Hammond et al. v. DeWolfe et al., 2014 ABCA 81

• Judge: Côté, Conrad and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 28, 2014
• Citations: 2014 ABCA 81;(2014), 569 A.R. 353

Hammond v. DeWolfe (2014), 569 A.R. 353; 606 W.A.C. 353 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.119

Richard Hammond and Syncrude Canada Ltd. (appellants/cross respondents) v. Patricia Dawne DeWolfe (respondent/cross appellant) and Board of Trustees of Edmonton School District No. 7 (intervenor)

(1203-0302-AC; 2014 ABCA 81)

Indexed As: Hammond et al. v. DeWolfe et al.

Alberta Court of Appeal

Côté, Conrad and Costigan, JJ.A.

February 26, 2014.

Summary:

Hammond was injured in a motor vehicle accident involving DeWolfe. As a result of his injuries, Hammond missed time at work and he received $38,668 in income benefits from his employer, Syncrude Canada Ltd., under a temporary disability plan which formed part of his employment contract. The plan provided that, where income benefits were paid to an employee as a result of illness sustained by the employee because of the actions of a third party, Syncrude was subrogated to the employee's rights of recovery against the third party. Hammond and Syncrude issued a statement of claim against DeWolfe in which Syncrude claimed recovery of the income benefits. Syncrude applied for the determination of two preliminary points of law: 1. Was Syncrude subrogated to any right of recovery enjoyed by Hammond in respect of income benefits paid by Syncrude to Hammond during his absence due to injuries sustained in the motor vehicle accident, notwithstanding (former) s. 626.1 of the Insurance Act; and 2. Was Syncrude entitled at common law to claim damages for loss of the services of Hammond during his absence due to injuries sustained on the basis of an action per quod servitium amisit.

The Alberta Court of Queen's Bench, in a decision reported at [2012] A.R. Uned. 775, concluded that s. 626.1 of the Insurance Act applied to Syncrude's income benefits plan with the result that the benefits paid to Hammond were deductible from any damages award he received and Syncrude had no right of subrogation. However, the chambers judge found that Syncrude was entitled to claim damages for loss of Hammond's services. Syncrude appealed the finding that s. 626.1 applied to the income benefits it paid to Hammond. DeWolfe cross appealed the finding that Syncrude was entitled to claim damages for loss of Hammond's services.

The Alberta Court of Appeal allowed the appeal. Syncrude could pursue its subrogated action against DeWolfe. It was unnecessary to consider whether Syncrude could pursue its alternative cause of action for loss of services.

Damages - Topic 1734

Deductions for payments or assistance by third parties - Contractually - From employer - Disability payments - [See Subrogation - Topic 15 ].

Insurance - Topic 2880

Subrogation - Employer's group disability policy - [See Subrogation - Topic 15 ].

Subrogation - Topic 15

General - Right of subrogation - When available - Hammond was injured in a motor vehicle accident involving DeWolfe - As a result of his injuries, Hammond missed time at work and he received $38,668 in income benefits from his employer Syncrude Canada Ltd., under a temporary disability plan which formed part of his employment contract - The plan provided that, where income benefits were paid to an employee as a result of illness sustained by the employee because of the actions of a third party, Syncrude was subrogated to the employee's rights of recovery against the third party - Hammond and Syncrude issued a statement of claim against DeWolfe in which Syncrude claimed recovery of the income benefits - On an application for the determination of preliminary points of law, the chambers judge concluded that (former) s. 626.1 of the Insurance Act applied to Syncrude's income benefits plan with the result that the benefits paid to Hammond were deductible from any damages award he received and Syncrude had no right of subrogation - The Alberta Court of Appeal allowed Syncrude's appeal - The legislation did not abrogate Syncrude's common law right to pursue a subrogated action against DeWolfe to recover the income benefits it paid to Hammond - The court stated, inter alia, "There is nothing in the legislation, or in the common law, that compels the conclusion that Syncrude's temporary disability plan is an income replacement plan within the meaning of s. 626.1(4)(e). ... The context of the legislation suggests the legislation was not intended to apply to income benefits paid by an employer who retains a right of subrogation".

Cases Noticed:

Edmonton (City) v. Innvest Properties MacDonald Nominee Ltd. (2011), 515 A.R. 226; 532 W.A.C. 226; 2011 ABCA 333, refd to. [para. 6].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 6].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 7].

Devon Canada Corp. v. PE-Pittsfield LLC et al. (2008), 446 A.R. 62; 442 W.A.C. 62; 2008 ABCA 393, refd to. [para. 7].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 7].

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 7].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 8].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 9].

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

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. 9].

Graham v. Hill (2003), 258 N.B.R.(2d) 347; 676 A.P.R. 347; 2003 NBCA 24, refd to. [para. 15].

Statutes Noticed:

Insurance Act, R.S.A. 2000, c. I-3, sect. 15.1(2), sect. 626.1 [Schedule].

Insurance Act Regulations (Alta.), Miscellaneous Provisions Regulation, Alta. Reg. 120/2001, sect. 3.1 [Schedule].

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly Debates, 25th Leg, 3rd Sess (December 2, 2003), p. 2025 [para. 10].

Driedger, Elmer A., Construction of Statutes (2nd. Ed. 1983), p. 87 [para. 7].

Counsel:

R.B. Drewry, Q.C., and C.J. Montgomery-Silva, for the appellants/cross respondents;

J.L. Hutson, for the respondent/cross appellant;

R.P. James and C.B. Zelyas, for the intervener.

This appeal was heard on January 28, 2014, before Côté, Conrad and Costigan, JJ.A., of the Alberta Court of Appeal. Costigan, J.A., delivered the following reasons for judgment reserved for the Court of Appeal on February 26, 2014.