Bernard v. Mosher, (1995) 136 Nfld. & P.E.I.R. 259 (PEITD)

• Judge: Matheson, J.
• Case Date: April 25, 1995
• Jurisdiction: Prince Edward Island
• Citations: (1995), 136 Nfld. & P.E.I.R. 259 (PEITD)

Bernard v. Mosher (1995), 136 Nfld. & P.E.I.R. 259 (PEITD);

    423 A.P.R. 259

MLB headnote and full text

Wayne Bernard and Doris Bernard, Administrators of the Estate of Leiana Bernard (plaintiffs) v. Robert Mosher (defendant)

(No. GSS-3058)

Indexed As: Bernard v. Mosher

Prince Edward Island Supreme Court

Trial Division

Matheson, J.

December 21, 1995.

Summary:

The Bernards' daughter died in a motor vehicle accident on May 2, 1992. The Bernards, administrators of their daughter's estate, claimed damages under s. 6(3)(c)(the section) of the Fatal Accidents Act (the Act), which was added by amendment on May 6, 1992.

The Prince Edward Island Supreme Court, Trial Division, held that the Bernard's cause of action arose on May 2, 1992 and their rights crystallized on that date, the Bernards could not have claimed damages under s. 6(3)(c) on May 2, 1992, the section was substantive in nature, the presumption against retrospectivity applied, and there was nothing in the amendment or the Act itself which showed that it was intended to be applied retrospectively.

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective operation - The Bernards' daughter died in a motor vehicle accident on May 2, 1992 - The Bernards, administrators of their daughter's estate, claimed damages under s. 6(3)(c)(the section) of the Fatal Accidents Act (the Act), which was added by amendment on May 6, 1992 - The Prince Edward Island Supreme Court, Trial Divi­sion, held that the Bernard's cause of action arose on May 2, 1992 and their rights crystallized on that date, the Bernards could not have claimed damages under s. 6(3)(c) on May 2, 1992, the sec­tion was substantive in nature, the pre­sumption against retrospec­tivity applied, and there was nothing in the amendment or the Act itself which showed that it was intended to be applied retrospectively.

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See Statutes - Topic 2272 ].

Cases Noticed:

Angus v. Hart, Angus and Sun Alliance Insurance Co. (1988), 87 N.R. 200; 30 O.A.C. 210; 34 C.C.L.I. 237 (S.C.C.), refd to. [paras. 6, 13].

Mason v. Peters (1982), 39 O.R.(2d) 27 (C.A.), refd to. [paras. 8, 9].

Atkinson v. Whiting (1987), 79 N.S.R.(2d) 189; 196 A.P.R. 189 (T.D.), refd to. [para. 10].

MacIsaac and MacIsaac v. Smith and Thomas (1987), 20 O.A.C. 241; 58 O.R.(2d) 289 (Div. Ct.), refd to. [paras. 14, 21].

Barry and Brosseau v. Alberta Securities Commission (1989), 93 N.R. 1; 96 A.R. 241; 57 D.L.R.(4th) 458 (S.C.C.), refd to. [paras. 15, 17].

Royal Canadian Mounted Police Act, Re (1990), 123 N.R. 120 (F.C.A.), refd to. [para. 17].

Hopfe v. Canadian Pacific Railway, [1922] 1 W.W.R. 491; 66 D.L.R. 317 (Alta. C.A.), refd to. [para. 19].

Trites, Re, [1954] 2 D.L.R. 523 (N.B.C.A.), refd to. [para. 19].

Barthelmes, Re (1971), 32 D.L.R.(3d) 325 (Ont. H.C.), dist. [para. 23].

Streight v. Smith (1976), 1 B.C.L.R. 181 (S.C.), dist. [para. 27].

Molley, Re; Lainson v. Molley, [1975] 1 W.W.R. 727 (B.C.S.C.), dist. [para. 27].

Lainson v. Molley - see Molley, Re; Lainson v. Molley.

Statutes Noticed:

Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5, sect. 6(3)(c) [para. 1 et seq.].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), generally [paras. 16, 17].

Counsel:

Benjamin Taylor, Q.C., for the plaintiff;

Gregory A. Cann, for the defendant.

This action was heard on April 25, 1995, by Matheson, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following decision on Decem­ber 21, 1995.