Claims for damages arising from wrongful death accidents are brought under the Family Compensation Act, a statute in much need of reform.

 

GENERAL PRINCIPLES of LAW / VARIOUS HEADS of DAMAGES THAT CAN BE CLAIMED FOR

 

In Haczewski v. British Columbia, the Plaintiff was killed in a motor vehicle accident when struck by a speeding police cruiser. The Plaintiff’s widow, and the Plaintiff’s parents, brought a claim for damages for wrongful death under the Family Compensation Act. The Court awarded damages to both the widow of the Plaintiff, and to the parents of the Plaintiff, however far more damages were awarded to the widow. The types of damages claimed were loss of past and future support, both financial and for household services; income tax gross up and management fees; loss of love, guidance and affection; special damages; and interest pursuant to the Court Order Interest Act.

 

[75]         The leading case for the assessment of damages in fatal accident cases in this province is Ruiz v. Bouaziz, 2001 BCCA 207, where the Court of Appeal said this:

 

[53]      [Skelding v. Skelding (1994), 95 B.C.L.R. (2d) 201 (C.A.)] supports the proposition that the normal tort measure of damages is to apply to fatal accident cases as it does to non-fatal accident cases. The basic principle is that the injured person is to be compensated for the full amount of his actual loss and no more, as Gibbs J.A explained at para. 18:

 

It may be that what has led to confusion in the reported judgments which do not apply the tort principles clarified in Ratych v. Bloomer [(1990), 69 D.L.R. (4th) 25 (S.C.C.)] is a failure to distinguish between the right to be compensated for loss and the kind of loss which will be compensable. Where the injured person survives, the loss is customarily classified into the separate heads of non-pecuniary, lost wages past and future, future care and the like. Whereas, when the injured party does not survive, the loss for which the claimants are entitled to be compensated is, as Dickson J. said in Keizer v. Hanna the amount which will provide at least the equal of what might have been expected to have been provided by the deceased person but for the accident. The assessment of the appropriate amount is to be “neither punitive nor influenced by sentimentality. It is largely an exercise of business judgment.”

 

[54]      In summary, in a family compensation claim, family members may claim damages proportioned to the pecuniary loss they suffered as a result of the loss of a relationship with a loved one. The loss of anticipated benefit that must be compensated has been called globally “dependency” and it must be assessed by the exercise of “business judgment.”

 

[55]      A precise formula for exercising that business judgment has proven elusive. Innumerable authorities have considered how to approach the assessment of the loss of dependency. Many were cited to us. One of the most succinct statements of the basis for awarding compensation under fatal accident legislation is that of Cartwright J. in Proctor v. Dyck, [1953] 1 S.C.R. 244 at 249:

 

To entitle a claimant to damages under the Fatal Accidents Act it is not essential that he should have been financially dependent upon the deceased or that the deceased should have been under any legal liability to provide for him or that he should have enjoyed any benefits from the deceased in his lifetime. It is sufficient if it is shown that the claimant had a reasonable expectation of deriving pecuniary advantage from the deceased’s remaining alive which has been disappointed by his death.

 

[56]      The legal goal, then, is to ascertain the true value of the pecuniary advantage each claimant lost because Mrs. Ruiz did not remain alive.

 

See also McVea v. T.B., 2002 BCSC 1407 and James v. Gillis, 2011 BCSC 826.

 

In Ulmer v. Weidemann, the Plaintiff’s husband was killed as a motorcyclist in a collision with a motor vehicle, and consequently brought a claim under the Family Compensation Act for damages. The Plaintiff also made a claim for nervous shock as a result of witnessing her husband laying bleeding on the roadway, and as a result of seeing him pass away in the hospital. The Plaintiff’s two adult children also made claims under the Family Compensation Act. The accident occurred when the Plaintiff’s husband struck a left turning vehicle. Counsel for the Defendants conceded some degree of liability, but argued that the Plaintiff’s husband should also bear some of the blame. The Court ruled that the Defendants were fully liable for the accident.

 

With respect to the claims under the Family Compensation Act, several claims were made : loss of economic dependency, loss of household services, loss of future capacity of the Plaintiff to earn income, and loss of care and guidance and loss of inheritance for the children. Although the economic dependency head of damage was left to be determined, and nothing was awarded for loss of future capacity of the Plaintiff to earn income, and loss of care and guidance and loss of inheritance for the children, $250,000.00 was awarded for loss of household services.

 

[363]      I agree with plaintiff’s counsel that the entire process of assessing the value of the loss of household services is somewhat arbitrary because no one has determined in the past with any accuracy what Mr. Ulmer’s hours of household services were, to include outside services, and no one knows what he would have done in the future.

 

[364]      I agree, however, looking at the photographs of the exterior grounds of the home and listening to the evidence of the effort and accomplishments of Mr. Ulmer around the home, that the quality of his efforts should be considered as beyond the statistical average as should the amount of time that he was spending.

 

[365]      However, I am not prepared to consider the quality of Mr. Ulmer’s work as being worth twice the statistical average hourly rate while at the same time I am not prepared to apply much of a contingency for Mr. Crowie’s expected contribution when it is so uncertain whether the relationship will continue.

 

[366]      Considering all of the evidence and all of the considerations involved in assessing this claim and preferring Mr. Carson’s method of calculation over Mr. Hildebrand’s method, I assess the value of this claim at $250,000.

 

In Morrison v Moore, the Plaintiffs brought a wrongful death claim under the Family Compensation Act. The father of four children had dropped them off at school, and upon returning home on foot, was struck and killed by a vehicle. There was no issue as to liability.

 

[3]               This action is a claim for damages under the Family Compensation Act. Under the Act, family members of the deceased may claim damages proportioned to the pecuniary loss they suffered as a result of the loss of their relationship with the loved one. The award is only for quantifiable financial loss to the survivors. There is no award for grief: Ruiz v. Bouaziz, 2001 BCCA 207.

 

[4]          The plaintiffs are the deceased’s spouse, Mrs. Morrison, and his four children.

 

[5]          The claims made by the plaintiffs fall into the following categories:

 

1)         loss of financial support;
2)         loss of household and childcare services;
3)         loss of care, guidance, and affection;
4)         loss of inheritance;
5)         special damages (out-of-pocket expenses incurred resulting from the death).

 

[7]               The major issue between the parties is with respect to the assessment of loss of financial support. Although Bill Morrison had not worked in paid employment for more than four years prior to his death, the position of the plaintiffs is that at the time of his death he would soon have returned to paid employment and would have earned a good income for the next fourteen and one-half years until his retirement at age 65. The defendant says that his earnings would have been modest at best.

 

[30]           In Johnson v. Carter, 2007 BCSC 622 (CanLII), 2007 BCSC 622, Slade J. of this Court commented upon the appropriate methodology for calculating the loss of financial support, as follows, at paras. 106-107:

 

The conventional approach to determining an award for loss of future earnings is as follows:

 

1.         A calculation is made of the income which has been lost up to the date of the trial.

2.         A calculation is made of the loss of future earnings.

3.         A reduction is then made for personal consumption of the deceased.

4.         Contingencies are reviewed to determine if a further reduction is required.

 

[Cogar Estate v. Central Mountain Air Services Ltd. 1992 CanLII 1611 (BC CA), (1992), 72 B.C.L.R. (2d) 292 (C.A.)]

 

Loss of support, like loss of future earning capacity, involves an inquiry into the unknowable:

 

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

[Rosvold v. Dunlop 2001 BCCA 1 (CanLII), (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 9]

 

[31]           Contingencies may be either positive or negative: Keizer at 351; Brown at paras. 18-20.

 

[32]           With respect to the question of what would have happened during the period after the death and before the trial, the same principles apply: see Smith v. Knudsen, 2004 BCCA 613 (CanLII), 2004 BCCA 613, where Rowles J.A. stated, at para. 29:

 

What would have happened in the past but for the injury is no more “knowable” than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events.

 

[33]           The issues to be decided are the appropriate amounts of awards for:

 

1)         Past and future loss of financial support
2)         Past and future loss of household services
3)         Loss of care and guidance for the four children
4)         Loss of inheritance
5)         Income tax gross-up
6)         Public Guardian and Trustee Fees.

 

The Court would go on to award damages for each category, with a global amount for all Plaintiffs of about $700,000.

 

SPOUSAL COMPANIONSHIP

 

In NN, DN, and MEN v ICBC, the arbitrator ruled on the issue of loss of spousal companionship in a wrongful death matter. While acknowledging that there is a prohibition on such a claim, the arbitrator ruled that the prohibition does not extend to “services”, and awarded $35,000 in this respect.

 

52.   This case helps to clarify that it is the “services” aspect of the deceased’s conduct that is compensable.  It does not mater that the service is motivated by love and affection for a spouse.  Household services are also motivated by care and affections.  The replacement of them is clearly compensable.  Mrs. N’s claim is for compensation services, not merely the loss of companionship.  In Bianco Estate the claim was for loss of companionship only.  The plaintiffs were seeking an “at large” lump sum award.  Hence, the issue as to whether the award was pecuniary or non-pecuniary.  There was no attempt in  that case to attach an economic value or cost to the lost services aspect of companionship.  The judgement at paragraph 12 seems to leave open the possibility of a compensable claim where substitute or replacement services result in an actual pecuniary loss.

 

53.  It seems to me that one aspect of Mr. N’s companionship is the loss to Mrs. N., in terms of the pleasure and comfort that derives from the continuing association with a long time friend and spouse.  That loss is irreplaceable; no economic value can be attached to it and it is not compensable.  That is the solatium aspect.  But another aspect of MR. N’s companionship is the loss to Mrs. N. of having someone to take her out of the Lodge on a daily basis; to encourage and facilitate her maintaining mobility as long as possible; to provide a ‘break’ from the institution; to provide an opportunity to supplement her food intake; and to provide social stimulation to the extent she is able to participate in it.  This is a loss that can be provided by substitute services….There is certainly a health and medical benefit aspect to these services.

 

DEFINITION OF “SPOUSE”

 

“Spouse”, in the context of wrongful death claims, is defined in section 1 of the Family Compensation Act.

 

In James v Gillis, the Plaintiff sought damages under the Family Compensation Act, claiming he was the “spouse” of the deceased person, even though he was not married at the time of the accident. ICBC denied the claim. The Court found in favor of the Plaintiff, ruling that he had indeed lived in a “marriage like relationship” with the deceased.

 

[52]       The law with regard to the effect of separations on the determination of the continuity of a relationship is set out in Kirk v. Hackl, 2006 SKQB 526 (CanLII), 2006 SKQB 526 at paras. 29-30:

 

[29]      The law is well settled that the word “continuously” is not [to] be interpreted as without interruption. That is, a relationship can be interrupted by separations that do not necessarily amount to withdrawal from the relationship or termination of consortium for the purposes of the statutory definitions. To bring cohabitation to an end, there must be a physical withdrawal with intent to end the relationship. A brief cooling off period may not convincingly show a settled state of mind that cohabitation has terminated. However, where there is separation, the onus is on the applicant to prove that neither party intended that the separation be permanent. In the end, the Court must assess the effects of temporary separation by identifying the intention of the parties at the time. See Bryant v. Bryant, 2005 SKQB 298 (CanLII), 2005 SKQB 298, 266 Sask.R. 98; Taman v. Taman, supra; and McDonald v. Stone, 2004 SKQB 69 (CanLII), 2004 SKQB 69, 246 Sask.R. 310.

 

[30]      The decision of Boothe v. Gore (1996), 20 O.T.C. 207 (Ont. Gen. Div.), (followed by McIntyre J. in Bryant v. Bryant, supra) is instructive. Desmarais J. stated:

 

[10]  The law in Ontario recognizes that a man and a woman are considered to have continuously cohabited, despite that while living together, there might have been separations for varying periods of time before reconciling. Cohabitation does not terminate until either party regards it as being at an end, and, demonstrate convincingly that this is the party’s intent. A brief cooling off period does not convincingly show a settled state of mind that cohabitation has terminated.

 

[11]  “Cohabit” means to live in a “marriage like” relationship and, in order to bring it to an end, there must be a physical withdrawal together with an intention to end the relationship. When a temporary separation is no more than a period of reflection and reassessment, and there is no termination of the “consortium”, the cohabitation is considered to be continuous.

 

[12]  In an application for support by an unmarried “spouse”, the onus is on the applicant to establish the existence of cohabitation over the requisite period of time and, if there is a break in continuity due to separation, the burden remains on the applicant to prove that there was no intention that the separation be permanent.

 

[13]  The effects of temporary separations depends on the intention of the parties. When one party leaves the other and provides an objective basis to believe that they do not intend to resume cohabitation and the separation lasts for a meaningful period of time, the period of cohabitation could well have been interrupted.

 

[53]      In order to determine whether Mr. Cornet is a spouse within the meaning of the Family Compensation Act, it must be determined when the relationship commenced, whether it was a marriage-like relationship, whether the separations ended the relationship, and if so, when the relationship ended.

 

[92]         Ms. James and Mr. Cornet commenced cohabitation or living together in a marriage-like relationship on or about September 1, 2003. Their separations in October, 2004 and July, 2005 did not end the relationship. The relationship ended when they separated in January, 2006. At that time they both had an intent to end the relationship. I therefore find that the test in the Family Compensation Act is met as Mr. Cornet was a spouse within that definition for two years, from September 2003 to January 2006, and the relationship ended not earlier than one year prior to Ms. James’ death.