Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Damages ‑‑ Personal injury ‑‑ Management or investment counselling fees ‑‑ Defendant to take plaintiff as found ‑‑ Recovery of such fees question of fact ‑‑ Plaintiff to prove management assistance or investment advice necessary and cost of such services.
APPEAL from a judgment of the British Columbia Court of Appeal (1986), 2 B.C.L.R. 344, 28 D.L.R. (4th) 677, allowing in part an appeal from a judgment of McLachlin J. Appeal dismissed.
Walley P. Lightbody, Q.C., and M. K. Perras, for the appellant.
William S. Berardino, Q.C., for the respondent Clark Mandzuk.
The judgment of the Court was delivered orally by
1. The Chief Justice‑‑We will not be calling upon you, Mr. Berardino. We have reached a unanimous conclusion, and judgment of the Court will be delivered by Mr. Justice Sopinka.
2. Sopinka J.‑‑We are all of the opinion that the appeal should be dismissed. The issue in this appeal is whether or not in serious personal injury cases an amount for an investment counselling fee should be awarded to the plaintiff. This is essentially a question of fact in each case. The only principle that appears to be applicable is that the defendant must take the plaintiff as he finds him, including his state of intelligence. Whether this is low by reason of the injuries complained of or its natural state, a management fee or an investment counselling fee should be awarded if the plaintiff's level of intelligence is such that he is either unable to manage his affairs or lacks the acumen to invest funds awarded for future care so as to produce the requisite rate of return.
3. In this case, we are of the opinion that the learned trial judge did not address the matter on this basis. In finding that the plaintiff was capable of managing his affairs, Her Ladyship appeared to tie this to the lack of mental impairment. The question of the plaintiff's ability to invest was not specifically addressed.
4. The Court of Appeal found as a fact that the plaintiff would require investment advice and awarded a figure of $40,000. While we are of the opinion that this might be somewhat high and may have included some management fee, it is not sufficiently high for this Court to interfere. We are of the opinion that the Court of Appeal did the best it could with the factual background with which it had been provided on this issue.
5. A plaintiff seeking to recover either a management fee or an investment counselling fee should provide a factual basis to the trier of fact, including:
(i) evidence that management assistance is in fact necessary;
(ii) evidence that investment advice is in fact necessary in the circumstances;
(iii) evidence as to the cost of such services.
6. In the result, therefore, the appeal is dismissed with costs.
Judgment accordingly.
Solicitor for the appellant: Ray Connell, Vancouver.
Solicitors for the respondent Clark Mandzuk: Russell & DuMoulin, Vancouver.
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