Higgins Estate v. Arseneau, (2014) 414 N.B.R.(2d) 397 (CA)

• Judge: Richard, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: Monday December 16, 2013
• Jurisdiction: New Brunswick
• Citations: (2014), 414 N.B.R.(2d) 397 (CA)

Higgins Estate v. Arseneau (2014), 414 N.B.R.(2d) 397 (CA);

    414 R.N.-B.(2e) 397; 1075 A.P.R. 397

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. FE.006

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.006

The Estate of Caroline Higgins (intended appellant) v. David A. Arseneau (intended respondent)

(102-13-CA)

Indexed As: Higgins Estate v. Arseneau

Répertorié: Higgins Estate v. Arseneau

New Brunswick Court of Appeal

Richard, J.A.

January 29, 2014.

Summary:

Résumé:

A pedestrian (Higgins) was struck and killed by a motorcyclist (Arseneau). A negligence action was brought against Arseneau. Arseneau moved under rule 23.01(1)(a) for the pre-trial determination of the following question of law: "Is the [estate] entitled to recover damages for loss of future or prospective earnings, or loss of earning capacity, as a result of the death of [Higgins] pursuant to the Survival of Actions Act, R.S.N.B. 2011, c. 227, or otherwise?". At issue was whether it was appropriate to determine the issue pre-trial under rule 23.01(1)(a) and, if so, whether such a claim could be maintained, particularly in light of a negative response to the identical issue in another Queen's Bench case approximately one year earlier.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2013), 410 N.B.R.(2d) 354; 1065 A.P.R. 354, answered the question in the negative. The pre-trial determination of this question of law was appropriate under rule 23.01(1)(a) and the court felt bound by stare decisis to follow the earlier Queen's Bench decision resolving the very issue raised. The estate applied for leave to appeal.

The New Brunswick Court of Appeal, per Richard, J.A., granted leave to appeal.

Courts - Topic 75

Stare decisis - Authority of judicial decisions - Prior decisions of same court - General principles - [See Damages - Topic 2104 ].

Damages - Topic 2104

Torts causing death - General - Damages recoverable - Section 6(1) of the Survival of Actions Act, R.S.N.B. 2011, c. 227, provided, in part, that "Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable ..." - In 2012, a Court of Queen's Bench, Trial Division, decision held that a deceased's estate could not recover damages for loss of future earning capacity or prospective earnings because it did not constitute an "actual pecuniary loss to the estate" - In 2013, the same issue was raised again by another deceased's estate, who argued that the decision was wrongly decided - The trial judge held that "counsel for the plaintiff fairly acknowledged that I am in no better or different position than [the judge in the prior case]. In the end, for this court to embark on its own interpretive course guided by the competing arguments made here on essentially the same material put before my sister judge only last year would be to fail to respect precedent, to ignore the importance of judicial comity; in short, to abandon stare decisis. I am not prepared to do so for the reasons set out in Re Hansard Spruce Mills, supra. Rather, I simply follow [the prior decision]" - The New Brunswick Court of Appeal, per Richard, J.A., granted leave to appeal, stating that "I do so, not because I doubt the correctness of the conclusions reached in Adams Estate and in the present case, but only because the question of law determined in those cases is one that has never been addressed by the Court of Appeal in this Province. Even then, I would not have granted leave were it not for the fact I am convinced that, even if the appeal were ultimately dismissed, the resolution of this question of law by appeal at this time, rather than at the end of trial, will likely secure the just, most expeditious and least expensive determination of the matter" - See paragraph 2.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - [See Damages - Topic 2104 ].

Practice - Topic 8875.1

Appeals - Leave to appeal - From case management or pre-trial orders - [See Damages - Topic 2104 ].

Torts - Topic 7905

Survival of actions - General - Injuries resulting in death - [See Damages - Topic 2104 ].

Délits civils - Cote 7905

Survie des actions - Généralités - Blessures mortelles - [Voir Torts - Topic 7905 ].

Dommages-intérêts - Cote 2104

Délits civils causant la mort - Généralités - Dommages-intérêts recouvrables - [Voir Damages - Topic 2104 ].

Dommages-intérêts - Cote 2384

Réclamations particulières - Perte de revenus futurs (y compris réclamation pour années perdues) - [Voir Damages - Topic 2384 ].

Procédure - Cote 8875.1

Appels - Autorisation d'appel - De la gestion de cas ou des ordonnances avant le procès - [Voir Practice - Topic 8875.1 ].

Tribunaux - Cote 75

Stare decisis - Autorité des décisions judiciaires - Décisions antérieures du même tribunal - Principes généraux - [Voir Courts - Topic 75 ].

Cases Noticed:

Adams Estate et al. v. McKiel et al. (2012), 387 N.B.R.(2d) 140; 1001 A.P.R. 140; 2012 NBQB 108, refd to. [para. 1].

Counsel:

Avocats:

George A. McAllister, for the intended appellant;

David G. O'Brien, Q.C., for the intended respondent.

This application for leave to appeal was heard on December 16, 2013, before Richard, J.A., of the New Brunswick Court of Appeal, who delivered the following judgment in both official languages on January 29, 2014.