Buckingham v. Schledt, 2011 ABQB 792

Court of Queen ’ s Bench of Alberta Citation: Buckingham v. Schledt, 2011 ABQB 792 Date: 20111215 Docket: 0101 11143 Registry: Calgary Between: Thomas Buckingham and Carrie Butters Plaintiffs - and - Heinrich Schledt, John Doe I and John Doe II Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice T.F. McMahon _______________________________________________________ [ 1 ] This is a personal injury claim arising from a motor vehicle accident in 1999. The action is being tried before a jury.

The male Plaintiff claims serious and debilitating injuries which he says have persisted over the twelve years since the accident. The female Plaintiff is his adult interdependent partner. She was not involved in the accident. It is her claim for loss of consortium that is now an issue.

The parties lived together for about four years before the accident and continue to reside together. [ 2 ] A claim for loss of consortium is codified in s. 2.1 of the Tort-feasors Act , RSA 2000,c T-5: 2.1(1) When a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm on a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable in an action for damages by the spouse or in respect of the deprivation.

(2) The right of a spouse to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the married person has, or any action that the spouse in the name of the married person has, for injury inflicted on the married person.

[3] This cause of action was formerly found in the Domestic Relations Act, RSA 2000, c. D-14, section 46(1) which curiouslygave the remedy to the injured married person rather than the uninjured spouse. The remedy was reversed in the current Tort-feasors Act. [4] On the plain language of s.2.1, the legislative branch of government has clearly chosen to restrict loss of consortium claimsin Alberta to the “spouse” of a “married person”.

This conclusion is reinforced by the reference in s.3 of the Adult InterdependentRelationship Act, SA 2002, c A-4.5, in a different context, so that “spouse” cannot be read to include an adult interdependent partner. [5] The Adult Interdependent Relationship Act at s.1(1)(

g) defines “spouse” as “the husband or wife of a married person.” ThisAct does not convey to the adult interdependent partner any loss of consortium rights against third parties. [6] The

Interpretation Act, RSA 2000, c I-8 contains the same definition for “spouse”. [7] At common law, only the husband had a claim for loss of consortium. The abolition of that medieval concept wasaddressed by a 1969 report of the Ontario Law Reform Commission cited in Canestraro v.

Larade (ON SC), [1972], 3O.R. 382. [8] In Alberta, the replacement of the restricted common law right with a similar right in both the wife and the husband wascodified first in the Domestic Relations Act and now in the Tort-feasors Act. [9] Counsel have not been able to refer me to any Alberta authority dealing with the extension of this claim to unmarriedpartners. There is a Saskatchewan decision in which a loss of consortium claim by a husband was denied on the basis that he and his“common law” partner were not married. Larsen and Larsen v.

Prince Albert and Northern Bus Lines Limited, (SKKB), 2 W.W.R. (NS) 625. That case, however, predates the legislative reforms to the common law principle. [10] The result is that the female Plaintiff in this action has no claim in law for loss of consortium arising from the tortuous injuryto her adult interdependent partner. Heard on the 21st day of November, 2011 to the 16th day of December, 2011. Dated at the City of Calgary, Alberta this 15th day of December, . T.F. McMahon J.C.Q.B.A. Appearances: Clint G. Docken, Q.C. Patrick B. Higgerty William Quigley

for the Plaintiffs Ray S. Wong Dan Downe, Q.C. for the Defendants