Takacs et al. v. Gallo, (1998) 105 B.C.A.C. 115 (CA)

• Judge: McEachern, C.J.B.C., Newbury and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 06, 1998
• Jurisdiction: British Columbia
• Citations: (1998), 105 B.C.A.C. 115 (CA)

Takacs v. Gallo (1998), 105 B.C.A.C. 115 (CA);

   171 W.A.C. 115

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. MY.025

Steven Takacs and Melina Boucher (plaintiffs/respondents) v. John R. Gallo (defendant/appellant)

(V02847)

Indexed As: Takacs et al. v. Gallo

British Columbia Court of Appeal

McEachern, C.J.B.C., Newbury and Huddart, JJ.A.

March 18, 1998.

Summary:

The deceased's father and the deceased's girlfriend brought an action against the defendant under the Family Compensation Act. The trial judge, in a decision reported in 25 B.C.L.R.(3d) 63, allowed the action, awarding both the father and the girlfriend, as the deceased's "spouse", damages. The defendant appealed.

The British Columbia Court of Appeal, Huddart, J.A., dissenting in part, allowed the appeal in part. The court reduced the award made to the deceased's father and dismissed the girlfriend's claim under the Act.

Damages - Topic 1290

Losses by third parties - Recoverable losses - Services rendered to claimant's business - A 25 year old son, employed by his father's company, died - The son would have continued working for the company, intending to purchase the busi­ness - The British Columbia Court of Appeal held that the trial judge erred in assessing the pecuniary loss resulting from loss of the son's company involvement - The judge should have assessed both pre- and post-trial pecuniary loss by determin­ing the value to the company's shares of the son's uncompensated contribution, not including an amount for benefits accrued to the company (and thus, the father) by way of increased salary, dividends or share value - The father's post-death sale of the company without compensation for good­will was not a recoverable loss - See para­graphs 3 to 18.

Torts - Topic 7553

Fatal accidents - Persons entitled - Spouse defined - The deceased and his girlfriend lived together from May 1988 until April 1992, while both were university students - During the 1989, 1990 and 1991 summers they returned to their parents' residences and saw each other on weekends - Similar­ly, during the 1989-90 academic year, they saw each other only on weekdays - The girlfriend vacationed separately in 1992 - In the 1991-92 academic year they main­tained separate residences but effectively lived together - Sometime after April 1992 the deceased had a relationship with another woman - The deceased died in December 1992 - The British Columbia Court of Appeal held that the girlfriend was not a "spouse" within the Family Compensation Act - See paragraphs 51 to 58.

Cases Noticed:

Lian et al v. Money Estate et al. (1996), 69 B.C.A.C. 176; 113 W.A.C. 176; 15 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 8].

Mensink v. Dueck (1981), 29 B.C.L.R. 46 (C.A.), refd to. [para. 9].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693, refd to. [para. 24].

McEvoy et al. v. Capital Motors (Pouce Coupe B.C.) Ltd. et al. (CA00991) (1988), 31 E.T.R. 55 (B.C.S.C.), affd. (1992), 10 B.C.A.C. 182; 21 W.A.C. 182; 63 B.C.L.R.(2d) 397 (C.A.), refd to. [para. 24].

Gostlin v. Kergin, [1986] 5 W.W.R. 1; 3 B.C.L.R.(2d) 264; 1 R.F.L.(3d) 448 (C.A.), refd to. [paras. 24, 53].

Louis v. Esslinger, [1981] 3 W.W.R. 350; 29 B.C.L.R. 41 (S.C.), refd to. [para. 25].

Johanson v. Hughesman (1991), 58 B.C.L.R.(2d) 141 (S.C.), refd to. [para. 28].

Keddie v. Currie (1991), 3 B.C.A.C. 291; 7 W.A.C. 291; 60 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 33].

Fitton v. Hewton Estate et al. (1997), 94 B.C.A.C. 39; 152 W.A.C. 39 (Yuk. C.A.), refd to. [paras. 34, 52].

Grizwold v. Connecticut (1965), 381 U.S. 479, refd to. [para. 42].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [paras. 46, 55].

Aktry v. Dobroslavic et al. (1983), 48 B.C.L.R. 26 (S.C.), refd to. [para. 46].

Munro v. Rasmussen (Administrator of the Estate of), [1993] B.C.D. Civ. 4151-01, refd to. [para. 46].

Wepruk v. McMillan Estate (1993), 26 B.C.A.C. 127; 44 W.A.C. 127; 77 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 47].

Wepruk v. Fortin - see Wepruk v. McMillan Estate.

Statutes Noticed:

Estate Administration Act, R.S.B.C. 1996, c. 122, sect. 1 [para. 52].

Family Compensation Act, R.S.B.C. 1996, c. 126, sect. 1 [para. 26].

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 1 [para. 52].

Interpretation Act, R.S.B.C. 1996, c. 238, sect. 8 [para. 40].

Counsel:

J.S. Carfra, Q.C., for the appellant;

R.C. Doell, for the respondents.

This appeal was heard in Victoria, British Columbia, on January 6, 1998, before McEachern, C.J.B.C., Newbury and Huddart, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on March 18, 1998, and the fol­lowing opinions were filed:

Huddart, J.A., dissenting in part - see paragraphs 1 to 50;

Newbury, J.A. (McEachern, C.J.B.C., concurring) - see paragraphs 51 to 58.