Hodgson v. Walsh, (1999) 121 O.A.C. 255 (CA)

• Judge: Morden, Laskin and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 02, 1999
• Jurisdiction: Ontario
• Citations: (1999), 121 O.A.C. 255 (CA)

Hodgson v. Walsh (1999), 121 O.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. JN.015

Marlene Payne, Mary Ann Payne and David William Payne (plaintiffs/appellants) v. Timothy Alb, Shanahan Farms Limited (also known as Pine Grove Farms), St. Clair College of Applied Arts and Technology and Isabelle Shanahan and Kathleen Prentice (defendants/respondents) (C30443)

Brian Hodgson and Karen Hodgson (appellants) v. Mary Walsh (respondent)

(C30444)

Indexed As: Hodgson v. Walsh

Ontario Court of Appeal

Morden, Laskin and Rosenberg, JJ.A.

June 2, 1999.

Summary:

The plaintiffs moved for a determination of whether there were any limitations on non­pecuniary loss payable under s. 267.1 of the Insurance Act and whether loss of earning capacity was a form of nonpecuniary loss for the purposes of s. 267.1 of the Act.

The motions judge, in a decision reported at 72 O.T.C. 184, held that nonpecuniary damages were to be assessed in the same manner as any other proceeding without regard to the provisions of s. 267.1 of the Act and loss of earning capacity did not form a nonpecuni­ary loss for the purpose of s. 267.1 of the Act. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeals.

Damages - Topic 61

General principles - Considerations in assessing damages - General - [See In­sur­ance - Topic 5010.3 and Insurance - Topic 5010.4 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering - Loss of amenities and other nonpecuniary dam­ages - [See Insurance - Topic 5010.3 and Insurance - Topic 5010.4 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - [See Insurance - Topic 5010.3 ].

Insurance - Topic 5010.3

Automobile insurance - Compulsory gov­ernment schemes - General - Nonpecun­iary loss - What constitutes - The plain­tiffs moved for a determination of whether loss of earning capacity was a nonpecu­niary loss for the purposes of s. 267.1 of the Insurance Act - The motions judge held that loss of earning capacity was not a nonpecuniary loss under s. 267.1 of the Act - The plaintiffs appealed - The Ontario Court of Appeal held that loss of earning capacity was not a nonpecuniary loss under s. 267.1 - No matter what label was used, "loss of earnings" or "loss of (or diminu­tion in) working capacity", loss of earning capacity was to compensate for pecuniary loss - However, for some injured persons the inability to work, or do certain kinds of work, might be an aspect of the diminution in the amenities of life, which could be considered in nonpecuni­ary general dam­ages.

Insurance - Topic 5010.4

Automobile insurance - Compulsory gov­ernment schemes - General - Nonpecun­iary loss - Limitations on - The plaintiffs moved for a determination of whether there were any limitations on nonpecuni­ary loss payable under s. 267.1 of the Insur­ance Act, which removed tort liability for pecuniary loss damages - The plain­tiffs argued that s. 267.1 denied injured parties pecuniary damages, therefore no limits should be imposed on nonpecuni­ary dam­ages assessed under s. 267.1 - The motions judge held that nonpecuniary damages had limitations and were to be assessed like any other proceeding without regard to the provisions under s. 267.1 - The plain­tiffs appealed - The Ontario Court of Appeal upheld the motion judge's decision - The liability for damages for nonpe­cun­iary loss was created by the common law - Section 267.1 did not change the com­mon law - To change the common law the legislature must state the change clear­ly and unam­biguously.

Cases Noticed:

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 3].

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; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607; 3 C.C.L.T. 257, refd to. [para. 3].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 272, refd to. [para. 3].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; [1982] 1 W.W.R. 433; 129 D.L.R.(3d) 263; 34 B.C.L.R. 273; 19 C.C.L.T. 1, refd to. [para. 3].

Sharp et al. v. Hall et al. (1997), 33 O.T.C. 224; 34 O.R.(3d) 24 (Gen. Div.), refd to. [para. 14].

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), refd to. [para. 19].

Meyer et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), refd to. [para. 21].

Donnelly v. Bélanger (1991), 122 N.B.R.(2d) 48; 306 A.P.R. 48 (C.A.), refd to. [para. 22].

LeClerc v. Sunbury Transport Ltd. and Risteen (1996), 184 N.B.R.(2d) 1; 469 A.P.R. 1 (C.A.), refd to. [para. 22].

Reeves v. Arsenault; Reeves v. Gauthier (1998), 168 Nfld. & P.E.I.R. 251; 517 A.P.R. 251 (P.E.I.C.A.), refd to. [para. 22].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 267.1 [para. 5].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saun­ders, Iwan B., Personal Injury Da­mages in Canada (2nd Ed. 1996), pp. 202, 203 [para. 23]; 211, 212 [para. 24].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 298, 299 [para. 11].

McLachlin, What Price Disability? A Per­spective on the Law of Damages for Personal Injury (1991), 59 Can. Bar Rev. 1, p. 7 [para. 18].

Munkman, John, Damages for Personal Injuries and Death (10th Ed. 1996), p. 73 [para. 24].

Waddams, Compensation for Non-pecun­iary Loss; Is there a Case for Legislative Intervention (1985), 63 Can. Bar Rev. 734, pp. 735, 736 [para. 19].

Counsel:

Martin Wunder, Q.C., and Ronald Davis, for the appellants;

Joseph Dillon, for the respondent, Timothy Alb;

Timothy Jacques, for the respondents, Shanahan Farms, Isabelle Shanahan and Kathleen Prentice;

Richard Gates and Greg Verbeem, for the respondent, St. Clair College of Applied Arts and Technology;

Lawrence McRae, for the respondent, Mary Walsh.

This appeal was heard on April 12 and 13, 1999, before Morden, Laskin and Rosenberg, JJ.A., of the Ontario Court of Appeal. Mor­den, J.A., delivered the following judgment for the Court of Appeal on June 2, 1999.