Beljanski v. Smithwick et al., (2006) 230 B.C.A.C. 224 (CA)

• Judge: Newbury, Hall and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 16, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 230 B.C.A.C. 224 (CA);2006 BCCA 399

Beljanski v. Smithwick (2006), 230 B.C.A.C. 224 (CA);

    380 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. SE.011

Tanesha Kathleen Beljanski, Lucas Geoffrey Beljanski, both infants by their Guardian Ad Litem Tika Lynn Beljanski (appellants/plaintiffs) v. Kyla Rae Smithwick, Tamara Kim Smithwick and Financialinx Corporation/Corporation Credilinx (respondents/defendants)

(CA033197; 2006 BCCA 399)

Indexed As: Beljanski v. Smithwick et al.

British Columbia Court of Appeal

Newbury, Hall and Mackenzie, JJ.A.

September 14, 2006.

Summary:

Dorey had numerous criminal and narcotic convictions including property offences. He was killed in a car accident. Dorey's children sought damages for loss of his guidance, companionship, support and household assistance and their inheritance. The defendants applied to dismiss the action.

The British Columbia Supreme Court dismissed the action. The plaintiffs appealed.

The British Columbia Court of Appeal allowed the appeal in part.

Damage Awards - Topic 80

Injury and death - Wrongful death and fatal accidents - Father - [See Torts - Topic 6995 ].

Damage Awards - Topic 97

Injury and death - Wrongful death and fatal accidents - Loss of guidance, care and companionship - [See Torts - Topic 6995 ].

Damages - Topic 2377

Torts causing death - Particular damage claims - Loss of parent's guidance and support - [See Torts - Topic 6995 ].

Damages - Topic 2381

Torts causing death - Particular damage claims - Loss of prospective inheritance - [See Torts - Topic 6995 ].

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income (incl. lost years claim) - [See Torts - Topic 6995 ].

Torts - Topic 6995

Defences - Ex turpi causa non oritur actio - Dorey, age 26, had numerous criminal and narcotic convictions - He was killed in a car accident - The driver admitted negligence - Dorey's children sought damages for loss of his guidance, companionship, support and household assistance and their inheritance - The defendants applied to dismiss the action, submitting that the children would not have had any reasonable expectation of financial benefit or guidance from Dorey - The plaintiffs admitted that ex turpi causa applied - The trial court dismissed the action, concluding that Dorey had been a "career criminal" with little hope for reform - On appeal, the plaintiffs sought to withdraw their concession - The British Columbia Court of Appeal allowed the appeal in part - The concession was proper - Ex turpi causa precluded recovery where damages replaced sums derived from proceeds of crime - The plaintiffs were not entitled to damages for loss of past and future financial support - However, it was reasonable to expect that Dorey might have reformed and, while he was not a diligent parent, he did have some contact with the children - The court awarded each child $10,000 for loss of parental guidance and $5,000 for loss of inheritance - See paragraphs 24 to 37.

Cases Noticed:

Burns v. Edman, [1970] 1 All E.R. 886 (Q.B.), refd to. [para. 10].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 10].

Ruiz et al. v. Mount Saint Joseph Hospital et al. (2001), 150 B.C.A.C. 161; 245 W.A.C. 161; 2001 BCCA 207, refd to. [para. 15].

Proctor v. Dyck, [1953] 1 S.C.R. 244, refd to. [para. 15].

Skelding et al. v. Skelding (1994), 90 B.C.A.C. 81; 147 W.A.C. 81; 95 B.C.L.R.(2d) 201 (C.A.), refd to. [para. 16].

Collins (Guardian ad litem of) v. Savovich (1996), 20 B.C.L.R.(3d) 126 (S.C.), refd to. [para. 18].

Kovats v. Ogilvie, [1971] 1 W.W.R. 561 (B.C.C.A.), refd to. [para. 20].

Balmer Estate v. Hrehirchuk et al., [1998] B.C.T.C. Uned. I11 (S.C.), refd to. [para. 23].

St. Lawrence & Ottawa Railway v. Lett (1885), 11 S.C.R. 422, refd to. [para. 23].

Grand Trunk Railway Co. of Canada v. Jennings (1888), 13 App. Cas. 800 (P.C.), refd to. [para. 23].

Vana v. Tosta, [1968] S.C.R. 71, refd to. [para. 23].

Authors and Works Noticed:

Glofcheski, R., Plaintiff's Illegality as a Bar to Recovery of Personal Injury Damages (1999), 19 Legal Studies 6, pp. 17 to 18 [para. 14].

Counsel:

B.D. Sutton, for the appellants;

P.J. Armstrong and C.J. Hope, for the respondents.

This appeal was heard on May 16, 2006, at Vancouver, British Columbia, with written submissions received on June 19 and 22, 2006, by Newbury, Hall and Mackenzie, JJ.A., of the British Columbia Court of Appeal. The decision of the Court was delivered on September 14, 2006, and the following written reasons were filed:

Newbury, J.A., dissenting in part - see paragraphs 1 to 23;

Hall, J.A. (MacKenzie, J.A., concurring) - see paragraphs 24 to 37.