O'Hara et al. v. Belanger, (1989) 98 A.R. 86 (QB)

• Judge: Berger, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 18, 1989
• Citations: (1989), 98 A.R. 86 (QB)

O'Hara v. Belanger (1989), 98 A.R. 86 (QB)

MLB headnote and full text

Colleen Agnes O'Hara, Colleen Agnes O'Hara as Administratrix of the Estate of Robert Andrew Bennett, Deceased, John Brett Francis Bernard Forrest, An infant, By His Next Friend Colleen Agnes O'Hara, Andrew Bennett, John James Bernard O'Hara and Mary Agnes O'Hara (plaintiffs) v. Gerard Jean Belanger and Bradley D. Belanger (defendants)

(No. 8603 05829)

Indexed As: O'Hara et al. v. Belanger

Alberta Court of Queen's Bench

Judicial District of Edmonton

Berger, J.

August 18, 1989.

Summary:

A husband and wife and the wife's son from a previous marriage were involved in a motor vehicle accident. The husband was killed and the wife and son were injured. The wife commenced an action on behalf of herself, her son and her husband's estate against the defendants. Liability was admitted.

The Alberta Court of Queen's Bench, assessed damages accordingly.

Damage Awards - Topic 82

Injury and death - Fatal accidents - Husband - A husband died in a motor vehicle accident - Married three years - Had 10 year old stepson - Worked steadily as a welder - Husband and wife both 32 years old - The Alberta Court of Queen's Bench accordingly assessed the value of the loss of dependency - See paragraphs 85 to 102.

Damage Awards - Topic 97

Injury and death - Fatal accidents - Loss of guidance, care and companion ship - The 10 year old boy's stepfather was killed in a motor vehicle accident - The Alberta Court of Queen's Bench awarded the boy $11, 250.00 damages for loss of care, guidance and moral training where the stepfather stood in loco parentis to the boy and was a source of parental care, guidance and moral training - See paragraphs 198 to 200.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - An active, healthy, very intelligent 10 year old boy was injured in a motor vehicle accident - Suffered a fractured skull and a right temporal contusion - Initially in deep coma which lasted for several days - Hospitalized several months - Extensive physiotherapy, occupational therapy and speech therapy - Had to be toilet trained and taught to walk and eat - After accident he was physically, emotionally and mentally impaired - Uncertainty as to whether he would finish school - Unemployable and could not live independently - The Alberta Court of Queen's Bench assessed $160,000.00 nonpecuniary general damages, plus damages for loss of future income and the cost of future care - See paragraphs 133 to 189, 201 to 213.

Damage Awards - Topic 150

Injury and death - Multiple injuries - A 32 year old woman was injured in a motor vehicle accident - She suffered a separated shoulder, injuries to her knees, hips, and neck, bruising and cutting, emotional trauma and dizziness - Medication, physiotherapy, etc. - Activities restricted - Continued pain - The Alberta Court of Queen's Bench awarded $35,000.00 general damages, plus damages for loss of income - See paragraphs 124 to 132.

Damages - Topic 1256

Losses by third parties - Loss of consortium - General principles - [See Damages - Topic 2375 below].

Damages - Topic 1548

General damages - Personal injuries - Management of fund fee - The Alberta Court of Queen's Bench awarded a $50,000.00 management of fund fee for a 10 year old boy who received a damage award in excess of $2,000,000.00 - See paragraphs 214 to 217.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages or earnings - Income tax - The Alberta Court of Queen's Bench refused to allow a gross up for income tax on a damage award for loss of future income - The court rejected the argument that an award for loss of future income should be based on net income with a gross up for income tax payable - See paragraphs 16 to 22.

Damages - Topic 1560

General damages - Personal injury - Factors tending to reduce award - Prospect of suicide - The Alberta Court of Queen's Bench stated that the prospect of suicide is properly considered in assessing nonpecuniary general damages - See paragraph 187.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - Income tax - The Alberta Court of Queen's Bench held that a damage award for the cost of future care should be grossed up for income tax - See paragraphs 35 to 39.

Damages - Topic 1628

General damages - Considerations in assessing - Potential income tax liability - The Alberta Court of Queen's Bench discussed the extent to which income tax is payable on damage awards and described how a structured settlement can be used to eliminate the tax cost to a plaintiff - See paragraphs 6 to 15 - The court discussed further when a gross up for income tax would be made respecting a damage award - See paragraphs 16 to 49.

Damages - Topic 2113

Torts causing death - Method of assessment of value of the dependency (lump sum) - Upward adjustment for future income tax - The Alberta Court of Queen's Bench allowed a gross up for income tax on a damage award for loss of future support in a fatal accident claim - The court discussed how it calculated the appropriate gross up - See paragraphs 23 to 34.

Damages - Topic 2119.1

Torts causing death - Method of assessment of value of the dependency (lump sum) - Loss of deceased's future income - Gross up for income tax - [See Damages - Topic 2113 above].

Damages - Topic 2173

Torts causing death - Considerations which increase award - Income tax - General - [See Damages - Topic 2113 above].

Damages - Topic 2375

Torts causing death - Particular damage claims - Loss of consortium - The Domestic Relations Act, s. 43(1), provided that a tortfeaser who caused harm to a married person, thereby depriving the married person's spouse of the society and comfort of the married person, was liable to an action for damages in respect of the deprivation - The Alberta Court of Queen's Bench held that s. 43(1) merely codified the common law with respect to claims for loss of consortium, with the express addition of a cause of action for a wife - The court stated that s. 43(1) did not contemplate an award for loss of consortium in fatal accident cases, except for the period of time between injury and death of the spouse - See paragraphs 111 to 123.

Damages - Topic 2379

Torts causing death - Particular damage claims - Loss of housekeeping services - A husband was killed in a motor vehicle accident - The wife claimed damages for loss of household services, arguing that when the husband was home he helped extensively around the house - The Alberta Court of Queen's Bench allowed the claim and calculated damages accordingly - See paragraphs 103 to 110.

Damages - Topic 2380

Torts causing death - Particular damage claims - Bereavement - "Child" defined - The Fatal Accidents Act, s. 8(2)(c), provided that the minor "child" of a deceased parent was entitled to $3,000.00 for bereavement - The Alberta Court of Queen's Bench held that the word "child" in s. 8(2) did not include a stepson - See paragraphs 190 to 197.

Words and Phrases

Child - The Alberta Court of Queen's Bench discussed the meaning of the word "child" as it appeared in s. 8(2)(c) of the Fatal Accidents Act, R.S.A. 1980, c. F-5 - See paragraphs 190 to 197.

Cases Noticed:

British Transport Commission v. Gourley, [1956] A.C. 185 (H.L.), not folld. [paras. 14, 17].

Fenn v. City of Peterborough (1979), 104 D.L.R.(3d) 174 (Ont. C.A.), consd. [paras. 15, 42, 43].

R. v. Jennings (1966), 57 D.L.R.(3d) 644, appld. [paras. 17, 19, 22, 24].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225; [1978] 1 W.W.R. 577, consd. [paras. 18, 19, 22, 26, 36].

Teno et al. v. Arnold, [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, consd. [paras. 18, 22, 215].

Thornton v. Board of School Trustees of School District No. 57, [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480; 3 C.C.L.T. 257, consd. [paras. 18, 20, 22, 37].

Watkins v. Olafson, Aitkenhead, Manitoba and Manitoba Public Insurance Corporation (1987), 48 Man.R.(2d) 81; 40 C.C.L.T. 229, refd to. [para. 21].

Taylor v. O'Connor, [1970] 1 All E.R 365, consd. [paras. 23, 24, 25].

Keizer v. Hanna, [1978] 2 S.C.R. 342; 19 N.R. 209; 82 D.L.R.(3d) 449; 3 C.C.L.T. 316, consd. [paras. 2426].

Olacke's Estate v. Kenting Aircraft Ltd. (1979), 20 A.R. 215 (Q.B.), consd. [paras. 27, 94].

Cummings v. Halliburton Services (1980), 27 A.R. 181 (Q.B.), consd. [para. 27].

Julian v. Northern and Central Gas Corp. (1980), 31 O.R.(2d) 388 (C.A.), consd. [paras. 27, 29, 33].

McNichol Estate and McNichol v. Mardell, [1984] 5 W.W.R. 177; 55 A.R. 161 (C.A.), consd. [paras. 27, 31, 82, 94].

Lawrence's Estate et al. v. Good, [1985] 4 W.W.R 652; 33 Man.R.(2d) 312 (C.A.), consd. [paras. 27, 30].

Nielsen v. Kaufmann (1986), 13 O.A.C. 32; 36 C.C.L.T. 1 (C.A.), consd. [paras. 27, 29, 33].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 28].

MacDonald v. Alderson, [1982] 3 W.W.R. 385; 15 Man.R.(2d) 35 (C.A.), consd. [para. 38].

Scarff v. Wilson (1986), 39 C.C.L.T. 20 (B.C.S.C.), consd. [para. 39].

Quebec Tel v. LeBrun (1986), 4 Q.A.C. 283, consd. [para. 41].

Schmidt v. Sharpe (1983), 27 C.C.L.T. 1, refd to. [para. 43].

De Champlain v. Etobicoke General Hospital (1985), 34 C.C.L.T. 89, refd to. [para. 43].

McErlean v. Brampton (City) et al. (1987), 22 O.A.C. 186; 61 O.R.(2d) 396, folld. [paras. 44-47].

McErlean v. Sarel - see McErlean v. Brampton (City) et al.

Mason v. Mason (1988), 31 B.C.L.R.(2d) 92, consd. [para. 46].

Windjack v. Rowein (1978), 14 A.R. 607 (S.C.T.D.), refd to. [para. 82].

Lee v. Leeming (1985), 58 A.R. 204, refd to. [paras. 82, 121].

Giesbrecht v. Haneveld et al. (1985), 57 A.R. 157, refd to. [para. 82].

Peruch v. Schwab (1985), 66 A.R. 182, refd to. [para. 82].

Brydges v. Snyder (1987), 78 A.R. 182, refd to. [para. 82].

Vana v. Tosta (1967), 66 D.L.R.(2d) 97 (S.C.C.), refd to. [para. 82].

Soroka v. Uytterhaegen (1986), 48 Sask.R. 180 (Q.B.), refd to. [para. 82].

Chamberland v. Fleming (1984), 54 A.R. 291, refd to. [para. 94].

Coco v. Nicholls (1981), 31 A.R. 386 (C.A), refd to. [para. 108].

Woelk v. Halvorson (1980), 43 N.R. 232; 24 A.R. 620 (S.C.C.), consd. [paras. 111, 121].

Baker v. Bolton (1808), 1 Camp. 493; 170 E.R. 1033 (K.B.), consd. [paras. 115, 117].

Thomas v. Winnipeg Electric Railway Co, [1917] 1 W.W.R 1346 (Man. K.B.), consd. [para. 117].

Drewry v. Towns (1951), 2 W.W.R.(N.S.) 217; 59 Man. R. 119 (K.B.), refd to. [para. 117].

Higginson v. Carter (1961), 34 W.W.R.(N.S.) 529 (B.C.S.C.), refd to. [para. 117].

Rose v. Brookfield Dairy Products Ltd. & McNeil (1968), 5 N.S.R. 1965-69 155 (S.C), refd to. [para. 119].

Hurd v. Hodgson (1988), 89 A.R. 241; 61 Alta. L.R.(2d) 36 (Q.B.), refd to. [para. 121].

Lindal v. Lindal, [1982] 2 S.C.R. 629; 39 N.R. 361; [1982] 1 W.W.R. 433; 129 D.L.R.(3d) 263, refd to. [para. 188].

Flett Estate v. Way-Mat Oilfield Services Ltd. et al. (1988), 93 A.R. 246, refd to. [para. 199].

Lee v. Leeming (1985), 61 A.R. 18, refd to. [para. 216].

Campbell's Estate v. Calgary Power Ltd. (1986), 70 A.R. 161 (Q.B.), refd to. [para. 216].

Henrikson v. Parke and Budget Rent-A-Car of Edmonton Ltd., 29 A.R. 431 (Q.B.), refd to. [para. 216].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 43(1) [paras. 112, 121, 122].

Fatal Accidents Act, R.S.A. 1980, c. F-5, sect. 1 [para. 194]; sect. 1(a) [paras. 191, 196]; sect. 2, sect. 3 [para. 196]; sect. 8 [paras. 192, 194]; sect. 8(1)(a) [para. 191]; sect. 8(2) [para. 190]; sect. 8(2)(c) [paras. 191, 192].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 12(1)(c) [para. 9]; sect. 16(1) [para. 10]; sect. 81(1)(g.1), sect. 81(1)(g.2) [para. 12].

Income Tax Act, Interpretation Bulletin IT-365R (March 1981) [para. 8].

Interpretation Act, R.S.A. 1980, c. I-7, sect. 13(a) [para. 193].

Interpretation Bulletins - see Income Tax Act.

Authors and Works Noticed:

Davies, Family Law in Canada (1984), p. 111 [para. 118].

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 121 [para. 195].

O'Brien, Martin, Litigation Structured Settlements, Special Lecture of the Law Society of Upper Canada 1986, p. 130 [para. 11].

Salmond and Heuston, The Law of Torts (19th Ed.), p. 398 [para. 116].

Counsel:

K.P. Feehan and Alison J. Beames, for the plaintiffs;

Vaughn F. Cox, for the defendants.

This case was heard before Berger, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on August 18, 1989.