Hawkes v. Nolais et al., (2002) 253 N.B.R.(2d) 371 (CA)

• Judge: Drapeau, Larlee and Deschênes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 19, 2002
• Jurisdiction: New Brunswick
• Citations: (2002), 253 N.B.R.(2d) 371 (CA);2002 NBCA 94

Hawkes v. Nolais (2002), 253 N.B.R.(2d) 371 (CA);

    253 R.N.-B.(2e) 371; 660 A.P.R. 371

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. NO.021

David John Nolais and Lorraine Pearl Weeks (defendants/appellants) v. Douglas Frank Hawkes, by his Committee of the Estate, Mark Hawkes (plaintiff/respondent)

(194/01/CA; 2002 NBCA 94)

Indexed As: Hawkes v. Nolais et al.

New Brunswick Court of Appeal

Drapeau, Larlee and Deschênes, JJ.A.

November 21, 2002.

Summary:

Hawkes suffered severe injuries when he was struck by a motor vehicle. He was declared mentally incapacitated and a Com­mittee was appointed to manage his affairs. The Com­mittee intended to submit at trial that Hawkes should be provided with on­going home care. The defendants requested a deter­mination, prior to trial, of whether s. 242.1(2) of the Insurance Act, in conjunction with s. 142.01(2) of the Family Services Act, prevented Hawkes from obtain­ing damages in payment of past and/or future care costs.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 245 N.B.R.(2d) 389; 636 A.P.R. 389, held that these statutory provisions did not pre­vent Hawkes from recovering under these heads of damage. The defendants appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Damages - Topic 1567

General damages for personal injury - Future care and treatment - Hawkes, a social assistance recipient, was declared mentally incapacitated after a motor vehi­cle accident - The costs of his ongoing medical and residential care were covered by the Province as "social services" - His Commit­tee intended to claim the costs of ongoing home care at trial - The defen­dants argued that s. 242.1(2) of the Insur­ance Act and s. 142.01(2) of the Family Services Act pre­vented Hawkes from obtaining damages for past and future care costs - They submitted that these social service payments were funded through annual levies against all insurance com­panies, and they should not be made to pay twice for the cost of his care - The trial judge rejected this argument, and held that the levies were designed to replace subro­gated Medicare and social services claims in per­sonal injury actions, not to preclude recovery of the costs of future care - The New Bruns­wick Court of Appeal agreed.

Damages - Topic 1770.1

Deductions for payments or assistance by third parties - By statute or government - Home care - [See Damages - Topic 1567 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 15].

Canada Mortgage and Housing Corp. v. Campbellton (City) et al. (1999), 214 N.B.R.(2d) 159; 547 A.P.R. 159 (C.A.), refd to. [para. 16].

Western Surety Co. v. National Bank of Canada (2001), 237 N.B.R.(2d) 346; 612 A.P.R. 346 (C.A.), leave to appeal de­nied (2001), 283 N.R. 391 (S.C.C.), refd to. [para. 16].

Gallant v. Workplace Health, Safety and Compensation Commission (N.B.) (2000), 228 N.B.R.(2d) 98; 588 A.P.R. 98 (C.A.), refd to. [para. 16].

R.B. v. G.B. (2000), 227 N.B.R.(2d) 137; 583 A.P.R. 137 (C.A.), refd to. [para. 16].

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. 22].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 22].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 22].

Statutes Noticed:

Family Services Act, S.N.B. 1980, c. F-2.2, sect. 142.01, sect. 142.1 [para. 5].

Insurance Act, R.S.N.B. 1973, c. I-12, sect. 242.1, sect. 242.2, sect. 242.3, sect. 242.4 [para. 5].

Authors and Works Noticed:

Cooper-Stephenson, K., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 582 to 592 [para. 22].

Counsel:

Tracey K. Deware, for the appellants;

Joseph E. Cantini, for the respondent.

This appeal was heard on June 19, 2002, by Drapeau, Larlee and Deschênes, JJ.A., of the New Brunswick Court of Appeal. Drapeau, J.A., delivered the following deci­sion for the court on November 21, 2002.