Rowe et al. v. Brown, 2008 NSSC 13

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 25, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 13;(2008), 261 N.S.R.(2d) 332 (SC)

Rowe v. Brown (2008), 261 N.S.R.(2d) 332 (SC);

    835 A.P.R. 332

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.061

Walter Rowe, Suzanne Rowe, Lillian Rowe, Dom Hall and Anita Hall (plaintiffs) v. Justin Brown (defendant)

(S.H. No. 281405; 2008 NSSC 13)

Indexed As: Rowe et al. v. Brown

Nova Scotia Supreme Court

Stewart, J.

January 22, 2008.

Summary:

The parents and grandparents of a man killed in a motor vehicle accident were the plaintiffs in an action against the defendant under the Fatal Injuries Act. The plaintiffs' statement of claim sought out-of-pocket expenses for counselling for emotional stress and exemplary damages of $250,000. The defendant applied under rule 14.25(1)(a) to strike those claims from the statement of claim as failing to disclose a reasonable cause of action or, alternatively, as inadequate pleadings.

The Nova Scotia Supreme Court allowed the application and struck the claims. The court stated that "the law is clear and settled so as to find the plaintiffs' claims for punitive damages and emotional stress inclusive of indirect expenses are absolutely unsustainable".

Damages - Topic 1313

Exemplary or punitive damages - Wrongful death - [See Damages - Topic 2104 ].

Damages - Topic 2104

Torts causing death - General - Damages recoverable - The parents and grandparents of a man killed in a motor vehicle accident were the plaintiffs in an action against the defendant under the Fatal Injuries Act - The plaintiffs' statement of claim sought out-of-pocket expenses for counselling for emotional stress and exemplary damages of $250,000 - At issue was the type of damages recoverable under s. 5 of the Fatal Injuries Act for a wrongful death - The Nova Scotia Supreme Court struck the claims, stating that "the law is clear and settled so as to find the plaintiffs' claims for punitive damages and emotional stress inclusive of indirect expenses are absolutely unsustainable" - The court rejected the plaintiffs' position that ss. 5(1) and (2) did not restrict the types of damages available in the case of a wrongful death - Sections 5(1) and (2) provided for compensatory damages assessed in relation to the injury, which precluded punitive damages, which focussed on the conduct of the defendant rather than the resulting loss to the plaintiffs (i.e., not compensatory) - The Act was designed to remedy the harshness of the common law (which precluded any claim), but did not create a right to damages of the same nature and type that would be available if the deceased had lived - The court noted that it would be inconsistent to allow dependents to claim punitive damages respecting the accused's death, while the Survival of Actions Act expressly precluded such a claim on behalf of the deceased's estate - The Fatal Injuries Act created a limited right of action where no right of action previously existed - The court held that "a claim for grief or sorrow resulting from the death of a loved one is simply not recoverable under the [Act]".

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - The Nova Scotia Supreme Court referred to the following statement by the Supreme Court of Canada on the interpretation of legislation: "The interpretation of a statutory provision must be made according to a textual, contextual yet purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretative process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words play a lesser role. The relative effects of ordinary meaning, context and purpose of the interpretative process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole" - See paragraph 9.

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 5].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Mabey v. Mabey (2005), 230 N.S.R.(2d) 272; 729 A.P.R. 272 (C.A.), refd to. [para. 5].

CGU Insurance Co. of Canada v. Noble et al. (2003), 218 N.S.R.(2d) 49; 687 A.P.R. 49; 2003 NSCA 102 (C.A.), refd to. [para. 5].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1, refd to. [para. 9].

MacLean et al. v. MacDonald (2002), 201 N.S.R.(2d) 237; 629 A.P.R. 237; 2002 NSCA 30, refd to. [para. 10].

Blacquiere Estate v. Canadian Motor Sales Corp. and Clark (1975), 10 Nfld. & P.E.I.R. 178; 17 A.P.R. 178 (P.E.I.S.C.), refd to. [para. 12].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 20].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, refd to. [para. 29].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 29].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39, refd to. [para. 30].

Lord et al. v. Downer et al. (1999), 125 O.A.C. 168 (C.A.), refd to. [para. 37].

Campbell et al. v. Varanese (1991), 102 N.S.R.(2d) 104; 279 A.P.R. 104 (C.A.), refd to. [para. 37].

Lutley v. Jarvis Estate et al. (1992), 113 N.S.R.(2d) 201; 309 A.P.R. 201 (T.D.), refd to. [para. 45].

Jones v. LeBlanc (2006), 244 N.S.R.(2d) 186; 774 A.P.R. 186; 2006 NSSC 131, refd to. [para. 45].

Reidy et al. v. McLeod Estate et al. (1986), 15 O.A.C. 200; 54 O.R.(2d) 661 (C.A.), refd to. [para. 45].

Rhodes Estate v. Canadian National Railway, [1990] B.C.J. No. 2388 (C.A.), refd to. [para. 47].

Statutes Noticed:

Fatal Injuries Act, R.S.N.S. 1989, c. 163, sect. 5(1), sect. 5(2) [para. 7].

Authors and Works Noticed:

Goldsmith, Immanuel, Damages for Personal Injury and Death in Canada (2004 Looseleaf Update), p. xxxiii [para. 13].

Counsel:

Scott Lytle, for the plaintiffs/respondents;

Patricia Mitchell and Donn Fraser, for the defendant/applicant.

This application was heard on October 25, 2007, at Halifax, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 22, 2008.