MacIsaac and MacIsaac v. Smith and Thomas, (1987) 20 O.A.C. 241 (DC)

• Judge: Callaghan, A.C.J.H.C., Reid and Watt, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 09, 1987
• Jurisdiction: Ontario
• Citations: (1987), 20 O.A.C. 241 (DC)

MacIsaac v. Smith (1987), 20 O.A.C. 241 (DC)

MLB headnote and full text

Allan J. MacIsaac and Joyce Elsie MacIsaac v. James B. Smith and Christopher B. Thomas

(File No. 409/86)

Indexed As: MacIsaac and MacIsaac v. Smith and Thomas

Ontario Divisional Court

Callaghan, A.C.J.H.C., Reid and Watt, JJ.

February 13, 1987.

Summary:

A husband and wife brought a negligence action for damages against the defendants for injuries suffered in a motor vehicle accident. The statement of claim included damage claims by the husband and wife under s. 60 of the Family Law Reform Act. The statement of claim was amended by consent to include a child and grandchild as s. 60 claimants. Fourteen months after the accident, a second grandchild was born. The husband and wife applied for an order to amend the statement of claim to include that grandchild as a s. 60 claimant.

The Ontario District Court dismissed the application. The husband and wife appealed.

The Ontario Divisional Court dismissed the appeal. The court held that in order to claim under s. 60 of the Act, the person claiming must fall within the class of persons entitled to claim at the time of the accident. Persons falling within the class after the date the principal cause of action arose were not entitled to claim relief under s. 60.

Damages - Topic 1272

Losses by third parties - Persons entitled to claim - Time for determining - Family Law Reform Act, R.S.O. 1980, c. 152, s. 60 - Section 60 provided in part that where a person injured through another's negligence was entitled to recover damages, the spouse, children, grandchildren, etc., of that person were entitled to recover damages for their pecuniary loss - The Ontario Divisional Court held that in order to claim under s. 60 the person claiming must be a member of the class of entitled persons at the time the principal cause of action arose; persons falling within the class after that date, such as a grandchild born 14 months after the cause of action arose, were not entitled to claim under s. 50.

Cases Noticed:

Preston-Jones v. Preston-Jones, [1951] A.C. 391, refd to. [para. 4].

Mason v. Peters et al. (1982), 39 O.R.(2d) 27, consd. [para. 14].

The Sussex Peerage (1844), 11 Cl. & F. 85; 8 E.R. 1034, refd to. [para. 16].

Grey v. Pearson (1857), 6 H.L.C. 61; 10 E.R. 1216, refd to. [para. 16].

R. v. Budget Car Rentals (Toronto) Ltd. (1981), 121 D.L.R.(3d) 111; 57 C.C.C.(2d) 201 (C.A.), refd to. [para. 16].

Seghers et al. v. Double A Farms Ltd. et al. (1984), 46 O.R.(2d) 258; 43 C.P.C. 19, disagreed with [para. 18].

Lister et al. v. Mount Sinai Hospital et al. (1984), 46 C.P.C. 132, disagreed with [para. 19].

Ficht et al. v. Kitchen et al. (1984), 46 C.P.C. 125, agreed with [para. 23].

Gibson v. Dudding (1985), 1 C.P.C.(2d) 298, refd to. [para. 24].

Butler Trucking Co. et al. v. Brydges et al. (1984), 4 O.A.C. 378; 46 O.R.(2d) 686 (Div. Ct.), refd to. [para. 30].

Letang v. Cooper, [1965] 1 Q.B. 232; [1964] 2 All E.R. 929; [1964] 2 Lloyd's Rep. 339, refd to. [para. 34].

Von Cramm v. Riverside Hospital of Ottawa et al. (1986), 17 O.A.C. 218; 56 O.R.(2d) 700 (C.A.), refd to. [para. 34].

Deaville v. Boegeman (1984), 6 O.A.C. 297; 48 O.R.(2d) 725 (C.A.), refd to. [para. 38].

Attorney-General v. Carlton Bank, [1899] 2 Q.B. 158, refd to. [para. 39].

R. v. Morgentaler, Smoling and Scott (1984), 6 O.A.C. 53; 16 C.C.C.(3d) 1 (C.A.), refd to. [para. 41].

Statutes Noticed:

Family Law Act, S.O. 1986, c. 4, sect. 61 [para. 9].

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 60 [para. 8].

Highway Traffic Act, R.S.O. 1980, c. 198, sect. 180(1) [para. 5].

Interpretation Act, R.S.O. 1980, c. 219, sect. 10 [para. 15].

Workers' Compensation Act, R.S.O. 1980, c. 539, generally [para. 30].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), pp. 1-2 [para. 16].

Counsel:

W.E. Taberner, for the appellants;

M. Wannop, for the respondents.

This appeal was heard on January 9, 1987, before Callaghan, A.C.J.H.C., Reid and Watt, JJ., of the Ontario Divisional Court. The judgment of the Divisional Court was delivered by Watt, J., and released on February 13, 1987.