, and at
the very least 14 years from the date of the accident.
(vii) Proper
Method of Adjustment
[71]
There
remains the method of calculation used by Ms. Gmeiner. Where the deceased is
not the only contributor to the family income, a reduction must be made for the
personal expenses of the deceased. In order to determine the appropriate
calculation, Ms. Gmeiner’s report adopted two approaches in order to reach this
calculation, the Cross Dependency Method and the Modified Sole Dependency
method.
[72]
There
is no unequivocal rule as to which method is appropriate in a given case.
Instead, the particular circumstances of the case will dictate the approach to
adopt. In this case, the calculations reach almost identical results, separated
only by approximately $10,000 in the result. Nonetheless, I believe the Cross
Dependency Method is appropriate in these circumstances.
[73]
Under
the Cross Dependency Method, the loss of financial support is deemed to be 70%
of the net after-tax income of the family unit less his or her net after-tax income.
Where there are three or fewer children, the loss of financial support of each
child is deemed to be 4% of net after-tax income. The practical result of this
model results in an assumption that the deceased’s personal expenses would have
constituted 26% of net after-tax family income with a single child present.
[74]
Using
the Modified Sole Dependency Method, calculations are based on the assumption
that the surviving spouse estimated net income would be equal to 60% of the
deceased’s after tax and other deductions. This is equivalent to the deceased’s
personal expenses constituting 36% of the deceased’s net income with one
dependent child present.
[75]
Justice
Fraser of the Alberta Court of Queen’s Bench, noting little jurisprudence on
the issue, undertook an extensive discussion of the appropriate method to adopt
in Millott Estate v. Reinhard, 2001 ABQC 1100. He concluded as follows:
[245] There is little direct
discussion in the cases on this point. Rather, there are implied assumptions.
Often, a court will neither discuss the rationale in detail nor use the labels.
The difference is that some cases apply a dependency rate to family income
(cross), while some apply a dependency rate to the deceased’s income (sole).
Occasionally, a court will find the dependency rate to be a certain number,
then apply a lower rate (modified).
[…]
[255] Therefore, I would
reserve sole dependency for cases where the sole income-earner is deceased. In
my view, sole dependency is inappropriate for a dual income household. Some adjustment
must be made for the survivor’s income, because the loss incurred by the
survivor must take into account the value of the financial gain to the survivor
from no longer spending a portion of the survivor’s income on the deceased.
[256] The proper method of
adjustment (cross or modified) depends on the circumstances. Generally, the
modified approach is applicable where there is evidence that the survivor’s
income is much greater than the deceased’s (which would lead to an absurd
result using cross dependency), or where there is evidence that the deceased
was extraordinarily frugal or self-sacrificing (as in Hechavarria [v.
Reale (2000] 51 O.R. (3d) 364].
Justice Fraser went on to apply the Cross
Dependency Method to a situation in which the deceased was an equal contributor
to the family’s income. In that case, the spouses contributed equally to a
joint account from which family expenses were paid.
[76]
The
circumstances of this case are particularly unique. The deceased was the
primary income earner. However, Mrs. Wilcox had obtained her real estate
licence and was earning around $3,000 prior to her husband’s death.
[77]
Although
the deceased clearly earned a more substantial salary than Mrs. Wilcox, their
incomes were pooled together and used for the benefit of the entire family. It
is reasonable to assume that both spouses benefited equally from the total net
family income.
[78]
As
stated in MacNeil v. Gillis:
[190] As a general rule, and in the absence of
evidence to the contrary, in two income families where the incomes are pooled
each spouse would spend approximately 30% of net family income for their
respective personal usage. Therefore, it is reasonable that in most cases such
a sum be deducted from the deceased spouse's net income as a start to determining
the amount of support lost to the surviving spouse.
[79]
Consequently,
the Cross Dependency Method should be adopted in the assessment of damages.
(viii) Loss
of Valuable Services
[80]
Mrs.
Wilcox and Tina Wilcox are also entitled to damages with respect to the loss of
valuable services provided by the deceased prior to his death.
[81]
With
respect to the support provided by the deceased to the operation of the
household, Ms. Gmeiner’s report operated on the basis of general averages
provided by the Overview of the Time Use of Canadians in 1998 report
prepared by Statistics Canada. In that study, Ms. Gmeiner noted that the
average time spent by Canadian males on household tasks in 1998, excluding
child care activities, was 2.1 hours per day, or around 764 hours per annum.
Ms. Gmeiner adopted these figures, but reduced the hours by 20% on the basis
that the deceased may have spent time on tasks for his own benefit.
[82]
In
my opinion, this approach is a conservative one and eminently reasonable in the
circumstances, given the evidence presented to the Court. That evidence
suggests that the deceased’s contribution was no more, nor any less than the
average male.
[83]
Based
on a study prepared by Statistics Canada entitled The Value of Household
Work in Canada, 1992, Ms. Gmeiner also concluded that the replacement cost
of household work in New Brunswick was $9.87 per hour, or $12.33 in 2004
dollars, $12.47 in 2005 dollars, $12.82 in 2006 dollars and $12.98 in 2007
dollars, a sum used for all of the following years until he reached the age of
75, when it was assumed the deceased himself, if still alive, would have
required assistance. Again, this approach is entirely reasonable and reflective
of the evidence presented to the Court.
[84]
Tina
Wilcox’s loss was evaluated on the assumption that the deceased provided 20
hours of assistance for her each week, whose replacement costs would have been
around $13.00 per hour. Ms. Gmeiner conceded that this figure was not
necessarily precise, since she based her decision on information with which she
had been provided. Nonetheless, she noted that depending on the Court’s
conclusion, this calculation could be easily modified.
[85]
It is difficult to calculate precisely how many
hours of attendant care assistance the deceased would have provided to Tina Wilcox.
The amount of assistance would necessarily vary depending on the periods that
Mr. Wilcox was gainfully employed. However, evidence of the services he
provided before his death is the best indicator. I am satisfied that, on
average over the year, Mr. Wilcox provided attendant care assistance to Tina
Wilcox amounting to 20 hours per week. Were it not for the assistance of
professionals provided by the province, the number would have been double, or
even triple.
[86]
A
simple example demonstrates the reasonableness of this assumption, which works
out to less than three hours a day of assistance. A single trip to the doctor
itself, given Tina Wilcox’s disabilities, may have required several hours on
its own. The deceased would have had to prepare her for the trip, driven her to
the appointment, assisted her during the appointment, and repeated each step on
their return.
(D) Damages for
Care, Guidance and Companionship
[87]
Paragraph
6(3)(a) of the Act provides for the recovery of damages to
compensate specified family members for the loss of guidance, care and
companionship that the deceased would have provided but for his or her untimely
death. The Act provides no guidance as to the amount of damages that may be
awarded under this section. The method of assessment of damages and the quantum
of the award are not uniform among those provinces.
[88]
There have been two approaches with respect to
the award of damages for loss of care, guidance and companionship. In some
jurisdictions there has been an acceptance of the “conventional awards”
standard in which the Court assessing the damages provides for an amount to be
paid to the survivors of the deceased without an in-depth analysis and assessment of the relative relationship
between the parties to the deceased. Other
jurisdictions have by case law set forth a range of damages to be paid to the
survivors of the deceased without any evidence of the nature of the
relationship or entitlement.
[89]
In New Brunswick, where the accident took place, section 3(4) of the Fatal Accidents
Act provides that the parents of a child may recover an amount to
compensate for the loss of companionship and an amount to compensate for grief
suffered. There is no provision, however, for a claimant to recover for loss of
a spouse, or for a child to recover for loss of a parent. Those losses have to
be pursued on a pecuniary loss basis.
[90]
The legislative provisions in the Province of Ontario bear the closest resemblance to s. 6 of the Act both in form
and effect. In Augustus v. Gosset [1996] 3 S.C.R. 268, the Supreme Court
signalled its acceptance of the approach taken by the Ontario Courts for a full
assessment of the evidence on a case-by-case basis, and has rejected a
conventional award approach in jurisdictions where there does not exist an amount
stipulated by statute. Various factors should be considered, including
the circumstances of the death, the ages of the deceased and the dependant, the
nature and quality of the relationship between the deceased and the dependant,
the dependant’s personality and ability to manage the emotional consequences of
the death, and the effect of the death on the dependant’s life. The following cases outline the process of analysis of the
relationship and considerations which gives rise to the general damage award.
[91]
In Stephen v. Stawecki, [2006] O.A.C.
199, the Ontario Court of Appeal fixed the damages for loss of care, guidance
and companionship at $70,000.00 where the deceased had been involved in a
relationship with the Plaintiff and had lived together for some period of time
prior to the trial. Notwithstanding that the parties maintained separate
residences, the fact that they cohabited in a conjugal relationship and that
were planning a long term future was found by the Court to be sufficient for
the purposes of making an award under the act.
[92]
In Hechavarria v. Reale (2000) 51 O.R.
(3d) 364 (OSCJ), a 53-year-old wife and mother of three was killed when a
school bus driven by the defendant went through a red light and struck her
vehicle. The Court awarded damages for loss of care, guidance and companionship
in addition to loss of housekeeping services, loss of income and past and
future dependency loss. In that case the husband was awarded general damages of
$85,000.00, her three children aged 30, 27 and 22 were awarded general damages
of $30,000.00 each, and her sisters were awarded general damages of $12,500.00
each.
[93]
In Fish v. Shainhouse [2005] O.J. 4575 (OSCJ),
the Ontario Court made a
provisional assessment of damages. After finding that the plaintiff and her husband
had a close and loving relationship and would have continued in this
relationship for the remainder of their lives, the Court calculated a general
damage claim in the amount of $80,000.00. Similarly a dependent child who was
completely devastated as a result of his father’s death was awarded $80,000.00.
A daughter, aged 23 and attending university while still living with her
parents, who had a close relationship with her father was awarded $50,000.00.
Even a child who had a strained relationship with his father was awarded
$25,000.00.
(ix) Patsy Ann Wilcox and Tina Wilcox
[94]
The late John Wilcox was a quiet, kind and
unassuming man. He provided both financial and emotional stability, and by all
accounts, was selflessly devoted to his family. I find that considerable
importance should be given to the words “care, guidance and companionship” in
the context of his family, and particularly his wife and Tina Wilcox.
[95]
Counsel
for the Plaintiff submitted that the proper range of damages for Mrs. Wilcox’s loss
of care, guidance and companionship of her husband should be $75,000 to $100,000.
The Defendants counter that her damages should be limited to $10,000. The
uncontradicted evidence establishing a long-lasting, loving and close relationship
between the deceased and Mrs. Wilcox militates strongly in favour of a higher
award. The loss comes at a time when companionship would have been most important
to Mrs. Wilcox. However, the advanced age of the couple requires that the amount
be discounted somewhat. Considering the case law and the need for some
consistency in the law, and adjusting awards of damages in other cases for
inflation, I conclude that damages in the amount of $75,000 on account of the
loss of care, guidance and companionship to Mrs. Wilcox are appropriate in this
case.
[96]
The
Defendants submit that a reasonable amount for loss of care, guidance and companionship
for Tina Wilcox should be $10,000 since the actual care provided by the
deceased was not significant and her life expectancy was significantly reduced.
It was clear from the evidence that there was a strong bond between the
deceased and Tina Wilcox. The evidence indicated that he was a good and loving
father. As a result of her disability, she relied on the care and assistance of
her family, and quite heavily on her father. It is clear that she senses a deep
loss of an individual with whom she was very close. She has been deeply
affected by the loss of her father, becoming less outgoing and more reclusive. A
significant award is in order. In my view, $75,000 represents a fair and
reasonable amount to compensate Tina Wilcox for the loss of her father’s care,
companionship and guidance.
(x) Thomas Wilcox
and Tammy-Lynn Wilcox-Doiron
[97]
Thomas
Wilcox is the deceased’s middle child and works as an assistant manager at
Acadia Seaplants. He returned to his parent’s home at age 21 and lived in the
attached apartment free of charge while he and his wife saved money to purchase
their own home. While living in the apartment, he spoke with his parents daily
and at other times, his father would often watch his son play hockey. He also testified
about regular pastimes that he and his father would partake in, such as playing
catch at family dinners, going for drives, having a coffee together and generally
helping each other out.
[98]
Tammy
Wilcox, the youngest of three children, operates her own business where she
works as a massage therapist. She explained that her father did not show his
affection in the usual way with kisses and hugs. Instead she says his affection
for his children was evident from the way he teased and played with his
children, especially Tina Wilcox.
[99]
The
relationship Tammy Wilcox described with her father was quite typical. She
passed by her parent’s home at least once a week and was always present at special
occasions, as was Thomas Wilcox. The deceased was always willing to help her in
times of need, and she would rely on him for advice.
[100] Thomas Wilcox,
in his own words, is “not a talker” and not someone prone to describing his
relationship with his father in any detail. But it is clear from his testimony
that he and his father enjoyed a close relationship. Tammy Wilcox also enjoyed
a similarly close relationship with her father. In the circumstances, I consider
an award of $25,000 to each of them for the loss of the care, companionship and
guidance of their father to be appropriate.
(xi) David
and Mary Wilcox
[101] David Wilcox is
the deceased’s brother, a retired school teacher from Rothesay, about an hour’s
drive from Pennfield. Like his brother, David Wilcox is fairly reserved and not
one to express his emotions publicly. David Wilcox testified that he saw his
brother from time to time, occasionally visiting each other at home or over the
holidays. I do not take the two brother’s lack of regular contact as a sign of
estrangement. Rather, it simply attests to their stoic personalities. In the
last two or three years before his death, after David Wilcox’s retirement, the
brothers managed to see each other more often.
[102] Mary Wilcox,
a freelance journalist and part-time university professor from Halifax is the
deceased’s sister. Although she no longer resided in New Brunswick like her two
brothers, it is clear that she kept in close contact with her family. She spoke
regularly with her brother and visited the family in Pennfield often.
[103] Both David Wilcox
and Mary Wilcox enjoyed a close and warm relationship with their brother. They have
lost an important person, the first of three siblings. In the circumstances, I
consider damages in the amount of $15,000 for each of them is appropriate to
compensate them for the loss of care, guidance and companionship of their
brother.
(E) Funeral
Expenses
[104] The
Plaintiffs introduced evidence that the cost of the funeral and the newspaper
notices totalled $7,979.64. I am satisfied that these out-of-pocket expenses
were reasonable in the circumstances and compensable pursuant to s. 6 of the Act.
Conclusion
[105] The
assumptions outlined in Ms. Gmeiner’s actuarial report in calculating the
financial losses of the Wilcox family are in my view conservative, and quite
reasonable. I am also satisfied that the assumptions made regarding the life
expectancies of the deceased, Mrs. Wilcox, and Tina Wilcox were sound. On the
evidence before me, I am satisfied that the pecuniary losses calculated using
the cross dependency method effective May 1, 2007, the first day of the
hearing, have been established on a balance of probabilities.
[106] In light of
the above, I assess damages against the Defendants in the following amounts:
(a) Losses
of support for Pasty Ann Wilcox
(i) Past
Loss of Support with interest $ 51,950.00
(ii) Loss
of Future Financial Support with interest $116,454.00
(b) Losses
of support for Tina Wilcox
(i) Past
Loss of Support with interest $ 3,480.00
(ii) Loss
of Future Financial Support with interest $ 10,763.00
(c) Losses
of Valuable Services for the Wilcox Family
(i) Past
Loss of Valuable Services with interest $ 22,908.00
(ii) Loss
of Future Valuable Services with interest $ 45,147.00
(d) Losses
of Valuable Services for Tina Wilcox
(i) Past
Loss of Valuable Services with interest $ 40,081.00
(ii) Loss
of Future Valuable Services with interest $ 75,631.00
(e) Loss
of care, guidance and companionship
(i) Patsy
Ann Wilcox $ 75,000.00
(ii) Tina
Marie Wilcox $
75,000.00
(iii) Tammy-Lynn
Wilcox-Doiron $ 25,000.00
(iv) Thomas
Wilcox $ 25,000.00
(v) David
Leslie Wilcox $ 15,000.00
(vi) Mary
Eileen Wilcox $ 15,000.00
(f) Funeral expenses $
7,979.64
[107] I trust that
the parties can and will resolve the issues of pre-judgment and post-judgment
interest, as well as costs of the proceedings, on a consensual basis. In the
event they cannot agree, the Plaintiff is directed to serve and file, within 10
days, written representations not exceeding five pages in length, a draft bill
of costs, and copies of any written offers to settle. The Defendants shall
serve and file written representations in reply, not exceeding fives pages in
length, with 10 days of service of the Plaintiff’s submissions.
“Roger R. Lafrenière”
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