Lodge v. Fraser Health Authority et al., 2009 BCCA 108

JudgeRowles, Kirkpatrick and Bauman, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateOctober 16, 2008
JurisdictionBritish Columbia
Citations2009 BCCA 108;(2009), 267 B.C.A.C. 197 (CA)

Lodge v. Health Authority (2009), 267 B.C.A.C. 197 (CA);

    450 W.A.C. 197

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MR.042

Winston Lodge and Winston Lodge as Executor of the Estate of Patricia Joan McKay (respondent/appellant on cross-appeal/plaintiff) v. Fraser Health Authority, John Doe and Jane Doe (appellants/respondents on cross-appeal/defendants)

(CA034865; 2009 BCCA 108)

Indexed As: Lodge v. Fraser Health Authority et al.

British Columbia Court of Appeal

Rowles, Kirkpatrick and Bauman, JJ.A.

March 12, 2009.

Summary:

The plaintiff 's common law wife died in a Fraser Health Authority (FHA) hospital. Three rings allegedly worn by the deceased were not returned to the plaintiff. He sued the Health Authority, alleging conversion and negligence. The trial judge ruled that FHA did not owe a duty of care to the plaintiff personally. Thereafter the plaintiff was added to the action in his capacity as executor of his common law wife's estate. The jury returned a verdict in favour of the estate for $10,000 as damages for the loss of the rings and $10,000 for aggravated damages payable to the estate in light of the "no duty" finding in respect of the plaintiff personally. FHA then successfully urged the trial judge to vacate the aggravated damages award on the premise that an estate could not pursue aggravated damages on behalf of a deceased person. The FHA appealed, claiming that the trial judge erred in dismissing a no evidence motion respecting the value of the rings and a motion to restrict the plaintiff's costs to the Small Claims Court tariff. The plaintiff cross-appealed, arguing that the trial judge erred in finding that in the circumstances no duty of care was owed by the FHA to him. He also urged a revival of the aggravated damages award, an assessment of punitive damages and costs on a special costs basis.

The British Columbia Court of Appeal dismissed the FHA's appeal. However, the court allowed the plaintiff's cross-appeal, holding that the duty of care issue was decided wrongly in favour of the FHA. A new trial would have to be held on that aspect of the case should the plaintiff decide to pursue it.

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - [See Executors and Administrators - Topic 5081 ].

Executors and Administrators - Topic 5081

Actions by and against representatives - Actions by executors - General - The British Columbia Court of Appeal opined that an estate could not maintain an action for punitive or aggravated damages on behalf of a deceased person - See paragraphs 53 to 56.

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - The plaintiff's common law wife died in a Fraser Health Authority (FHA) hospital - Three rings allegedly worn by the deceased were not returned to the plaintiff - He sued the Health Authority, claiming, inter alia, damages for mental distress - The trial judge ruled that FHA did not owe a duty of care to the plaintiff personally - Thereafter the plaintiff was added to the action in his capacity as executor of his common law wife's estate - The jury returned a verdict in favour of the estate for $10,000 as damages for the loss of the rings - The plaintiff by way of cross-appeal argued that the trial judge erred on the duty of care issue - The British Columbia Court of Appeal agreed - The court held that the plaintiff's case, as pleaded and advanced at trial, raised a prima facie duty of care owed to him by the FHA and, in the circumstances, the court could see no considerations negativing that duty - The court held that there had to be a new trial on this aspect of the case if the plaintiff wished to pursue one - See paragraphs 25 to 36.

Cases Noticed:

Campbell v. Read (1987), 49 D.L.R.(4th) 51; 22 B.C.L.R.(2d) 214 (C.A.), refd to. [para. 4].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 10].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 12].

Hubbard v. Sisters of St. Joseph, [1943] O.W.N. 703; [1944] 1 D.L.R. 190 (C.A.), refd to. [para. 14].

Tremear v. Park Town Motor Hotels Ltd., [1982] 4 W.W.R. 444 (Sask. Q.B.), refd to. [para. 14].

Devji v. Burnaby (District) et al. (1999), 129 B.C.A.C. 161; 210 W.A.C. 161; 70 B.C.L.R.(3d) 42; 1999 BCCA 599, refd to. [para. 33].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 293 D.L.R.(4th) 29; 2008 SCC 27, refd to. [para. 33].

Rhodes v. Canadian National Railway (1990), 75 D.L.R.(4th) 248; 50 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 35].

Reimann v. Aziz et al. (2007), 246 B.C.A.C. 143; 406 W.A.C. 143; 72 B.C.L.R.(4th) 1; 2007 BCCA 448, refd to. [para. 51].

Allan Estate v. Co-operators Life Insurance Co. et al. (1999), 117 B.C.A.C. 237; 191 W.A.C. 237; 62 B.C.L.R.(3d) 329; 1999 BCCA 35, refd to. [para. 53].

Counsel:

M.M. Skorah and J.K. Lamb, for the appellants;

N. Steinman, for the respondent.

This appeal was heard at Vancouver, B.C., on October 16, 2008, with written submissions received on February 6, 13 and 20, 2009, by Rowles, Kirkpatrick and Bauman, JJ.A., of the British Columbia Court of Appeal. Bauman, J.A., released the following reasons for judgment of the court on March 12, 2009.

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3 practice notes
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • June 21, 2014
    ...526 Llanover, The, [1947] P 80, [1948] LJR 108, 177 LT 591 ..................................... 97 Lodge v Fraser Health Authority, 2009 BCCA 108 ............................................ 237 Loehle v Purolator Courier Ltd, [2008] OJ No 2462 (SCJ) ................................ 438 Lo......
  • Compensation for Death
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...note 4, s 4(a); PEI SAA , above note 4, s 5(a). 131 Campbell v Read (1987), 22 BCLR (2d) 214 (CA); Lodge v Fraser Health Authority , 2009 BCCA 108; Glenn , above note 16. 132 RSO 1990, c T.23, s 38(1). See George , above note 16. See also Tizard Estate v Ontario (2001), 41 ETR (2d) 149 (SCJ......
  • Glenn v. Seair Seaplanes Ltd. et al., [2012] B.C.T.C. Uned. 1726 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • November 22, 2012
    ...to be determined. [9] Questions 1 and 3 have been answered by the British Columbia Court of Appeal in Lodge v. Fraser Health Authority , 2009 BCCA 108. The court in that case accepted that it was settled law that a claim for aggravated damages or punitive damages was not available under the......
1 cases
  • Glenn v. Seair Seaplanes Ltd. et al., [2012] B.C.T.C. Uned. 1726 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • November 22, 2012
    ...to be determined. [9] Questions 1 and 3 have been answered by the British Columbia Court of Appeal in Lodge v. Fraser Health Authority , 2009 BCCA 108. The court in that case accepted that it was settled law that a claim for aggravated damages or punitive damages was not available under the......
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • June 21, 2014
    ...526 Llanover, The, [1947] P 80, [1948] LJR 108, 177 LT 591 ..................................... 97 Lodge v Fraser Health Authority, 2009 BCCA 108 ............................................ 237 Loehle v Purolator Courier Ltd, [2008] OJ No 2462 (SCJ) ................................ 438 Lo......
  • Compensation for Death
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...note 4, s 4(a); PEI SAA , above note 4, s 5(a). 131 Campbell v Read (1987), 22 BCLR (2d) 214 (CA); Lodge v Fraser Health Authority , 2009 BCCA 108; Glenn , above note 16. 132 RSO 1990, c T.23, s 38(1). See George , above note 16. See also Tizard Estate v Ontario (2001), 41 ETR (2d) 149 (SCJ......

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