Paneak Estate v. Heli-Max Ltd., (2006) 397 A.R. 210 (CA)

• Jurisdiction: Nunavut
• Judge: Hunt, Berger and Kilpatrick, JJ.A.
• Neutral Citation: 2006 NUCA 4
• Subject Matter: DAMAGES,TRUSTS,CONSTITUTIONAL LAW,STATUTES,COURTS,EXECUTORS AND ADMINISTRATORS
• Court: Nunavut Court of Appeal (Canada)
• Date: 16 May 2006

Paneak Estate v. Heli-Max Ltd. (2006), 397 A.R. 210 (CA);

      384 W.A.C. 210

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AU.119

The Estate of Adamie Paneak, deceased, by its administratrix, Iga Paneak, Iga Paneak, Eunice Qayaq, Susie Paneak, Goola Paneak, Sam Paneak, Robert Paneak by his next friend, Sarah McDermott, Leevitie Paneak by her next friend Sarah McDermott, Fiona Paneak by her next friend Sarah McDermott, Mark Paneak by his next friend, Sarah McDermott, Caleb Paneak, David Qayaq and Isamaili Qayaq by his next friend, Sarah McDermott (respondents/plaintiffs) v. The Estate of Charles Caron, deceased, by its administratrix, Jane Doe and Heli-Max Ltee/Ltd. (appellants/defendants)

Walter Daniska, as Administrator of the Estate of Michael Eugene Daniska (respondent/plaintiff) v. Heli-Max Limited and the Estate of Charles Caron (appellants/defendants)

(03-05-0015-CAP; 03-05-0016-CAP; 2006 NUCA 4)

Indexed As: Paneak Estate et al. v. Heli-Max Ltd. et al.; Daniska Estate v. Heli-Max Ltd. et al.

Nunavut Court of Appeal

Hunt, Berger and Kilpatrick, JJ.A.

August 14, 2006.

Summary:

Paneak and Daniska were passengers in a helicopter owned and operated by Heli-Max Ltd. and flown by Caron. The two passengers were in the scope of their employment with Cominco when the helicopter crashed. Both passengers died as a result of the crash. Paneak's estate and Daniska's estate sued Heli-Max Ltd. and Caron (the defendants), alleging negligence and seeking damages. The defendants sought declarations respecting: (a) whether sections 31 to 33 of the Trustee Act permitted claims by the Daniska and Paneak estates for loss of expectation of life and for future loss of earnings or lost years claims; and (b) whether Part IV of the Workers' Compensation Act determined the compensation that was payable to the claimants of a worker who was fatally injured while acting in the course and scope of his/her employment. The motions were heard together.

The Nunavut Court of Justice, in decisions reported [2005] Nunavut Cases 14 (the Daniska decision) and [2005] Nunavut Cases 15 (the Paneak decision), found that s. 31(1) of the Trustee Act permitted an estate's action for both non-pecuniary loss of expectation of life claims and loss of future earnings. This also applied to the Workers' Compensation Board's subrogated claim (i.e., in the case of Paneak). The court concluded that Part IV of the Workers' Compensation Act did not limit the quantum of claims and that conclusion applied whether an estate had received compensation from the board or whether the estate claimed directly from the tortfeasor. The defendants appealed.

The Nunavut Court of Appeal dismissed the appeals.

Constitutional Law - Topic 143

Territories - Source of territorial law - Nunavut - The respondents in this appeal (plaintiffs) were the estates of two helicopter passengers who died after the crash of a helicopter that was carrying them between job sites - The appellants (the pilots and helicopter company/defendants) contested three preliminary legal rulings made by a chambers judge concerning the scope of damages available in a suit against them, and whether, in Nunavut, an estate could sue for loss of expectation of life and loss of future wages - The Nunavut Court of Appeal commented that because this was one of the first civil cases to be heard by the court since the establishment of Nunavut, it might be useful to trace the source of Nunavut's present laws - See paragraphs 19 to 22.

Courts - Topic 124.2

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Territorial courts - Nunavut Court of Appeal - Section 31(1) of the Trustee Act (R.S.N.W.T.), as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28, permitted the administrator of a deceased's estate to sue a tortfeasor on behalf of classes of close relatives for certain damages - The Nunavut Court of Appeal held that s. 31(1) permitted a claim by an estate administrator for loss of future income or a lost years claim - The court held that it was not bound by decisions of the Northwest Territories Supreme Court which held that the identical provision in the Northwest Territories legislation did not permit a lost years claim by an estate administrator - See paragraph 38.

Damages - Topic 510

Limits of compensatory damages - General - Prohibition against double recovery - [See first Damages - Topic 2384 ].

Damages - Topic 2326

Torts causing death - Loss of expectation of life - General principles - Paneak and Daniska were passengers in a helicopter owned and operated by Heli-Max Ltd. and flown by Caron - The two passengers were in the scope of their employment with Cominco when the helicopter crashed - Both passengers died - Paneak's estate and Daniska's estate sued Heli-Max and Caron (the defendants), alleging negligence and seeking damages - The defendants sought declarations respecting: (a) whether sections 31 to 33 of the Trustee Act permitted claims by the Daniska and Paneak estates for loss of expectation of life and for loss of future earnings (a lost years claim); and (b) whether Part IV of the Workers' Compensation Act determined the compensation that was payable to the claimants of a worker who was fatally injured while acting in the course and scope of his/her employment - A chambers judge held that s. 31(1) of the Trustee Act permitted an estate's action for both non-pecuniary loss of expectation of life claims and loss of future earnings - This also applied to the Workers' Compensation Board's subrogated claim - The judge concluded that Part IV of the Workers' Compensation Act did not limit the quantum of claims and that conclusion applied whether an estate had received compensation from the board or whether the estate claimed directly from the tortfeasor - The defendants appealed - The Nunavut Court of Appeal dismissed the appeals - See paragraphs 1 to 54.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income (incl. lost years claim) - Section 31(1) of the Trustee Act (R.S.N.W.T.), as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28, permitted the administrator of a deceased's estate to sue a tortfeasor on behalf of classes of close relatives for certain damages - The Nunavut Court of Appeal held that s. 31(1) permitted a claim by an estate administrator for loss of future income or a lost years claim - The court held that it was not bound by decisions of the Northwest Territories Supreme Court which held that the identical provision in the Northwest Territories legislation did not permit a lost years claim by an estate administrator - The court also rejected an argument that because lost years claims were not available at common law when s. 31(1) was enacted that such claims could not be pursued under s. 31(1) - The court held that s. 31(1) had to be interpreted through the "lens of today's law" (i.e. as the common law had evolved and that evolution included a lost years claim) - Section 31(1) could not be limited to damages available when it was passed in 1903 - The court also rejected an argument that its interpretation of s. 31(1) could allow for double recovery (i.e., a lost years claim and a fatal accidents claim), saying that this could be circumvented by the court should such a problem arise - See paragraphs 37 to 43.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income (incl. lost years claim) - [See Damages - Topic 2326 ].

Executors and Administrators - Topic 5121

Actions by and against representatives - Actions by administrators - Loss of expectation of life and loss of future income - [See Damages - Topic 2326 ].

Statutes - Topic 511

Interpretation - General principles - Source of construction - State of the law prior to enactment of statute - [See first Damages - Topic 2384 ].

Statutes - Topic 520

Interpretation - General principles - Time for determination of meaning of words - [See first Damages - Topic 2384 ].

Trusts - Topic 4105

Administration - Actions by trustee - Torts - Loss of expectation of life - [See Damages - Topic 2326 ].

Trusts - Topic 4106

Administration - Actions by trustee - Torts - Loss of future income (incl. lost years claim) - [See Damages - Topic 2326 and first Damages - Topic 2384 ].

Trusts - Topic 5903

The trustee - General - Right to bring action - Loss of expectation of life and loss of future income - [See Damages - Topic 2326 ].

Workers' Compensation - Topic 62

General principles - Interpretation - Particular provisions - Section 12(2) of the Workers' Compensation Act limited the right of workers or their representatives to sue employers or other workers - Section 12(2)(b)(ii) provided for an exception (i.e., the transportation exception) where a worker was injured or killed in the course of his employment if the death was attributable to an accident caused by a mode of transport other than an automobile and the accident was covered by a policy of liability insurance - A defendant, in a case where the transportation exception was in issue, argued that the effect of s. 12(2) of the Act was to permit the Workers' Compensation Board in its subrogated capacity to sue up to the limits of the liability insurance or the compensation calculated under Part IV of the Act, whichever was less (i.e., that a worker relying on the transportation exception found in s. 12(2)(b)(ii) of the Act could never recover more than the amount of compensation calculated under Part IV of the Act, even if the liability policy provided greater coverage) - The Nunavut Court of Appeal held that this interpretation could not be sustained - The court stated that s. 12(2)(b)(ii) did not deal with actions for compensation against the Workers' Compensation Board, but with actions by a worker or his legal representative "against another worker or an employer" - Such actions were generally barred, subject to the exceptions signalled by the word "unless" found at the end of the first part of s. 12(2) - The exception at issue was when the accident was attributable to a mode of transport other than an automobile that was covered by a liability insurance policy (s. 12(2)(b)(ii)) - The Act clearly permitted an action in such cases (but not against the claimant's own employer or co-worker per s. 12(2.01)) - It was irrelevant that the board might have a subrogated claim pursuant to s. 12(4) because it had paid compensation - The court stated that the only limit to the amount that could be awarded in a transportation exception suit was the liability policy - See paragraphs 47 to 53.

Workers' Compensation - Topic 120

General principles - Effect of statute on other causes of action - Exceptions to statutory bar re civil actions - Transportation exception - [See Workers' Compensation - Topic 62 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Benham v. Gambling, [1941] 1 All E.R. 7 (H.L.), refd to. [para. 25].

Crosby Estate v. O'Reilly, [1975] 2 S.C.R. 381; 2 N.R. 338, refd to. [para. 25].

Rose v. Ford, [1937] A.C. 826; [1937] 3 All E.R. 359 (H.L.), refd to. [para. 27].

Bechthold v. Osbaldeston, [1953] 2 S.C.R. 177, refd to. [para. 27].

Berg v. Northern Mountain Airlines Ltd. (1970), 73 W.W.R.(N.S.) 481 (N.W.T.C.A.), refd to. [para. 27].

Lepine v. Demeule, [1973] 3 W.W.R. 732; 36 D.L.R.(3d) 388 (N.W.T.C.A.), refd to. [para. 27].

Tilson Estate v. Summit Air Charters Ltd. et al., 2005 NWTSC 12, not folld. [para. 29].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 34].

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774 (H.L.), refd to. [para. 34].

Skelton v. Collins, [1966] A.L.R. 449; 115 C.L.R. 94 (H.C.), refd to. [para. 34].

Gammell v. Wilson, [1981] 1 All E.R. 578 (H.L.), refd to. [para. 36].

Fitch v. Hyde-Cates (1982), 150 C.L.R. 482 (Aust. H.C.), refd to. [para. 36].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 39].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 39].

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161; 145 D.L.R.(4th) 708 (C.A.), refd to. [para. 41].

Brooks et al. v. Stefura (2000), 266 A.R. 239; 228 W.A.C. 239; 2000 ABCA 276, refd to. [para. 42].

MacLean et al. v. MacDonald (2002), 201 N.S.R.(2d) 237; 629 A.P.R. 237; 211 D.L.R.(4th) 474 (C.A.), refd to. [para. 43].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 43].

Statutes Noticed:

Fatal Accidents Act, R.S.N.W.T. 1988, c. F-3, sect. 2, sect. 3, sect. 4.1 [para. 17].

Trustee Act, R.S.N.W.T. 1988, c. T-8, sect. 31(1) [para. 16 et seq.].

Workers' Compensation Act, R.S.N.W.T. 1988, c. W-6, sect. 12(1) [para. 18]; sect. 12(2)(b)(ii) [paras. 18, 44]; sect. 12(2.01), sect. 12(2.2), sect. 12(4), sect. 12(5), sect. 13(4) [para. 18].

Authors and Works Noticed:

Hansard (N.W.T.) - see Northwest Territories, Hansard, Legislative Assembly Debates.

Hansard (Nunavut) - see Nunavut, Hansard, Legislative Assembly Debates.

Northwest Territories, Hansard, Legislative Assembly Debates, 8th Session, 13th Assembly (September 9, 1999), p. 36 [para. 51].

Nunavut, Hansard, Legislative Assembly Debates (October 26, 1999), http://www.assembly.nu.ca/old/english/ hansard/final3/19991026.html, Item 19 [para. 52].

Counsel:

Robert J. Fenn, for the appellants;

Adrian C. Wright, for the respondent, the Estate of Adamie Paneak;

Joe Fiorante, for the respondent, the Estate of Michael Eugene Daniska.

These appeals were heard on May 16, 2006, before Hunt, Berger and Kilpatrick, JJ.A., of the Nunavut Court of Appeal. Hunt, J.A., delivered the following reasons for the court which were filed at Iqaluit, NU, on August 14, 2006.