Macartney v. Warner, (2000) 129 O.A.C. 96 (CA)

• Judge: Morden, Laskin and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 14, 1999
• Jurisdiction: Ontario
• Citations: (2000), 129 O.A.C. 96 (CA)

Macartney v. Warner (2000), 129 O.A.C. 96 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JA.015

Dana Macartney, Cecil Macartney, Allan Earle, Marie Earle and Adam Macartney (respondents) v. David Warner (appellant)

(C21077)

Indexed As: Macartney et al. v. Warner

Ontario Court of Appeal

Morden, Laskin and Rosenberg, JJ.A.

January 11, 2000.

Summary:

The plaintiffs' 19 year old son was killed in a motor vehicle accident. The plaintiffs sued the defendant driver for damages for nervous shock and for their loss of income resulting from the nervous shock pursuant to s. 61(1) of the Family Law Act. The defen­dant brought a motion under rule 21 for a determination of whether the plaintiffs' claims for damages for nervous shock arising from the death of their son were barred by s. 266 of the Insurance Act. He also sought a determination of whether the claim for the plaintiffs' loss of income could be brought under s. 61(1) of the Family Law Act. Yates, J., held that the plaintiffs could pursue their claims. The defendant appealed that decision.

The Ontario Court of Appeal allowed the appeal in part. The court unanimously held that the plaintiffs' claims for nervous shock were barred by s. 266 of the Insurance Act. However, the court, Rosenberg, J.A., dissent­ing, held that the plaintiffs could maintain an action for their loss of income resulting from their son's death under s. 61(1) of the Fam­ily Law Act. Despite the defendant's appeal on the rule 21 motion, the trial had been held. The trial judge (Yates, J.), found that the claim of nervous shock had not been made out and, in an apparent reversal of his earlier ruling, held that the plaintiffs could not sue for their loss of income under s. 61(1) of the Family Law Act. Because of the Court of Appeal's conclusion with respect to s. 61(1) on the present appeal, it set aside the trial judg­ment and ordered a new trial on the loss of income claim.

Editor's Note: The present appeal was heard together with the appeal from the trial judg­ment and the reasons in both appeals were released contemporaneously. The reasons in the appeal from the trial judgment are re­ported at 129 O.A.C. 120.

Damage Awards - Topic 578

Torts - Injury to third parties - Loss of income by parent - [See Damages - Topic 2382 ].

Damages - Topic 2104

Torts causing death - Damages recoverable - [See Damages - Topic 2382 ].

Damages - Topic 2382

Torts causing death - Particular damage claims - Nervous shock - The plaintiffs' 19 year old son was killed in a motor vehicle accident - The plaintiffs sued the defendant driver for damages for nervous shock and for their loss of income resulting from the nervous shock pursuant to s. 61(1) of the Family Law Act - The Ontario Court of Appeal held that the plaintiffs could main­tain an action for their loss of income resulting from their son's death under s. 61(1) of the Family Law Act - The ordi­nary meaning of the words of s. 61(1) per­mitted recovery for the loss claimed by the plain­tiffs and there was no justification for departing from the ordinary meaning of s. 61(1) - The court also held that the plain­tiffs did not have to prove that their loss of income was caused by nervous shock in order to succeed in their claim under s. 61(1) - They only had to prove that their income loss was a pecuniary loss resulting from their son's death - See paragraphs 37 to 66.

Insurance - Topic 5010.1

Automobile insurance - Compulsory gov­ernment schemes - Limitation on causes of action - General (incl. when applicable) - The plaintiffs' 19 year old son was killed in a motor vehicle accident - The plaintiffs sued the defendant driver for damages for nervous shock - The Ontario Court of Appeal held that the plaintiffs' claims for nervous shock were barred by s. 266 of the Insurance Act - The plaintiffs were not injured persons within the meaning of s. 266(1) and therefore they could not sue for bodily injury (nervous shock) that they sustained as a result of the operation of a motor vehicle by the defendant - See para­graphs 9 to 18.

Torts - Topic 8701

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - General - [See Insurance - Topic 5010.1 ].

Cases Noticed:

Meyer et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), consd. [para. 6].

Aerts et al. v. Olson et al. (1999), 117 O.A.C. 180; 42 O.R.(3d) 741 (Div. Ct.), consd. [para. 12].

Kemppainen v. Winter (1997), 27 O.T.C. 101; 143 D.L.R.(4th) 760 (Gen. Div.), refd to. [para. 14, footnote 2].

Frawley v. Asseltine (1990), 77 O.R.(2d) 525 (H.C.), refd to. [para. 23].

Mason v. Peters (1982), 39 O.R.(2d) 27 (C.A.), refd to. [para. 24].

St. Lawrence & Ottawa Railway Co. v. Lett (1885), 11 S.C.R. 422, refd to. [para. 30].

Tilley v. Hudson River Railroad Co., 24 N.Y. 474, refd to. [para. 30, footnote 3].

Vana v. Tosta et al., [1968] S.C.R. 71, refd to. [para. 31].

DeBrincat v. Mitchell (1958), 26 W.W.R.(N.S.) 634 (B.C.S.C.), refd to. [para. 31].

Vaiman et al. v. Yates (1985), 60 O.R.(2d) 696 (H.C.), leave to appeal denied (1987), 63 O.R.(2d) 211 (H.C.), refd to. [para. 32, footnote 4].

Cogar Estate v. Central Mountain Air Services Ltd. (1992), 16 B.C.A.C. 134; 28 W.A.C. 134; 72 B.C.L.R.(2d) 292 (C.A.), refd to. [para. 33].

Montgomery v. Murphy (1982), 37 O.R.(2d) 631 (H.C.), refd to. [para. 34, footnote 5].

Baker v. Bolton, 170 E.R. 1033, refd to. [para. 41, footnote 6].

Blake v. Midland Railway Co. (1852), 18 Q.B. 93, refd to. [para. 43, footnote 9].

Thornborrow v. MacKinnon (1981), 32 O.R.(2d) 740 (H.C.), refd to. [para. 51, footnote 13].

National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assur­ance Co. et autres, [1990] 2 S.C.R. 1029; 115 N.R. 42; 32 Q.A.C. 250; 74 D.L.R.(4th) 197, refd to. [para. 53, foot­note 15].

Miller Estate v. Bowness and O'Brien (1986), 58 O.R.(2d) 100 (H.C.), affd. (1988), 31 O.A.C. 146; 66 O.R.(2d) 750 (C.A.), refd to. [para. 64, footnote 24].

Littley v. Brooks and Canadian National Railway, [1932] S.C.R. 462, refd to. [para. 74].

Wiksech v. General News Co., [1948] O.R. 105 (C.A.), refd to. [para. 74].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 61(1), sect. 61(2) [para. 19].

Insurance Act, R.S.O. 1990, c. I-8, sect. 266(1) [para. 9].

Authors and Works Noticed:

Driedger, Elmer A., Con­struction of Stat­utes (3rd Ed. 1994), pp. 7 [para. 47]; 208, 209, 559 [paras. 54, 81, foot­note 16].

Hansard (Ont.) - see Ontario, Hansard, Legislative Debates.

Llewellyn, The Common Law Tradition - Deciding Appeals (1960), pp. 528, 529 [para. 81].

O'Donnell, A., Automobile Insurance in Ontario (1991), p. 225 [para. 20].

Ontario, Hansard, Legislative Debates (March 16, 1978), p. 767 [para. 77].

Ontario Law Reform Commission, Report on Family Law, Part I Torts (1969), pp. 106, 107 [para. 72]; 109 [para. 60, foot­note 21].

Counsel:

Donald Cormack, for the appellant;

D.F. Smye, Q.C., and M.J. Winward, for the respondents.

This appeal was heard on April 14, 1999, before Morden, Laskin and Rosenberg, JJ.A., of the Ontario Court of Appeal. The judg­ment of the Court of Appeal was delivered on January 11, 2000, including the following opinions:

Rosenberg, J.A., dissenting in part - see paragraphs 1 to 36;

Laskin, J.A. - see paragraphs 37 to 66;

Morden, J.A. - see paragraphs 67 to 84.