Wilcox v. Miss Megan (Ship), 2008 FC 506

 

Date: 20080418

Docket: T-753-05

Citation: 2008 FC 506

Ottawa, Ontario, April 18, 2008

PRESENT:     The Honourable Mr. Justice O'Keefe

 

ADMIRALTY ACTION IN REM AND IN PERSONAM

 

BETWEEN:

PATSY ANN WILCOX

Plaintiff

(Respondent)

 

and

 

THE OWNERS AND ALL OTHERS INTERESTED

IN THE SHIP MISS MEGAN and

GARY ROSS HANLEY

 

Defendants

(Applicants)

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

O’KEEFE J.

 

[1]               The applicants have filed this motion pursuant to Rule 163(1) of the Federal Court Rules, SOR/98-106 to appeal the findings of a report on reference (the report) issued by Prothonotary Lafrenière in Patsy Ann Wilcox v. “Miss Megan” et al., 2007 FC 1004 dated October 2, 2007. The report made several monetary awards in relation to the death of John Wilcox.

 

[2]               The applicants request that this Court reduce the damages awarded in the report.

 

Background

 

[3]               Patsy Ann Wilcox (respondent in the motion, plaintiff in the action) is the widow and executrix of the estate of John Wilcox (the deceased). On Saturday, May 8, 2004, the deceased was lawfully working on board the fishing vessel Miss Megan when it foundered, took on water and capsized or partially sank. The deceased drowned; he was 63 years old at the time of his death.

 

[4]               On April 29, 2005, Patsy Ann Wilcox filed a statement of claim against Gary Ross Hanley, the owner of the Miss Megan (applicants in the motion, defendants in the action) alleging the wrongful death of her husband pursuant to the Marine Liability Act, 2001 c.6 (the Act). The plaintiff made claims for loss of financial support and loss of valuable services on behalf of herself and her disabled daughter, Tina Wilcox. The plaintiff also sought damages for loss of guidance, care and companionship on behalf of herself, the couple’s three adult children, and the deceased’s brother and sister.

 

[5]               The defendants filed a statement of defence dated May 26, 2005 whereby they admitted liability for the death of the deceased, but disputed the entitlement to certain damages. By order dated April 11, 2006, the plaintiffs were granted summary judgment with costs and the matter was referred for an assessment of the quantum of damages owed to the plaintiff. On October 2, 2007, Prothonotary Lafrenière rendered his report allocating and quantified the damage awards.

 

[6]               On October 30, 2007, the applicants filed a notice of motion to appeal the report pursuant to Rule 163(1) of the Federal Court Rules, above. This is the appeal of Prothonotary Lafrenière’s report in the decision Patsy Ann Wilcox v. “Miss Megan” et al., above.

 

Prothonotary Lafrenière’s Report

 

[7]               Prothonotary Lafrenière’s report addressed the following three issues: (1) the eligibility of the deceased’s siblings to seek damages, (2) pecuniary losses suffered by the deceased’s widow and disabled daughter, and (3) damages for care, guidance and companionship.

 

(1)   Eligibility of the deceased’s siblings to seek damages

 

[8]               With regards to the question of eligibility, Prothonotary Lafrenière reviewed sections 6 and 4 of the Act which grant the opportunity to recover damages and limit eligibility to recover, respectively. A question arose at trial as to whether the deceased’s siblings qualified under subsection 4(c) of the Act to claim damages. Prothonotary Lafrenière stated at paragraph 10 of his report that words contained in a statute are to be given their ordinary meaning and that other principles of statutory interpretation “only come into play where the words sought to be defined are ambiguous (R. v. McCraw, [1991] 3 S.C.R. 72).” Prothonotary Lafrenière found at paragraph 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 personnne”, that is, any other individual who does not fit within the class of family members listed.

 

[9]               Consequently, the deceased’s siblings were entitled to claim damages as dependents pursuant to the Act.

 

(2)   Pecuniary losses suffered by the deceased’s widow and disabled daughter

 

[10]           With regards to the recovery of pecuniary damages claimed by the deceased’s widow and disabled daughter, Prothonotary Lafrenière began by assessing the evidence regarding the life expectancy of the deceased and his disabled daughter. Prothonotary Lafrenière reviewed the expert witness testimony presented by both sides, and was convinced by the evidence presented by the plaintiff’s experts. With regards to the deceased’s life expectancy, Prothonotary Lafrenière stated at paragraph 65 that all the plaintiff’s experts consistently concluded that 75 was an appropriate life expectancy. Prothonotary Lafrenière found the defendant’s expert testimony of Dr. Armstrong, problematic in part because it was from an insurance perspective and therefore not an impartial assessment of life expectancy. As a result, Dr. Armstrong’s reports regarding life expectancy were given no weight. In conclusion, Prothonotary Lafrenière was satisfied that the deceased would have lived until the age of 75. With regards to the life expectancy of Tina Wilcox, Prothonotary Lafrenière, in part for the same reasons as above, gave Dr. Armstrong’s testimony no weight. Prothonotary Lafrenière gave significant weight to Dr. Craig and Ms. Gmeiner’s testimonies. It was concluded that Tina Wilcox’s life expectancy would far surpass the age at which her father had died, at the very least, 14 years from the date of the accident.

 

[11]           With regards to the work expectations of the deceased, Prothonotary Lafrenière stated at paragraph 64:

[…] 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. [. . .]

 

 

[12]           With regards to the actual calculation of the financial loss, Prothonotary Lafrenière found that the amount projected by the plaintiff’s actuary, Ms. Gmeiner, should not be reduced on the basis that the deceased’s widow was expected to mitigate her loss upon the death of her husband. Prothonotary Lafrenière rejected this argument put forward by the defendants and explained why the jurisprudence cited by the defendants did not support their position.

 

[13]           Prothonotary Lafrenière did however accept that a reduction was to be made for the personal expenses of the deceased. After having discussed two approaches, Prothonotary Lafrenière found the Cross Dependency Method to be the most appropriate given the circumstances of the case.

 

[14]           With regards to the loss of valuable services provided by the deceased, Prothonotary Lafrenière accepted Ms. Gmeiner’s evidence. Ms. Gmeiner’s report projected that based on the figures of a Statistic Canada report, the deceased likely spent 2.1 hours a day on household tasks. Prothonotary Lafrenière was of the opinion that this approach was “a conservative one and eminently reasonable in the circumstances, given the evidence presented to the Court.” Ms. Gmeiner’s report then used Statistic Canada’s valuation of the replacement cost of household work in New Brunswick to quantify the hours of household work lost.

 

[15]           With regards to the loss of valuable services provided by the deceased to his disabled daughter, the Prothonotary also accepted Ms. Gmeiner’s evaluation which assumed that the deceased spent on average 20 hours per week assisting his disabled daughter, Tina Wilcox. Prothonotary Lafrenière found this amount to be reasonable and noted that without the assistance of professionals provided by the province, the number would have been much higher.

 

[16]           The Prothonotary made the follow awards regarding loss of financial support:

• Patsy Ann Wilcox:

- Past loss of support with interest $51,950

- Loss of future financial support with interest $116,454

• Tina Wilcox

- Past loss of support with interest $3,480

- Loss of future financial support with interest $10,763

 

 

 

[17]           The Prothonotary made the follow awards regarding loss of valuable services:

• Wilcox Family

- Past loss of valuable services with interest $22,908

- Loss of future valuable services with interest $45,147

• Tina Wilcox

- Past loss of valuable services with interest $40,081

- Loss of future valuable services with interest $75,631

 

(3)   Damages for care, guidance and companionship

 

[18]           With regards to the damages claimed for loss of care, guidance and companionship, Prothonotary Lafrenière noted that paragraph 6(3)(a) of the Act provides for the recovery of these damages, but the Act fails to provide guidance on quantifying the amounts. Prothonotary Lafrenière discussed two approaches taken in various jurisdictions, but in the end found that the legislative provisions in the Province of Ontario bore the closest resemblance to section 6 of the Act in both form and effect. In Patsy Ann Wilcox, above Prothonotary Lafrenière discussed the Supreme Court’s decision in Augustus v. Gosset, [1996] 3 S.C.R. 268, stating at paragraph 90:

[…] 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. [. . .]

 

[19]           Prothonotary Lafrenière then reviewed cases comparable to the present one including Stephen v. Stawecki [2006], 213 O.A.C. 199, Hechavarria v. Reale (2000), 51 O.R. (3d) 364 (OSCJ), and Fish v. Shainhouse, [2005] O.J. 4575 (OSCJ). Taking into consideration the factors outlined by the Supreme Court of Canada in Augustus, above Prothonotary Lafrenière assessed each of the relationships between the deceased and the individuals claiming damages for loss of care, guidance and companionship and made the following awards:

• Patsy Ann Wilcox - $75,000
• Tina Marie Wilcox - $75,000
• Tammy-Lynn Wilcox-Doiron - $25,000
• Thomas Wilcox - $25,000
• David Leslie Wilcox - $15,000
• Mary Eileen Wilcox - $15,000

 

[20]           And finally, Prothonotary Lafrenière awarded the plaintiff $7,979.64 for the recovery of funeral expenses.

 

Issues

 

[21]           The applicants submitted the following issues for consideration:

            1.         Are John Wilcox’s siblings “dependants” pursuant to subsection 4(c) of the Marine Liability Act, above?

            2.         Did Prothonotary Lafrenière err in law in his award of damages for loss of care, guidance and companionship by failing to assess conventional amounts for these damages?

            3.         Did Prothonotary Lafrenière err in law and substantially misapprehend the evidence as to the determination of the life expectancy of Tina Marie Wilcox and John Wilcox?

            4.         Did Prothonotary Lafrenière err in law and substantially misapprehend the evidence as to the assessment of the loss of financial support and loss of valuable services for Patsy Ann Wilcox and for Tina Marie Wilcox?

 

Parties’ Submissions

 

[22]           I have summarized the parties’ submissions under the following headings:

1. Definition of “dependents”
2. Damages for care, guidance and companionship
3. Life expectancy
4. Loss of financial support and valuable services

 

Applicants’ Submissions

 

1. Definition of “dependents”

 

[23]           The applicants submitted that the deceased’s brother and sister do not fall within the definition of “dependants” under subsection 4(c) of the Act as they were not “individual[s] who stood in the place of a parent” to the deceased. It was submitted that an ambiguity exists between the English and French versions of the Act as the English version of subsection 4(c) reads “or an individual” while the French version reads “ou toute autre personne”. In making this argument, the applicants relied on Medovarski v. Canada (Minister of Citizenship and Immigration) (2005), 258 D.L.R. (4th) 193 (S.C.C.) and submitted that the interpretation of bilingual statutes is a two-part process. One must first determine if there is discordance and a common meaning between the two versions and if so, the common meaning favours the more restricted or limited meaning (Medovarski, above). The second step is to determine if the common meaning is consistent with Parliament’s intent (Medovarski, above). The applicants submitted that the French version of subsection 4(c) of the Act is more restrictive and thus, best reflects the common intention of the legislator found in both versions.

 

[24]           The applicants further submitted that one must also consider the presumption against tautology. It was submitted that the wording used in section 4 of the Act can be compared with the Canada Shipping Act, R.S.C. 1985, c. S-9 (since repealed), and Manitoba’s Fatal Accidents Act, C.C.S.M. c. F50, which both provide definitions that include a list of specific persons followed by the words “and a person who stood in loco parentis to a deceased person.” The applicants submitted that the Court must give meaning to the words “toute autre” as it has the effect of qualifying the persons listed in subsection 4(c) to only those “individual[s] who stood in the place of a parent” to the deceased.

 

 

2. Damages for care, guidance and companionship

 

[25]           The applicants submitted that the awards made for loss of care, guidance and companionship under paragraph 6(3)(a) of the Act should have been modest, conventional awards. It was submitted that the Court has more latitude when dealing with the exercise of a prothonotary’s discretion in setting awards for loss of care, guidance and companionship. The Court should step in if the findings are “clearly wrong, i.e., it is based upon a wrong principle or a misapprehension of the facts, or [if it] raises questions vital to the final issue of the case” (Reading & Bates Construction Co. v. Baker Energy Resources Corp. (1994), 58 C.P.R. (3d) 359 at 6 (F.C.A.)). In cases where the prothonotary’s discretion is reviewable, a judge’s discretion is de novo (Reading & Bates Construction Co., above at 6).

 

[26]           The applicants submitted that conventional awards do not preclude the Court from weighing the evidence in each case, but yet ensure reasonability and consistency between cases. It was submitted that the principles of certainty, predictability and objectivity should not be overlooked (Nightingale v. Mazerall, [1991] N.B.J. No. 1127 at 4 and 5 (C.A.)).  The applicants submitted that New Brunswick case law has adopted an approach that balances the needs of the particular case and elements of predictability and consistency. Other provinces have also adopted a similar approach (Lawrence v. Good (1985), 18 D.L.R. (4th) 734 (Man. C.A.), Braun Estate v. Vaughan, [2000] 3 W.W.R. 465 (Man. C.A.), Augustus v. Gosset, above).

 

[27]           The applicants submitted that in the present case, the awards for care, guidance and companionship should be substituted by this Court. Based on the alleged comparable cases of Simpson Estate v. Cox, [2006] N.S.J. No. 133, Lynch Estate v. Anderson (1999), 180 Nfld & P.E.I.R. 225 (Nfld T.D.), and McDonell Estate v. Royal Arch Masonic Homes Society, [1997] B.C.J. No. 2079 (S.C.), the applicants submitted that an appropriate award in the present case would be $15,000 for Patsy Ann Wilcox (wife), and $15,000 for Tina Wilcox (daughter).

 

3. Life expectancy

 

[28]           The applicants submitted that Prothonotary Lafrenière made a reviewable error in his assessment of life expectancy for both the deceased and Tina Wilcox. It was submitted that Prothonotary Lafrenière erred in law in deciding to give no weight to the expert opinion of Dr. Armstrong on the basis that the evidence was given from an insurance perspective. The applicants submitted that life expectancy is the same whether it is assessed for an insurance purpose or for any other purpose. In fact, it was submitted that Dr. Armstrong’s opinion on life expectancy was accepted in Rupert v. Toth, [2006] O.J. No. 882 (Ont. S.C.) at paragraph 174). As the credibility of the witness was not at issue, the principal of non-intervention does not apply (Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 at paragraph 15).

 

[29]           The applicants submitted that Prothonotary Lafrenière’s conclusion at paragraph 65 that all of the respondent’s experts concluded that the deceased would likely have lived until age 75 is not supported by the evidence. It was submitted that only Dr. Melvin and Dr. Armstrong provided opinion evidence on life expectancy and both were of the view that the deceased’s life expectancy would be less than 75 years. The applicants submitted that based on the evidence, the deceased’s life expectancy was 71 years old.

 

[30]           The applicants submitted that Prothonotary Lafrenière also erred in finding that the deceased’s daughter, Tina Wilcox, has a life expectancy greater than that of her father and at the very least, 14 years from the date of the accident. It was submitted that the only expert qualified to give evidence on life expectancy was Dr. Armstrong and Prothonotary Lafrenière erred in according his evidence no weight. It was also submitted that Prothonotary Lafrenière’s reliance on Dr. Craig’s medical opinion was a reviewable error as Dr. Craig was not qualified to give evidence on life expectancy and nothing in his evidence supports the conclusion that Tina would live for many years to come. The applicants submitted that Dr. Armstrong’s assessment of Tina Wilcox life expectancy is supported by the evidence and should be adopted by the Court.

 

4. Loss of financial support and valuable services

 

[31]           The applicants submitted that Prothonotary Lafrenière erred in concluding that the deceased would have worked until age 70, earning at least the same employment income as he had earned in the three years prior to his passing. It was submitted that the evidence showed that 65 is the normal age of retirement in New Brunswick and that the deceased’s age, residency, education and experience all indicate that he would only work until the age of 65.

 

[32]           The applicants also submitted that Prothonotary Lafrenière’s award for loss of valuable services was not supported by the evidence. It was submitted that the evidence showed that the deceased’s daughter attended school from 8:30 a.m. to 3:30 p.m., 5 days a week, 12 months a year and that in addition, Community Services provided her with 40 hours a week paid care. As such, the award for loss of valuable services was not supported by the evidence.

 

Respondent’s Submissions

 

[33]           The respondent submitted that on appeal of the decision of a Referee, this Court should not interfere with the findings of law or fact unless errors of law or findings of fact were made in a perverse or capricious manner or as the result of a palpable and overriding error. The exercise of the discretionary powers of a prothonotary, whether sitting as a prothonotary or referee is not to be disturbed unless clearly wrong (Reading & Bates Construction Co., above), leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 532). The respondent submitted that none of the Prothonotary’s findings of fact or law meet this standard. Moreover, all of the findings of fact were supported by the evidence, which in many instances was undisputed.

 

1. Definition of “dependents”

 

[34]           With regards to Prothonotary Lafrenière’s finding that the deceased’s brother and sister were dependants pursuant to section 4 of the Act, the respondent submitted that the applicants’ interpretation restricts the classes of persons who would be entitled to recover losses under the legislation. The respondent submitted that this narrow interpretation means that under subsection 4(c) of the Act, only persons who stood in the place of a parent could recover; this is clearly contrary to Parliament’s intent given the other defined relationships in the subsection.

 

2. Damages for care, guidance and companionship

 

[35]           The respondent also submitted that in choosing a “case by case approach” over a “conventional award approach”, Prothonotary Lafrenière used the correct method to determine the appropriate level of damages in light of the legislation. It was submitted that sections 4, 5, and 6 of the Act were Parliament’s reaction to the Supreme Court of Canada’s decision in Ordon Estate v. Grail, [1998] 3 S.C.R. 437. In making this argument, the respondent relied on a working paper by the Law Commission of Canada entitled “Compensation for Relational Harm (2001)” which provided that in the aftermath of Ordon, above new legislation expanded the definition of beneficiaries, diversified the types of compensable losses, and permitted claims for relational losses in situations of wrongful injury as well as wrongful death.

 

[36]           It was submitted that to date there have been no reported decisions of the Federal Court in assessing the award of damages for loss of care, guidance and companionship; however, in other jurisdictions two approaches have prevailed. In the “convention awards approach”, the Court assesses the damages and provides for an amount to be paid to the survivors without an in depth analysis and assessment of the relative relationship between the parties. It was submitted that such an approach has been legislated in Alberta and Manitoba, and has been adopted by the courts in British Columbia and Nova Scotia. The respondent submitted that the “case by case approach”, which involves an in depth analysis and assessment of the relative relationship between the parties, is in force in paragraph 61(2)(e) of Ontario’s Family Law Act, R.S.O. 1990, c. F3 and bears the closest resemblance to the provisions that this Court must adjudicate. The respondent provided a number of examples where the “case by case approach” was applied in Ontario including To v. Toronto Board of Education, [2001] O.J. 3490 (OCA), Stephen v. Stawecki, above, Hechavarria v. Reale, above, and Fish v. Shainhouse, above. It was also submitted that in Augustus, above the Supreme Court of Canada clearly signalled its acceptance of the Ontario courts’ approach, therefore rejecting a conventional award approach in jurisdictions where there does not exist an amount stipulated by statute. The respondent noted that in Augustus, above the Supreme Court of Canada gave general guidance about evidence including the factors to be considered when assessing such damages. The respondent submitted that in adopting the “case by case approach”, Prothonotary Lafrenière followed the guidance provided by the Supreme Court of Canada.

 

3. Life expectancy

 

[37]           The respondent submitted that the applicants’ argument with regards to Prothonotary Lafrenière’s assessment of the life expectancy of both John and Tina Wilcox is baseless. The respondent submitted that the applicants are arguing that Dr. Armstrong’s evidence should be preferred over the respondent’s experts. The respondent submitted that Prothonotary Lafrenière was clear in stating that Dr. Armstrong’s evidence was qualified only for the limited purpose of providing evidence as to mortality from an insurance perspective. It was submitted that given the limited expertise and qualifications of Dr. Armstrong, and given the credibility and consistency of the respondent’s experts, there is no basis upon which to disturb Prothonotary Lafrenière’s findings on this matter.

 

4. Loss of financial support and valuable services

 

[38]           And finally, with regards to Prothonotary Lafrenière’s findings on loss of financial support and valuable services, the respondent submitted that these findings were consistent with the actuarial evidence of Ms. Gmeiner. These findings were for the most part not contested and were consistent with the evidence adduced at the hearing. There is no basis upon which to disturb the findings.

 

[39]           The respondent requested that the motion be dismissed.

 

Analysis and Decision

 

[40]           Before proceeding to analyze the issues raised by the applicants, I must first address the standard of review and powers of the Court on appeal under Rule 163 of the Federal Court Rules, above.

 

[41]           The standard of review on appeal of a report on reference was discussed in Reading & Bates Construction Co., above; leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 532. Essentially, the Federal Court of Appeal at paragraphs 9 to 11 found that on appeal of a decision of a referee, the reviewing judge should only interfere with findings of law or fact where the referee committed an error of law or fact in a perverse or capricious manner or as the result of a palpable and overriding error. The Federal Court of Appeal also stated that “when the exercise of [the discretion of a Prothonotary] is reviewable, a judge ought to exercise his discretion de novo” (Reading & Bates Construction Co., above at paragraph 10).

 

[42]           As for the powers of the Court, Rule 163(3) of the Federal Court Rules, above provides that “the Court may confirm, vary or reverse the findings of the report and deliver judgment or refer it back to the referee, or to another referee, for further inquiry and report.”

 

[43]           Issue 1

            Are John Wilcox’s siblings “dependants” pursuant to subsection 4(c) of the Marine Liability Act, above?

            The applicants submitted that Prothonotary Lafrenière erred in law in finding that the deceased’s siblings were eligible under paragraph 4(c) of the Act to recover damages. The respondent disagrees.

 

[44]           The applicants submitted that when the English and French versions are read together an ambiguity arises. Specifically, the applicants submitted that the French words “toute autre personne” mean “any other person”, whereas the English version reads simply “an individual”. The effect of this ambiguity in the eyes of the applicants is that in the French version the family members listed at the start of paragraph 4(c) are only eligible if they “tenait lieu de parent à cette denière” which means they must have “stood in the place of a parent”. The applicants submitted that according to the rules of bilingual statutory interpretation, the more restrictive version is to be preferred as it best reflects the common intention of the legislator found in both versions.

 

[45]           While I agree with the principles of bilingual statutory interpretation as stated by the applicants, I simply do not accept that they apply in the present case. As the applicants stated themselves at page 14 of their written submissions, the rules of bilingual statutory interpretation are to be used “with conflicting French and English versions of legislation.” That is, an ambiguity or conflict between the two versions must first be found.

 

[46]           I agree with Prothonotary Lafrenière that if the words of the statute are given their ordinary meaning there exists no conflict or ambiguity between the two versions. Both versions essentially create a group of individuals separate from the enumerated family members who are still eligible to claim damages so long as they “stood in the place of a parent.” In my opinion, the applicants’ interpretation of the French version is one that misconstrues the ordinary meaning of the words. Moreover, I agree with the respondent that to accept the applicants’ interpretation would render the list of family members set out in paragraph 4(c) meaningless as Parliament could just as easily said anyone who stood in the place of a parent. For these reasons, I find that Prothonotary Lafrenière did not err in his interpretation of paragraph 4(c) of the Act and as such, I see no reason to interfere with the corresponding damage awards made to the deceased’s siblings.

 

[47]           Issue 2

            Did Prothonotary Lafrenière err in law in his award of damages for loss of care, guidance and companionship by failing to assess conventional amounts for these damages?

            The applicants submitted that Prothonotary Lafrenière erred in not adopting a conventional approach in assessing damages for loss of care, guidance and companionship and in doing so failed to adhere to the principles of moderation and predictability.

 

[48]           As Prothonotary Lafrenière noted, the Act provides no guidance as to the amount of damages that may be awarded under this section unlike similar provincial legislation that explicitly set out a prescribed amount. Prothonotary Lafrenière found that the legislative provisions of the Province of Ontario bore the closest resemblance to section 6 of the Act both in form and effect. As such, Prothonotary Lafrenière engaged in what is called a case-by-case approach and assessed each individual relationship between the deceased and the claimants in quantifying damages for the loss of care, guidance and companionship. As the Ontario legislative scheme was found to be the most comparable with the one at issue, Prothonotary Lafrenière reviewed a number of cases from that province with similar facts. Prothonotary Lafrenière then assessed the individual relationship in the present case and rendered his awards.

 

[49]           In my opinion, Prothonotary Lafrenière committed no reviewable errors in his assessment of damages for loss of care, guidance and companionship. The approach taken by Prothonotary Lafrenière was one open to him. I agree that the Ontario legislative scheme closely resembles the one at issue in this case. As a result, it was reasonable for Prothonotary Lafrenière to canvass and rely on cases from that province with similar facts. In doing this, Prothonotary Lafrenière did indeed adhere to the principles of predictability and consistency to the extent possible. I also feel it necessary to note that Prothonotary Lafrenière had the advantage of assessing the oral testimony of the witnesses and credibility. As such, his findings regarding the relationships between the deceased and his loved ones are owed a great deal of deference. I see no reason for this Court to interfere with the awards made for loss of care, guidance and companionship.

 

[50]           Issue 3

            Did Prothonotary Lafrenière err in law and substantially misapprehend the evidence as to the determination of the life expectancy of Tina Marie Wilcox and John Wilcox?

            The applicants submitted that Prothonotary Lafrenière committed a reviewable error in failing to award any weight to Dr. Armstrong’s medical reports on the life expectancy of the deceased and Tina Wilcox. It was submitted that the method employed by Dr. Armstrong in reaching his opinion on life expectancy was recently accepted by the Ontario Superior Court of Justice in Rupert, above. As such, the applicants argued that Prothonotary Lafrenière should not have ignored the report merely because it was from the perspective of insurable risk.

 

[51]           It is clear in Prothonotary Lafrenière’s reasons, that his decision to give Dr. Armstrong’s reports no weight was not solely based on the fact that they were from an insurance perspective. With regards to the deceased’s life expectancy, Prothonotary Lafrenière also took issue with the fact that some of the notations made by the deceased’s family doctor, such as shortness of breath and chest pain, were given “undue weight” by Dr. Armstrong in his reports. With regards to Tina Wilcox, Prothonotary Lafrenière took issue with the fact that Dr. Armstrong’s evidence was “unreliable” and his approach was “unbalanced”. Prothonotary Lafrenière appears to have been unpersuaded by Dr. Armstrong’s evidence in part because it failed to take into consideration Tina Wilcox’s strength and drive and past defiance of “numerous predictions by professionals of her imminent death for almost four decades” (Patsy Ann Wilcox, above at paragraph 70).

 

[52]           In my opinion, Rupert, above is distinguishable from the present case. While the Ontario Superior Court of Justice in Rupert, above accepted medical opinion’s on life expectancy from an insurance perspective, issues of undue weight, and unbalanced evidence did not arise in that case as they did in the present one. Given that the insurance perspective of Dr. Armstrong’s reports was not the sole reason for which Prothonotary Lafrenière awarded the reports no weight, I see no reason to interfere with his weighing of the evidence. Fact finders are owed a high degree of deference as they have the opportunity to witness oral testimony first hand. The Prothonotary did not err in this respect.

 

[53]           Issue 4

            Did Prothonotary Lafrenière err in law and substantially misapprehend the evidence as to the assessment of the loss of financial support and loss of valuable services for Patsy Ann Wilcox and for Tina Marie Wilcox?

            The applicants submitted that Prothonotary Lafrenière made a palpable and overriding error when he concluded that the deceased would have worked until age 70, likely earning at least the same employment income as he earned in the three years prior to his death. The applicants also submitted that the award for loss of valuable services was not supported by the evidence.

 

[54]           The evidence before Prothonotary Lafrenière with regards to the deceased’s future length of employment was contradictory. On one hand, the applicants submitted that the normal retirement age of a normal New Brunswick male is 65 years old. The applicants also presented evidence that this number should be reduced due to the deceased’s poor health. On the other hand, the respondent presented evidence of the deceased’s past work experience and habits demonstrating that he was “a motivated man who did not shy away from physical labour” (Patsy Ann Wilcox, above at paragraph 64). Moreover, retirement was also unlikely because of evidence that the deceased had no savings or pension plan. In my opinion, no error was made when Prothonotary Lafrenière found that the deceased would likely have worked to the age of 70. There was evidence before the decision-maker upon which this finding of fact could be made, and I see no reason to interfere with it.

 

[55]           With regards to the likely income from future employment, the evidence before Prothonotary Lafrenière supported the finding that in years just prior to his death, the deceased maintained a somewhat steady income from year to year. The deceased’s income tax information for 2001 to 2003 showed his total earnings as $23,865 in 2001, $25,538 in 2002 and $19,093 in 2003. As such, in my opinion, it was perfectly reasonable for Prothonotary Lafrenière, having already found that the deceased would likely have worked until the age of 70, to also find that he would likely have earned a wage comparable to the years just prior to his death.

 

[56]           And finally, with regards Prothonotary Lafrenière’s award for loss of valuable services, the applicants have failed entirely to convince me that any reviewable error was made in the initial assessment. The applicants are of the opinion that the award is unreasonable given the amount of time Tina Wilcox spends at her school, Vocational Plus and the 40 hours a week Community Services provides of paid care. I note that at paragraph 85 of his decision, Prothonotary Lafrenière clearly took this into consideration when he stated “Were it not for the assistance of professionals provided by the province, the number would have been double, or even triple.” In my opinion, there is no reason to interfere with Prothonotary Lafrenière’s decision as I would reach the same decision.

 

[57]           The applicants’ motion is therefore dismissed, with costs to the respondent in the motion.

 

 

JUDGMENT

 

[58]           IT IS ORDERED that the applicants’ motion is dismissed with costs to the respondent in the motion.

 

 

 

“John A. O’Keefe”

 

 

 

ANNEX

 

Relevant Statutory Provisions

 

The relevant statutory provisions are set out in this section.

 

The Marine Liability Act, 2001 c.6:

 

 

 

 

The Federal Courts Rules, SOR/98-106 :

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-753-05

 

STYLE OF CAUSE:                          PATSY ANN WILCOX

 

                                                            - and -

 

                                                            THE OWNERS AND ALL OTHERS

                                                            INTERESTED IN THE SHIP “MISS MEGAN”

                                                            and GARY ROSS HANLEY

 

PLACE OF HEARING:                    Halifax, Nova Scotia

 

DATE OF HEARING:                      January 10, 2008

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          O’KEEFE J.

 

DATED:                                             April 18, 2008

 

 

APPEARANCES:

 

James C. Crocco	FOR THE PLAINTIFF (RESPONDENT IN MOTION)
Wylie Spicer, Q.C. Rémy M. Boudreau	FOR THE DEFENDANTS (APPLICANTS IN MOTION)

 

SOLICITORS OF RECORD:

 

Crocco Hunter Woodstock, New Brunswick	FOR THE PLAINTIFF (RESPONDENT IN MOTION)
McInnes Cooper Saint John, New Brunswick	FOR THE DEFENDANTS (APPLICANTS IN MOTION)