Dotto Estate v. Thickson, 2013 ABQB 348

Court of Queen ’ s Bench of Alberta Citation: Dotto Estate v. Thickson, 2013 ABQB 348 Date: 20130617 Docket: 0803 11418 Registry: Edmonton Between: Gerard Dotto Administrator of the Estate of David Dotto, Deceased, Gerard Dotto, Lorraine Dotto and Tracy Atkin Plaintiffs - and - Tevya Wesley Thickson and Angela Tibo Defendants - and - Alberta Motor Association Insurance Company Third Party _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________

[ 1 ] This is the AMA ’ s application to strike a wrongful death action, and a cross application for the determination of a point of law. [ 2 ] The facts are simple enough. It all started with an altercation just off Whyte Avenue early on an August morning in 2006. David Dotto (the deceased) was drunk and bellicose. He and his companions were going home. They taunted the occupants of another vehicle who replied in kind. The exchange enraged, Mr. Thickson, the 15 year old driver of the other vehicle. [ 3 ] The two groups would not disengage. Things escalated. Mr. Dotto approached the other vehicle ready to fight.

Mr. Thickson responded by knocking him down with the car. Mr. Dotto died six days later in hospital. [ 4 ] This action was started against the driver and the owner of the car that killed Mr. Dotto. The Plaintiff, Tracy Atkin, is the late Mr. Dotto ’ s partner. [ 5 ] Not surprisingly, the motor vehicle liability insurer denied liability and got on as a Third Party by Order pursuant to

section 579 of the Insurance Act , R.S.A 2000, c. I-3. It is their application to strike Ms. Atkin ’ s claim. Ms. Atkin brings a cross application for the determination of a point of law. The Fatal Accidents Act claims of the other Plaintiffs have been settled. [ 6 ] Mr. Dotto and Ms. Atkin started out as classmates. They became close friends, then companions; and then, cohabitants. Mr. Dotto was an apprentice electrician. Ms. Atkin was studying psychology at University. They planned to marry when she graduated but they were not engaged. They had lived together for just over 16 months before Mr.

Thickson killed Mr. Dotto with Ms. Tibo ’ s car. [ 7 ] Tracy Atkin sues in her own right as ‘ common-law-spouse of the deceased ’ . She also claims what appears to be a derivative right to lost valuable services and financial support ( inter alia ) through Mr. Dotto ’ s estate. That is what the point of law is about. [ 8 ] The lawsuit is straightforward enough. The premise is that the deceased would have continued to earn an income and Ms. Atkin would have benefited from it during their life together. Part of it is that Ms. Atkins contributions to the household can be measured financially.

An expert estimates her loss to be in the area of $600,000.00. [ 9 ] To put it plainly, the AMA ’ s position is that you cannot be liable to someone for killing their boyfriend (or girlfriend, as the case may be). Spouse? Yes. Parent or child? Yes. Adult Interdependent Partner? Yes. But not for anything less. The AMA farther argues that Ms. Atkin has no claim through the Estate. [ 10 ] This is not simply an indelicate position taken in Ms. Atkin ’ s time of grief, it has strong support in the law. But it goes without saying that this area of the law is in a less than satisfactory state.

The problem began with the somewhat dogmatic statement of Lord Ellenborough that: “ In a civil court the death of a human being could not be complained of as an injury. ” Baker v. Boulton (1808) 1 Camp. 493; 10 RR 734. It didn ’ t matter what the relationship was. [ 11 ] Holdsworth, (and others), point out that no authority was cited by Lord Ellenborough for this proposition. ( “ The Origin of the rule in Baker v. Boulton, ” 1916, 32 L.Q.R.431, G.S. Holdsworth; see also the Alberta Law Reform Institute Report for Discussion No. 12: Non- Pecuniary Damages in Wrongful Death Actions - a review of

section 8 of the Fatal Accidents Act, Report for Discussion, No. 12, June 1992). There seems to be consensus that the statement may have been based on the so called ‘ felony-merger ’ doctrine by which the individual (civil) right is subsumed in the public wrong; a doctrine which has doubtful applicability to this jurisdiction and, at any rate, may not apply to every set of facts when there is a wrongful death because not every act or omission causing death is also a crime. Our Court of Appeal said in Ferraiuolo v.

Olson , 2004, ABCA 281 (at para. 22 ): “ ... when one examines each of the theories, it becomes clear that none offer a defensible and principled justification for the deficiencies of the common law on this front. ” [ 12 ] We can only speculate about what was in the great judge ’ s mind when he posited what is now known as the rule in Baker v.

Boulton. The case is of such antiquity, it might just as well have been Cain’s response to God in the Fourth

Chapter of the Book ofGenesis and the absence of an award of damages flowing to Abel’s estate. All we know for sure is that the rule has never beensuccessfully challenged. It has been adhered to for over 200 years. The main exceptions are statutory. [13] The maxim actio personalis motitur cum persona (personal causes of actions die with the person) applies to estate claims.This maxim prevents a deceased’s estate from recovering damages for wrongful death.

However, as Holdsworth notes (supra), there is noreason that actio personalis should apply to survivors of the deceased because both Plaintiff and Defendant are still alive. [14] The actio personalis rule has few exceptions. The harsh results it produced were ameliorated somewhat by Survival ofActions legislation, which arrived in this jurisdiction in 1903 (O.N.W.T. 1903 c. 11, s.29). The similarly harsh effects of the rule inBaker v. Boulton was diminished by Fatal Accidents Legislation; which had its origin in Lord Campbell’s Act in England in 1846. [15] The rule in Baker v.

Boulton is very difficult to reconcile with developments in the common law over the past 200 years. i Per quod servitium amisit [16] If it exists, an action per quod servitium amisit may be a common law exception to the rule. The exception may apply if theperson killed is a servant, or an employee. This is said to go back to Roman law where, (naturally), one could expect to be liable forkilling another’s slave. The claim is premised on the idea of having ownership in another person and a corresponding loss if someoneharms or kills them.

Roman lawyers were apparently zealous not to apply concepts that applied to slaves to free men. So this ancientexception to a bad rule, (if it is indeed a cause of action; see - Pure Economic Loss in Canadian Negligence Law, Professor R. Brown,(as he then was) Lexis Nexis Ch. 2,

E) is, ironically, based not only on a relationship that is inherently wrong, but also on maintaining theintegrity of a distinction that is fundamentally unjust. It also isn’t much use to Ms. Atkin because Mr. Dotto was not in any legal senseher servant or employee. ii Individual causes of action [17] Survivors may have a claim for nervous shock and, possibly, a range of other torts arising out of the same circumstances thatalso caused death.

The existence of these causes of action depends on the law drawing a distinction between harm the tortfeasor causesthe Plaintiff directly, and harm arising consequentially from death. Unfortunately, none of these causes of action are available to Ms.Atkin on the facts. iii Negligence [18] The rule in Baker v. Boulton is completely out of step with developments in the law of negligence. In terms of ordinarynegligence, policy would seem to favour a duty rather than negativing one. However, the type of loss to Ms.

Atkin, being economicrather than physical, casts us squarely into the somewhat technical area of relational economic loss. iv Relational Economic Loss [19] A portion of Ms. Atkin’s loss is relational; arising for Ms. Atkin because of the harm suffered by Mr. Dotto. At one time itwas thought that one party could recover economic loss arising from physical loss suffered by someone else. For example, a tortfeasorcould run a barge into a bridge owned by a third party and be liable to the user of the bridge for the economic harm suffered by them: Canadian National Railway Co. v.

Norsk Pacific Steamship Co. (SCC), [1992] S.C.J. No. 40, [1992] 1 S.C.R. 1021.This principle would seem to support Ms. Atkin’s claim. Now it is no longer so clear; unless the claimant falls into one of the categoriesthat are said to be an exception to a general exclusionary rule baring claims for relational economic loss: Bow Valley Husky (Bermuda)Ltd. v. St. John Ship Building Ltd. (SCC), [1997] S.C.J. No. 111, [1997] 3 S.C.R. 1210. One of the exceptions is thenebulous category of “joint venture,” but it is very unlikely that Ms. Atkins and Mr. Dotto’s relationship would fit this legal category.

[ 20 ] None of the possible common law avenues to recovery avail Ms. Atkin. The roads all take us to the impasse created by the rule in Baker v. Boulton and the few statutory exceptions to that rule. The power of the cases sustaining the rule might be diminished if they were closely read in historical context, against the backdrop of other developments in the common law over the past 200 years but the end of this long and dusty trail might only be the morass of relational economic loss. And that isn ’ t any help either. So, it appears the legislative exceptions are all Ms. Atkin has left.

The Estate Claim [ 21 ] There seems to be little doubt that a quantum meruit claim for services rendered to someone, now deceased, may survive as a claim against the estate. Likewise, spousal support Orders bind the estate (regardless of whether the partners were married, or in an Adult Interdependent Relationship): Family Law Act , R.S.A. 2003, c. F-4.5

section 80. But, a claim against the estate does not, in turn, confer a cause of action upon the estate against the tortfeasor. [ 22 ] The problem with Ms. Atkin ’ s ‘ estate claim ’ is that section 5(2)(

c) of the Survival of Actions Act provides that: “ damages in relation to future earnings, including damages for loss of earning capacity, ability to earn or chance of future earnings ” are not recoverable by the estate. Ms. Atkin ’ s claim against Mr. Thickson is not recoverable, indirectly, through the estate. If there is to be any claim at all, she would have to be able to claim it directly in her own right. [ 23 ] Our Fatal Accidents Legislation is remedial legislation which gives a statutory claim to children, parents, spouse and Adult Interdependent Partners (AIPS) of the deceased.

The Act speaks of “ conferring a cause of action ” upon these claimants (section 8(5)). [ 24 ] “ Spouse ” is not defined by the Fatal Accidents Act . It is defined by the

Interpretation Act, R.S.A. 2000, c. I-8

section 28(zz.1) (and see section 1(1)(

g) of the AIP Act) to mean ‘ the husband or wife of a married person ’ . Ms. Atkin ’ s was not Mr. Dotto ’ s “ spouse ” . [ 25 ] The Act provides: 1(1) (a) “ Adult interdependent partner ” means an adult interdependent partner within the meaning of

section 3, but does not include a former adult interdependent partner; Adult Interdependent partner 3(1) Subject to subsection (2), a person is the adult interdependent partner of another person if (

a) the person has lived with the other person in a relationship of interdependence (

i) for a continuous period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption, or (

b) the person has entered into an adult interdependent partner agreement with the other person under

section 7. Adult Interdependent partner agreement

7(1) Subject to subsection (2), any 2 persons who are living together or intend to live together in a relationship of interdependencemay enter into an adult interdependent partner agreement in the form provided for by the regulations. [26] The legislature may have intended to set a standard for determining status by establishing, in part, a bright-line rule based onlength of cohabitation. Once this requirement is met it is no longer necessary to weigh or apply the many factors once considered by thecommon law. (See for example Medora v. Kohn

(2003) ABQB 700, per Kenny, J.; Spracklin v. Kichton (2000), (AB KB), 95 Alta. L.R. (3d) 371, per Watson J. at para. 42, citing Mahoney v. King (1998), (ON SC), 39 R.F.L. (4th) 361 at 365. [27] Ms. Atkin and Mr. Dotto were in a ‘marriage-like’ relationship. Ms. Atkin could, arguably, be said to have had ‘spousestatus,’ as that test emerges from the decided case leading up to the AIP Act but she was not a spouse as defined in the legislation. Ms.Atkin and Mr. Dotto lived together in a ‘relationship of interdependence’ as that term is used in the Act. The problem is that Ms. Atkinand Mr.

Dotto hadn’t lived together for three years before Mr. Thickson killed Mr. Dotto. [28] The Regulations under the Adult Interdependent Partner Act provide for a form of agreement that obviates the need for threeyears of cohabitation: (then AR 141/2003, now AR 66/2011). There is no express requirement beyond the implication of the existence ofthe form that the agreement be in writing. In this case, the Plaintiff and the Deceased were in a close and committed relationship. Thecontent of the agreement appears to have been present though the writing was absent.

It strikes me that if the Defendant can escapeliability as a result of the Plaintiff failing to formally document her relationship, this is merely one of the additional ways a tortfeasor canimprove his position by killing his victim rather than just injuring him. [29] Formality may be secondary to the purpose of the Act. In Hensch Estate, 2008 ABQB 406, Bielby J. (as she then was) said: [44] While no judicial

interpretation of any of these phrases apparently exists to date, reflection on the purpose of the legislation asillustrated in the Hansard extracts and through the provisions of the Act itself displays the goal of the prevention of hardship in caseswhere one person is dependant on another and that dependency ends through separation or death. The type of dependency aimed at mustbe more than emotional dependency because the AIRA does not contain a remedy for grief or heartbreak.

The relief it offers is directedsolely at remedying the hardship caused by terminating a financial dependency. [30] I find it difficult to think that the intent of the Legislature was to use a bright-line rule as a sword rather than a gauge, or tomake the absence of formality of agreement fatal to a remedy, especially in this context. Indeed, it could probably be said that thehallmark of many Adult Interdependent relationships is that the partners sought informality and avoided formality; in particular, theformality of marriage. [31] Furthermore, at least two cases have shown an inclination to read

section 8 of the Fatal Accidents Act expansively, orinclusively by severing limits to the scope of claimants under the Act: Lemke v. Juckes Esate, 2000, 273 A.R. 274, 2000 ABQB 776(which severed the age limit formerly found in section 8(2)(b); Ferraiuolo v. Olson, 2004 ABCA 281, which severed the age limits inthen section 8(2)(c)). The history in this area of the law was compassionately rendered in the Ferraiuolo case by Chief Justice Fraser forour Court of Appeal. [32]

Summary judgment will not be granted where there are triable questions of law: Leeds v. Alberta (Minister of theEnvironment), (1989) 1989 ABCA 208 , 6 W.W.R. 559 (CA). I do not know whether the Court will finally take thisopportunity to acknowledge that things now are not as they were in 1808 but there appear to be several triable issues of law. Even thoughthey might be longshots, I am not willing to strike this claim. [33] The AMA application for

summary dismissal is dismissed. The point of law is against Ms. Atkin. Given the mixed success,each party will bear their own costs. Heard on the 11th day of February, 2013.

Dated at the City of Edmonton, Alberta this 17 th day of June, 2013. W. S. Schlosser M.C.C.Q.B.A. Appearances: Craig Lupul Lovatt LLP for the Plaintiffs Ken Blake AMA Insurance for AMA, Third Party by Order