Campbell-MacIsaac et al. v. Deveaux et al., 2003 NSSC 111

• Judge: Gruchy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 28, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSSC 111;(2003), 214 N.S.R.(2d) 129 (SC)

Campbell-MacIsaac v. Deveaux (2003), 214 N.S.R.(2d) 129 (SC);

 671 A.P.R. 129

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. MY.031

Kathryn M. Campbell-MacIsaac, Ronald MacIsaac, Chanelle Campbell MacIsaac and Kielly Carlyn MacIsaac (plaintiffs) v. Lisa Deveaux and Lombard Insurance Company (defendants)

(S.H. 127233; 2003 NSSC 111)

Indexed As: Campbell-MacIsaac et al. v. Deveaux et al.

Nova Scotia Supreme Court

Gruchy, J.

May 15, 2003.

Summary:

A 51 year old dentist severely injured her ankle in a motor vehicle accident caused by the defendant's negligence. The resulting permanent partial disability forced her to sell her dental practice and she lost her licence to practice dentistry. The plaintiff sued the defendant for damages for personal injuries. The plaintiff also sued her own insurer (Lombard) on a "Family Protection Endorsement", which insured her against an "inadequately insured motorist". At issue was the scope of that coverage, particularly whether the insurer could deduct the future stream of disability benefits that the plaintiff might receive from her disability insurer (Canada Life).

The Nova Scotia Supreme Court allowed the action and assessed damages accordingly. The defendant insurer was liable under the "Family Protection Endorsement", with no right to deduct future disability payments.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - In 1995, the now 51 year old plaintiff suffered a severe compound fracture of her ankle - Following a long convalescence and two fusion surgeries, the plaintiff was left with a permanent partial disability - She was forced to abandon her career as a dentist and sell her practice - Her physical capabilities were severely limited by pain and the loss of mobility in her fused ankle and foot - The Nova Scotia Supreme Court awarded the plaintiff $100,000 general damages for nonpecuniary loss - See paragraphs 157 to 165.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - A highly successful dentist (now aged 51) was forced to abandon her career and sell her practice after suffering a severely disabling ankle fracture - The plaintiff advanced personal funds to keep the practice going while she convalesced - When she finally sold the practice, she was forced to sell it at a distressed value - She paid $24,000 in severance to employees - The Nova Scotia Supreme Court awarded the dentist $115,000 for her loss on the sale of the practice, $1,412,000 for lost past income, $2,047,750 for loss of future earning capacity to age 65 and $24,000 for the severance paid (which was reasonable) - The court declined to award damages for personal monies injected into the practice, because such claim was redundant where the plaintiff claimed a loss based on the earnings of the business - See paragraphs 91 to 150.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 492 ].

Damage Awards - Topic 580

Torts - Injury to third parties - General and special damages for personal care of injured person - In 1995, the now 51 year old plaintiff suffered a severe compound fracture of her ankle - Following a long convalescence and two fusion surgeries, the plaintiff was left with a permanent partial disability - She was forced to abandon her career as a dentist and sell her practice - Her physical capabilities were severely limited by pain and the loss of mobility in her fused ankle and foot - The Nova Scotia Supreme Court awarded the plaintiff's husband $50,000 general damages for personal care of the plaintiff - See paragraphs 238 to 246.

Damages - Topic 203

Entitlement - Loss by plaintiff's corporation - The plaintiff dentist, by way of a management company/family trust, transferred some of her professional income through the management company to the trust for her children's education and for tax avoidance purposes - The arrangement, regardless of share ownership, was subject to cancellation or asset starvation by the plaintiff - The defendant submitted that the plaintiff had no claim for any loss by the management company, as she did not have any legal or beneficial interest in the shares and was not entitled to any of its profits - The Nova Scotia Supreme Court rejected the submission - The losses of revenue and income suffered by the plaintiff were real and tangible - Her claim was not defeated by the existence of the management company - See paragraphs 76 to 82.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - A now 51 year old dentist suffered a disabling ankle injury in 1995, forcing her to abandon her career and sell her practice - Her physical capabilities were severely limited by pain and the loss of mobility in her fused ankle and foot - The defendant insurer submitted that the dentist failed to mitigate her loss by pursuing certain educational and employment options (such as obtaining an MBA) - The Nova Scotia Supreme Court held that the defendant failed to prove a failure to mitigate - The options suggested by the defendant were areas in which the dentist had no interest or aptitude - The failure to pursue such options was not an unreasonable failure to mitigate - See paragraphs 166 to 185.

Damages - Topic 1531

General damages - Elements of general damages - Losses of plaintiff's corporation or business - [See Damage Awards - Topic 492 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - A now 51 year old dentist was forced to sell her practice and unable to return to dentistry because of a severe ankle injury - At issue in assessing damages for past lost income and future loss of earning capacity was when the dentist would have retired (age 65 or before) - The Nova Scotia Supreme Court, in using age 65 as the most reasonable retirement age, agreed with the following statement: "While I accept the fact that some people do retire before the normal retirement age of 65, I see nothing in this case to make me find that the plaintiff would retire before the normal retirement age. A person's decision to retire is affected by many factors and is constantly changing depending on a person's personal situation. I believe it is reasonable to accept a normal retirement age unless there is some evidence which would indicate that a particular plaintiff would not work until that age." - See paragraphs 104 to 112.

Damages - Topic 1558

General damages - General damages for personal injury - Calculation and method of assessment - Evidence and actuarial evidence - The Nova Scotia Supreme Court, in assessing general damages for loss of future earning capacity, discussed the use of and reliance on actuarial evidence - See paragraphs 139 to 141.

Damages - Topic 1569

General damages - General damages for personal injury - Business loss - [See Damage Awards - Topic 492 ].

Damages - Topic 1746

Deductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits (incl. disability) - The plaintiff's damages exceeded the limit of the defendant's insurance coverage - The plaintiff's own insurer (Lombard) provided a "Family Protection Endorsement" (S.E.F. No. 44) which provided underinsured motorist coverage up to $2 Million - An umbrella policy increased that coverage by a further $4 Million - The plaintiff also received $5,400 per month disability benefits from Canada Life - Lombard sought to deduct from the S.E.F. No. 44 benefits the present value of the future stream of disability benefits the plaintiff might receive from Canada Life - The Nova Scotia Supreme Court held that disability benefits from a private insurer were not deductible from the damage award - Lombard's claim was a claim against a collateral benefit and would contractually abrogate the common law rule of non-deductibility of private insurance - Clear and unequivocal language, which was not present, was needed to abrogate that rule - See paragraphs 186 to 237.

Damages - Topic 1749

Deductions for payments or assistance by third parties - Contractually - Insurance - Future benefits - [See Damages - Topic 1746 ].

Insurance - Topic 4103

Automobile insurance - Uninsured or underinsured motorist coverage - Extent of coverage - [See Damages - Topic 1746 ].

Insurance - Topic 4110.1

Automobile insurance - Uninsured or underinsured motorist coverage - Deductions - [See Damages - Topic 1746 ].

Cases Noticed:

Scotia Fuels Ltd. v. Lewis (1991), 102 N.S.R.(2d) 12; 279 A.P.R. 12 (S.C.), refd to. [para. 67].

Robertson v. Halley (1972), 3 N.S.R.(2d) 692 (C.A.), refd to. [para. 67].

Avalon Design & Management Ltd. v. Shelburne Shopping Centre Ltd. et al. (1984), 60 N.S.R.(2d) 42; 128 A.P.R. 42 (Co. Ct.), refd to. [para. 67].

Scarlett v. Scarlett (1993), 47 R.F.L.(3d) 130 (B.C.S.C.), refd to. [para. 77].

Kachur v. Kachur (2000), 274 A.R. 323 (Q.B.), refd to. [para. 77].

Rattenbury v. Rattenbury, [2000] B.C.T.C. 326 (S.C.), refd to. [para. 77].

Everett et al. v. King, Park, Pacific Hotels Ltd. et al., [1982] 1 W.W.R. 561 (B.C.S.C.), refd to. [para. 80].

Delange v. Parkinson Estate et al. (1997), 37 O.T.C. 358 (Gen. Div.), refd to. [para. 81].

Wittmeier v. Scholes (1999), 239 A.R. 42 (Q.B.), refd to. [para. 81].

Sandilands et al. v. Edwards (1993), 140 A.R. 161; 11 Alta. L.R.(3d) 22 (Q.B.), refd to. [para. 81].

Van Paassen v. Burch et al. (1994), 159 A.R. 365 (Q.B.), refd to. [para. 81].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 111].

Whitlow v. 572008 Ontario Ltd., [1995] O.J. No. 77 (Gen. Div.), refd to. [para. 111].

MacPhail v. Desrosiers et al. (1997), 166 N.S.R.(2d) 81; 498 A.P.R. 81 (S.C.), refd to. [para. 111].

Gaudet v. Doucet et al. (1991), 101 N.S.R.(2d) 309; 275 A.P.R. 309 (S.C.), refd to. [para. 140].

Poirier v. Dyer and Dyer (1989), 91 N.S.R.(2d) 119; 233 A.P.R. 119 (S.C.), refd to. [para. 141].

Guy v. Trizec Equities Ltd. et al. (1978), 26 N.S.R.(2d) 1; 40 A.P.R. 1; 5 C.C.L.T. 172 (T.D.), refd to. [para. 141].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 141].

Thorton, Tanner et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1976] 5 W.W.R. 240 (B.C.C.A.), refd to. [para. 141].

Mader v. Lahey et al. (1997), 167 N.S.R.(2d) 257; 502 A.P.R. 257 (T.D.), refd to. [para. 157].

Roberts v. Cape Breton Regional Hospital et al. (1997), 162 N.S.R.(2d) 342; 485 A.P.R. 342 (S.C.), refd to. [para. 157].

Teed v. Amero et al. (2001), 195 N.S.R.(2d) 359; 609 A.P.R. 359 (S.C.), refd to. [para. 157].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 160].

Scott v. Moore (1989), 89 N.S.R.(2d) 47; 227 A.P.R. 47 (T.D.), refd to. [para. 162].

Baker v. O'Hanley (2001), 191 N.S.R.(2d) 179; 596 A.P.R. 179 (S.C.), refd to. [para. 162].

Bonnar v. Crane (1997), 162 N.S.R.(2d) 39; 485 A.P.R. 39 (S.C.), refd to. [para. 162].

Dillon v. Kelly (1996), 150 N.S.R.(2d) 102; 436 A.P.R. 102 (C.A.), refd to. [para. 162].

Pascoe v. Ledwich (1979), 2 Man.R.(2d) 71 (C.A.), refd to. [para. 168].

Salmon v. Gurney (1997), 153 Sask.R. 1 (Q.B.), refd to. [para. 169].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 180].

Boarelli v. Flannigan (1973), 36 D.L.R.(3d) 4 (Ont. C.A.), refd to. [para. 198].

Parry v. Cleaver, [1970] A.C. 1, refd to. [para. 200].

Bradburn v. Great Western Railway Co. (1874), 31 L.T.R. 464, refd to. [para. 201].

Ontario v. Jennings, [1966] S.C.R. 532; 57 D.L.R.(2d) 644, refd to. [para. 203].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 207].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 213].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Brown v. Bouwkamp (1975), 8 O.R.(2d) 363 (Gen. Div.), affd. (1976), 12 O.R.(2d) 33 (C.A.), refd to. [para. 215].

Coderre v. Lambert et al. (1993), 64 O.A.C. 241; 14 O.R.(3d) 453 (C.A.), refd to. [para. 216].

Chrappa v. Ohm et al. (1996), 2 O.T.C. 42; 29 O.R.(3d) 222 (Gen. Div.), refd to. [para. 217].

Canadian Pacific Ltd. v. Gill Estate, [1973] S.C.R. 654, refd to. [para. 217].

Melanson v. Co-operators General Insurance Co. et al., [1998] 1 I.L.R. 4478; 192 N.B.R.(2d) 273; 489 A.P.R. 273 (C.A.), refd to. [para. 221].

Doran v. Commercial Union Assurance Co. of Canada (2000), 182 N.S.R.(2d) 329; 563 A.P.R. 329 (S.C.), refd to. [para. 223].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590 (B.C.S.C.), refd to. [para. 224].

Fairview Industries Ltd. et al., Re (No. 1) (1991), 109 N.S.R.(2d) 8; 297 A.P.R. 8 (T.D.), refd to. [para. 224].

Nova Scotia Public Service Long Term Disability Plan (Trustees) v. Flemming (1996), 152 N.S.R.(2d) 167; 442 A.P.R. 167 (S.C.), affd. (1996), 154 N.S.R.(2d) 397; 452 A.P.R. 397 (C.A.), refd to. [para. 224].

Somersall v. Friedman et al. (2002), 292 N.R. 1; 163 O.A.C. 201 (S.C.C.), refd to. [para. 226].

MacNeill v. Co-operators General Insurance Co. et al. (2003), 223 Nfld. & P.E.I.R. 199; 666 A.P.R. 199 (P.E.I.C.A.), not folld. [para. 234].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 57 [para. 139]; 173 [para. 239]; 601 [para. 222]; 868 [para. 183].

Fridman, G.H.L., The Law of Contract in Canada (2nd Ed. 1986), pp. 491 [para. 231]; 496 [para. 233].

Munkman, Damages for Personal Injuries and Death (2nd Ed.), pp. 27, 107 [para. 141].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 297 [para. 67].

Counsel:

Robert L. Barnes, Q.C., and Gavin Giles, for the plaintiffs;

Cathy L. Dalziel (not appearing), for the defendant, Lis Deveaux;

Michael E. Dunphy, and Joey D. Palov, for the defendant, Lombard Insurance Co.

This action was heard on February 3-24 and March 28, 2003, at Halifax, N.S., before Gruchy, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 15, 2003.