Bush v. Air Canada, (1992) 109 N.S.R.(2d) 91 (CA)

• Judge: Hallett, Chipman and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 14, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 109 N.S.R.(2d) 91 (CA);1992 CanLII 2566 (NS CA);[1999] CarswellNS 569;[1992] NSJ No 17 (QL);109 NSR (2d) 91

Bush v. Air Can. (1992), 109 N.S.R.(2d) 91 (CA);

  297 A.P.R. 91

MLB headnote and full text

Air Canada (appellant) v. Hazel M. Bush (respondent)

(S.C.A. No. 02497)

Indexed As: Bush v. Air Canada

Nova Scotia Supreme Court

Appeal Division

Hallett, Chipman and Freeman, JJ.A.

January 14, 1992.

Summary:

Bush brought an action for damages for injuries suffered while making an emergency exit down a chute from an Air Canada plane. Air Canada admitted liability.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 103 N.S.R.(2d) 308; 282 A.P.R. 308, assessed damages accordingly. Air Canada appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal in part.

Damages - Topic 1415

Special damages - Lost income - Evi­dence and proof - An injured plaintiff was awarded damages for lost past and future income on the basis of her earning $6,250/year - There was no evidence to support such a high amount - The Nova Scotia Court of Appeal reduced the basis for calculating damages to a realistic esti­mate of $3,500/year - The court stated that lost earnings were special damages that must be pleaded and proved - See para­graphs 10 to 19.

Damages - Topic 1630

General damages - Considerations in assessing - Loss of income - Effect of unreported income - The plaintiff lost past wages due to injury - The plaintiff's income tax returns for the relevant years claimed no income or income less than she now claimed she lost - The trial judge allowed the claim for lost wages in excess of the reported income where (1) the plaintiff was likely not taxable in those years; (2) if she was taxable, it was a technical breach of the Income Tax Act (no dishonesty); and (3) her husband looked after her returns and she did not even understand the requirement to file them - The Nova Scotia Court of Appeal stated that in these exceptional circum­stances the plaintiff was not barred on public policy grounds from claiming lost income in excess of her reported income - See paragraphs 20 to 29.

Damages - Topic 1630

General damages - Considerations in assessing - Loss of income - Effect of unreported income - The Nova Scotia Court of Appeal rejected an absolute rule that as a matter of policy a court should disallow a claim for lost income in excess of amounts declared by the plaintiff in income tax returns - The court stated that the correct approach was that evidence of income in an income tax return was strong prima facie evidence against a claimant who would contend that his income was in fact higher - See paragraphs 20 to 29.

Equity - Topic 1483

Equitable principles respecting relief - Clean hands doctrine - Prohibition against profiting from own wrong - [See second Damages - Topic 1630 ].

Interest - Topic 5009

Interest as damages - Prejudgment interest -­ Calculation of - Inflation - A plaintiff injured in 1984 received damages in 1991 dollars, with interest at the commercial rate of 10% from 1987 - The defendant sub­mitted that the commercial rate contained a large inflationary com­ponent doubly compensating the plaintiff for inflation - The Nova Scotia Court of Appeal stated that "to the extent that in­flation was taken into account for the period between the accrual of the cause of action and the trial, the judge should then adjust the interest rate ..." - The court affirmed 10% interest where the plaintiff was not adequately compensated for in­flation in the award - See paragraphs 36 to 62.

Interest - Topic 5525

Interest as damages - Prejudgment interest - Bars - Delay - The Nova Scotia Court of Appeal stated that undue delay in pros­ecuting an action was a factor to be con­sidered by a trial judge in exercising his discretion in reducing the time period for which prejudgment interest was to be paid - See paragraph 38.

Cases Noticed:

Paulse v. Neville et al. (1977), 12 Nfld. & P.E.I.R. 223; 25 A.P.R. 223 (Nfld. C.A.), refd to. [para. 18].

Frenette v. Audet (1988), 89 N.B.R.(2d) 306; 226 A.P.R. 306 (C.A.), refd to. [para. 22].

Major v. Canadian Pacific Railway Co. (1922), 64 S.C.R. 367, refd to. [para. 22].

Napier v. National Business Agency Ltd., [1951] 2 All E.R. 264, refd to. [para. 22].

Lewis v. Williams (1990), 111 N.B.R.(2d) 284; 277 A.P.R. 284 (Q.B.), refd to. [para. 23].

Hachey v. Dakin, Kempt and Canadian Provincial Insurance Co. (1983), 57 N.S.R.(2d) 441; 120 A.P.R. 441 (T.D.), refd to. [para. 24].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257, refd to. [para. 33].

Melnychuk v. Moore and Associated Beer Distributors Ltd., [1989] 6 W.W.R. 367; 57 Man.R.(2d) 174 (C.A.), refd to. [para. 43].

Leischner v. West Kootenay Power & Light Company (1986), 24 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 43].

Gaudet v. Doucet (1991), 101 N.S.R.(2d) 309; 275 A.P.R. 309 (T.D.), refd to. [para. 49].

Pickett v. British Rail and Engineering Ltd., [1980] A.C. 136, refd to. [para. 49].

Wright v. British Railways Board, [1983] 2 A.C. 773, refd to. [para. 50].

Borland v. Muttersbach (1985), 12 O.A.C. 84; 23 D.L.R.(4th) 664 (C.A.), refd to. [para. 51].

Gallant v. Oickle (1984), 63 N.S.R.(2d) 91; 141 A.P.R. 91 (C.A.), refd to. [para. 61].

Statutes Noticed:

Civil Procedure Rule (N.S.), rule 31.10(2) [para. 41].

Judicature Act, R.S.N.S. 1989, c. 40, sect. 41(i), sect. 41(k) [para. 37].

Counsel:

Brian W. Downie and Daniel W. Ingersoll, for the appellant;

Derrick J. Kimball and H. Heidi Foshay Kimball, for the respondent.

This appeal was heard on December 13, 1991, before Hallett, Chipman and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 14, 1992, Chipman, J.A., delivered the following judgment for the Court of Appeal.