2014 NBCA 65, 2014 NBCA 65

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 102-13-CA THE ESTATE OF CAROLINE J. HIGGINS APPELLANT LA SUCCESSION DE CAROLINE J. HIGGINS APPELANTE - and - - et - DAVID A. ARSENEAU RESPONDENT DAVID A. ARSENEAU INTIMÉ The Estate of Caroline J. Higgins v. Arseneau, 2014 NBCA 65 La succession de Caroline J. Higgins c.

Arseneau, 2014 NBCA 65 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Deschênes CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Deschênes Appeal from a decision of the Court of Queen’s Bench: October 8, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 8 octobre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 332 Décision frappée d’appel : 2013 NBBR 332 Preliminary or incidental proceedings: Court of Appeal: [2014] N.B.J.

No. 14 Procédures préliminaires ou accessoires : Cour d’appel : [2014] A.N.-B. n o 14 Appeal heard and judgment rendered: June 16, 2014 Appel entendu et jugement rendu : le 16 juin 2014

Reasons delivered: November 6, 2014 Motifs déposés : le 6 novembre 2014 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Deschênes Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Deschênes Counsel at hearing: For the appellant: George A. McAllister, Q.C. For the respondent: David G. O’Brien, Q.C. and Patrick J.O. Dunn Avocats à l’audience : Pour l’appelante : George A. McAllister, c.r. Pour l’intimé : David G. O’Brien, c.r., et Patrick J.O.

Dunn THE COURT The present appeal is against the determination by a judge of the Court of Queen’s Bench that damages recoverable pursuant to New Brunswick’s survival of actions statute do not include damages for the loss of income the deceased might have earned had he or she not died. At the conclusion of the hearing on June 16, 2014, the Court dismissed the appeal, with reasons to follow. LA COUR Il s’agit d’un appel interjeté à l’encontre de la décision d’un juge de la Cour du Banc de la Reine portant que les dommages-intérêts recouvrables sous le régime de la

Loi sur la survie des actions en justice du Nouveau-Brunswick ne comportent pas de dommages-intérêts pour la perte des revenus que la personne défunte aurait pu gagner si elle n’était pas décédée. À la clôture de l’audience, le 16 juin 2014, la Cour a rejeté l’appel en précisant que des motifs seraient déposés ultérieurement. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] At common law, an action for personal injuries did not survive the death of the injured party.

Happily, that rule no longer avails in its absolute form in most, if not all, Canadian common law jurisdictions as a result of survival of actions statutes. In this province, the modern version of the legislation, at least insofar as recovery of damages for pecuniary loss is

concerned, conforms in all material respects to the recommendations put forward in the 1960s by the Conference of Commissioners on Uniformity of Legislation in Canada. The substantive issue for consideration here, one of first impression for this Court, is whether the recovery-enabling provision of the statute in question allows the fatally injured party’s estate to recover damages for the loss of income he or she could have earned had death not occurred. A judge of the Court of Queen’s Bench determined it did not: Donald J. Higgins as the Executor of the Estate of Caroline J. Higgins et al. v. David A.

Arseneau , 2013 NBQB 332 , 410 N.B.R. (2d) 354 . [ 2 ] At the time of the roadway accident that gave rise to the underlying litigation, s. 2(1) of the Survival of Actions Act, R.S.N.B. 1973, c. S-18, stated that, all causes of action “vested in a person who dies after April 1, 1969, survive for the benefit of the estate”. Section 5(1) provided that when a cause of action survived for the benefit of the estate, only damages that resulted “in actual pecuniary loss to the deceased person or the estate” were recoverable. [ 3 ] Relying primarily upon the majority opinion in Duncan Estate v.

Baddeley , 1997 ABCA 100 , [1997] A.J. No. 339 (QL) , leave to appeal denied [1997] S.C.C.A. No. 315, and borrowing from concepts developed for the assessment of damages for post-trial loss of income or earning capacity sustained by living claimants, the estate of Caroline J. Higgins (“the Estate”) urges reversal, arguing the income she would have earned subsequent to death (during what is commonly called the “lost years”) is a capital asset. In the Estate’s submission, the loss of that asset is an “actual pecuniary loss”, if not to Ms.

Higgins personally, then to her estate. [ 4 ] For his part, the respondent, David Arseneau, contends this submission is untenable because it is based entirely on a fiction, there being, to the assessing court’s knowledge, no more than the potentiality of an asset at the time of death, and no real asset following death. He submits the term “actual” was inserted in s. 5 to make plain that surviving rights relate to existing as opposed to “future” losses, the dividing event being death. Mr.

Arseneau points to affidavit evidence showing the Conference of Commissioners on Uniformity of Legislation in Canada and, more saliently, the Legislature understood, at the time of section 5(1)’s adoption, that it excluded recovery of damages for “loss” of income or earning capacity during the lost years. Mr. Arseneau emphasizes courts in all Atlantic Provinces have unanimously rejected the expansive

interpretation favored by the majority in Duncan Estate v. Baddeley and disallowed claims for any such loss. [ 5 ] By way of rejoinder, the Estate argues the narrower

interpretation adopted and applied elsewhere is traceable to differences in wording between the recovery-enabling provision at issue in each of those cases and s. 5(1) of our survival of actions statute. The key difference would be that, under our statute, like the one in play in Duncan Estate v. Baddeley , and unlike Nova Scotia’s for example, damages are recoverable not only for actual pecuniary losses to the estate, but, as well, to the deceased person. [ 6 ] Briefly stated, my view is this. The legislative context, both immediate and general, compels rejection of the expansive

interpretation of the phrase “actual pecuniary loss” adopted in Duncan Estate v. Baddeley . It is so because that

interpretation is disharmonious with and makes redundant the word “actual”, which means “existing in fact”, and brings about a result at odds with the Legislature’s stated intention at the time of s. 5(1)’s adoption. [ 7 ] I close these introductory remarks by recording that I am not without knowing the narrower

interpretation of the phrase “actual pecuniary loss” will occasionally limit the wrongdoer’s liability to relatively insignificant pecuniary damages, as may be the case here. That is the policy choice the Legislature made in the exercise of its sovereign authority over such matters, and all judges are duty bound to give effect to constitutionally valid legislation. Needless to say, no judge is entitled to disregard legislation solely because it reflects what he or she views as an insufficiently claimant-friendly public policy. Importantly, the object of s. 5(1) is compensatory, not punitive. II.

The Context [ 8 ] The present appeal is from the determination of a question of law under Rule 23.01(1)(

a) of the Rules of Court . By virtue of that rule, a plaintiff or a defendant may at any time before the action is set down for trial apply for the determination of a question of law. The question must be raised by a pleading and there must be a real and substantial possibility that its determination will dispose of the action, shorten the trial, or result in a substantial saving of costs.

Absent exceptional circumstances, the determination stands to be made solely on the basis of the pleadings and evidence of the kind allowed by Rule 23.02 (a transcript of a relevant examination or an affidavit required to identify or prove the execution of a document): D oiron and Careau v. Hogan , 2001 NBCA 97 , 243 N.B.R. (2d) 263 , at para. 40 and Co-operators General Insurance v. Richard, O’Regan, Les Fermes Gervais, Gervais and Les Fermes Dionne/Dionne Farms , 2002 NBCA 98 , 255 N.B.R. (2d) 6 , at paras. 41-42 , Deschênes J.A. for the Court.

In my view, exceptionality in this context is shaped by the interests of justice. [ 9 ] In LeBlanc v. Boisvert , 2005 NBCA 115 , 294 N.B.R. (2d) 325 , the Court underscored the

helpful role Rule 23.01(1)(

a) can play in securing the just, least expensive and most expeditious determination of proceedings on their merits. Nonetheless, it cautioned against the application of the rule to resolve “unsettled, c omplex and difficult questions of statutory

interpretation whose determination would be facilitated by a consideration of evidence, be it only evidence pertaining to the provision’s object, and the Legislature’s intention in relation thereto, and whose determination would, as well, benefit from the refinement and honing of arguments that typically takes place over the course of pre-trial preparation and at the trial itself” (para. 35). In that case, the Court dismissed the application under Rule 23.01(1)(

a) because the question raised fell into the “unsettled, complex and difficult” category and its determination hinged on “correctly identifying the precise contours of a relatively novel insurance scheme and the true intention of the drafters of the ambiguous legislation that seeks to give it expression”, all without any evidence on point (para. 36). That is not the case here. A. The pleadings [ 10 ] The plaintiffs, Donald J. Higgins (as the executor of the Estate) and the Estate itself, assert in the Statement of Claim that “on June 20, 2010, Caroline J.

Higgins was jogging in an easterly direction on the sidewalk on the north side of the Bridge Road [in] Saint John, when suddenly and without warning, [Mr. Arseneau], who was driving [his] motorcycle in an easterly direction on Bridge Road, negligently lost control of [his] motorcycle and struck [Ms. Higgins] causing her death”. The plaintiffs go on to allege Mr. Arseneau was negligent in failing to: keep a proper lookout; keep his motorcycle under control; and brake in time to avoid the collision. They also aver Mr. Arseneau violated the Motor Vehicle Act, R.S.N.B. 1973, c.

M-17, by driving a motorcycle that was unsafe and doing so without due care and attention, at a speed in excess of the posted or safe limit and without reasonable consideration for any other person using the highway. They conclude with the allegation that Mr. Arseneau drove while impaired by fatigue, alcohol or drugs. I note parenthetically that the plaintiffs have filed an Answer to the Defendant’s Demand for Particulars in which they advance a claim for punitive and exemplary damages. [ 11 ] The plaintiffs state Mr.

Higgins, qua executor of the Estate, brings the action pursuant to s. 3(1) of the Fatal Accidents Act , R.S.N.B. 1973, c. F-7 for his own benefit and that of Ms. Higgins’ “parents, children, brothers and sisters”, which are identified as: Name Age Address Occupation Mother Sheila Anne Higgins 77 28 Grant Cres. Saint John, NB Retired Brother Donald James Higgins 51 19 Partridge Rd. Rothesay, NB Lawyer Sisters Anne Maureen Higgins Mary Ellen Higgins Kelly Lynn Higgins Siobhan Kathleen Higgins 49 47 45 52 96 England Circle Charlottetown, PE 4 Pugsley Ct. Rothesay, NB 817-111 Davisville Ave.

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[ 12 ] The plaintiffs plead, as well, ss. 3(2) and 3(3) of the Fatal Accidents Act , and assert Ms. Higgins “would have provided maintenance and support for her parents, children, brothers and sisters for the remainder of her life and left her Estate to them for their enjoyment, maintenance and support”. Sections 3(1) , (2) and (3) read as follows: 3(1) Every action under this Act shall be for the benefit of the spouse, parent, child, brother and sister, or any of them, of the deceased, and except as hereinafter provided, shall be brought by and in the name of the executor or administrator. 3

(2) Subject to subsection (3), in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought. 3

(3) Where an action has been brought under this Act there may be included in the damages awarded an amount sufficient to cover the reasonable expenses of the funeral and the disposal of the body of the deceased if those expenses were incurred by any of the persons by whom or for whose benefit the action is brought. [Emphasis added.] 3(1) Toute action intentée en vertu de la présente loi doit l’être en faveur d’un conjoint, d’un parent, d’un enfant, d’un frère et d’une sœur de la victime, ou d’un de ceux- ci, et, sauf disposition contraire de la présente loi, elle est intentée par l’exécuteur testamentaire ou l’administrateur en son propre nom. 3

(2) Sous réserve du paragraphe (3), dans toute action de ce genre, les dommages- intérêts proportionnels à la perte pécuniaire résultant du décès doivent être attribués respectivement aux personnes en faveur de qui l’action est intentée. 3

(3) Lorsqu’une action a été intentée en vertu de la présente loi, les dommages-intérêts accordés peuvent comprendre un montant suffisant pour couvrir les frais funéraires et d’obsèques raisonnables de la victime si ces frais ont été supportés par l’une des personnes par qui ou en faveur de qui l’action a été intentée. [C’est moi qui souligne.] [ 13 ] The plaintiffs also state the Estate brings the action pursuant to s. 5 of the Survival of Actions Act , which reads as follows: 5(1) Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include damages for loss of expectation of life, pain and suffering or physical disfigurement. 5

(2) Notwithstanding subsection (1), where the person in whom the cause of action is vested dies on or after January 1, 1993, the damages recoverable may include punitive or exemplary damages in appropriate cases. [Emphasis added.] 5(1) Lorsqu’une cause d’action survit au profit de la succession d’un défunt, seuls les dommages qui ont causé une perte pécuniaire véritable pour le défunt ou pour sa succession peuvent faire l’objet d’un recouvrement et, sans restreindre la portée générale de ce qui précède, les dommages-intérêts recouvrables ne doivent pas comporter de dommages- intérêts pour perte d’espérance de vie, pour douleurs et pour souffrances ou préjudice esthétique. 5

(2) Nonobstant le paragraphe (1), lorsque la personne qui a le droit d’action meurt le ou après le 1er janvier 1993, les dommages- intérêts recouvrables peuvent comporter des dommages-intérêts punitifs ou exemplaires dans les cas appropriés. [C’est moi qui souligne.] [ 14 ] In addition, the plaintiffs plead s. 2 of the Survival of Actions Act :

2(1) All causes of action vested in a person who dies after April 1, 1969, survive for the benefit of the estate. 2(2) The rights conferred by subsection (1) are in addition to and not in derogation of any rights conferred by the Fatal Accidents Act . 2(1) Toutes les causes d’action qu’a une personne qui meurt après le 1 er avril 1969, survivent au profit de sa succession. 2(2) Les droits conférés par le paragraphe (1) s’ajoutent, sans y déroger, aux droits conférés par la

Loi sur les accidents mortels . [ 15 ] While the Statement of Claim does not feature an explicit claim of damages for “actual pecuniary loss” to Ms. Higgins or the Estate, it does contain an allegation that they suffered “pecuniary losses” as a result of her death. Special damages are sought for funeral expenses, flowers, tombstone and “miscellaneous”, but not for unearned income for the period between death and trial.

However, “general damages” are claimed in paragraph 18(a). [ 16 ] I pause to record that the Survival of Actions Act and the Fatal Accidents Act in effect at the time of the June 20, 2010 accident have been replaced by the Survival of Actions Act, R.S.N.B. 2011, c. 227 and the Fatal Accidents Act , R.S.N.B. 2012, c. 104. Section 5(1) of the former Survival of Actions Act is continued in s. 6(1) of the current Act .

In the text that follows, references are to the provisions of the Survival of Actions Act and the Fatal Accidents Act in effect at the time of the accident, unless the context dictates otherwise. [ 17 ] Following delivery of the Statement of Claim, Mr. Arseneau filed and served a Demand for Particulars of the “general damages” claimed in paragraph 18(

a) of the Statement of Claim and, more specifically, answers to the following questions: 3. As to paragraph 18(a) […]: a. Is the claim for general damages a claim for pecuniary or non-pecuniary general damages? b. If this claim for general damages is or includes a claim for pecuniary general damages: i. What is the nature of the pecuniary loss under this head of damages that the Estate is alleged to have suffered? ii. Is the claim for pecuniary damages limited to a claim on behalf of the surviving mother, brother and sisters of Caroline J. Higgins under the Fatal Accidents Act , R.S.N.B. 1973, c. F-7? iii.

Does the claim for pecuniary general damages include a claim under the Survival of Actions Act , R.S.N.B. 2011, c. 227 by the Estate of Caroline J. Higgins for future loss of income or loss of earning capacity suffered by the deceased person or the Estate? [ 18 ] In paragraph 1(b)(

i) of their February 23, 2013 Answer to the Defendant’s Demand for Particulars, the plaintiffs confirm the Estate “will be relying on the ‘available surplus approach’ in assessing the Plaintiff’s claim pursuant to the Survival of Actions Act which was set out and adopted by the Alberta Court of Appeal in Duncan Estate v. Baddeley ”. In paragraph 3(b)(iii), they add “the Estate […] claims ‘actual pecuniary loss’ and intends to rely on the methodology set out in Duncan Estate v. Baddeley […] which will include an assessment of what Caroline J.

Higgins would have earned during her lifetime”. [ 19 ] In his Statement of Defence, Mr. Arseneau denies either plaintiff is legally entitled to recover damages for “future or prospective loss of income or earning capacity” consequential upon Ms. Higgins’ death, whether as an actual pecuniary loss “pursuant to s. 6(1) of the [2011] Survival of Actions Act or otherwise (including as such claim is particularized in paragraphs 1 (b)(

i) and 3(b)(iii) of the Plaintiffs’ Answer to the Defendant’s Demand for Particulars dated February 5, 2013)”. B. The motion

[ 20 ] Mr. Arseneau applied by way of Notice of Motion for a determination under Rule 23.01(1)(

a) of the following question of law: Is the Plaintiff Estate of Caroline J. Higgins entitled to recover damages for loss of future or prospective earnings, or loss of earning capacity, as a result of the death of Caroline J. Higgins pursuant to the Survival of Actions Act , R.S.N.B. 2011, c. 227, or otherwise? [ 21 ] Mr. Arseneau also sought an order pursuant to Rule 23.01(1)(

b) striking “those portions of the Plaintiffs’ Statement of Claim and Statement of Particulars claiming damages for loss of future or prospective earnings, or loss of earning capacity, as a result of the death of Caroline J. Higgins […]”. [ 22 ] Three affidavits were filed in support of the motion. [ 23 ] The affidavit of Marie Bordeleau, the executive director of the Uniform Law Conference of Canada, explains that the Conference was known, until 1974, as the Conference of Commissioners on Uniformity of Legislation in Canada, which was established in 1918 to secure uniformity of legislation.

The Conference’s current mandate includes facilitating and promoting “the harmonization of laws throughout Canada by developing, at the request of the constituent jurisdictions, Uniform Acts, Model Acts, Statements of Legal Principles and other documents deemed appropriate to meet the demands that are presented to it by the constituent jurisdictions from time to time”. Attached to her affidavit are copies of extracts from the record of the proceedings of the 43 rd , 44 th and 45 th annual meetings of the Conference of Commissioners on Uniformity of Legislation in Canada held in 1961, 1962 and 1963, respectively.

Section 6 of the final revised model Survival of Actions Act (Appendix Q to the report for 1963) contemplated recovery of “only damages that have resulted in actual pecuniary loss to the deceased person or the estate”, which is precisely the standard set by our statute. As will be seen, the prevailing view was that an explicit exclusion of compensation for loss of expectancy of earnings subsequent to death was unnecessary because no right to same survived. [ 24 ] The affidavit of Donald J.

Forestell, the Clerk of the Legislative Assembly of New Brunswick and the custodian of its records, placed before the motion judge a copy of extracts of the “Synoptic Report of the Proceedings of the Second Session of the Forty-Sixth Legislative Assembly of the Province of New Brunswick, 1969, Vol. 1”. The pertinent proceedings relate to Bill 63 ( Survival of Actions Act ) and Bill 64 ( Fatal Accidents Act ), and show both Bills reflected “model” legislation proposed by the Conference of Commissioners on Uniformity of Legislation in Canada. [ 25 ] In the third and final affidavit, David G.

O’Brien, Q.C., a member of the law firm acting as Mr. Arseneau’s solicitors of record, attaches for the motion judge’s consideration a copy of the Statement of Claim, the Demand for Particulars, the Answer to the Defendant’s Demand for Particulars and the Statement of Defence. In addition, Mr. O’Brien ventures the opinion that a negative answer to the question posed in the Notice of Motion would render irrelevant a host of issues, a result that “will simplify and shorten the discovery of documents, oral discovery, and trial, and also result in a substantial saving of litigation costs”. C.

The decision in the Court of Queen’s Bench [ 26 ] The motion judge allowed into the record Mr. O’Brien’s affidavit, but disregarded his statement of opinion regarding the usefulness of the sought-after legal determination. As for the Bordeleau and Forestell affidavits, no issue was taken with their admissibility, but the judge admitted them in evidence for a limited purpose: they would assist “not in interpreting the Survival of Actions Act but, rather, uniquely in assessing the nature of the record” before the court in Estate of Adams et al. v.

McKiel and Loyal Taxi , 2012 NBQB 106 , 387 N.B.R. (2d) 140 , where Clendening J. ruled damages for loss of earnings in the “future” (meaning post-death) were not recoverable by the deceased’s estate under the Survival of Actions Act . The motion judge considered judicial comity and stare decisis compelled him to follow, “without more”, her ruling (para. 46).

As a result, he determined the plaintiffs were not entitled to recover damages for loss of “future” or “prospective” earnings or loss of earning capacity: Counsel for the plaintiff fairly acknowledged that I am in no better or different position than Clendening J. was in Adams Estate v. McKiel . In the end, for this Court to embark on its own interpretative course guided by the competing arguments made here on essentially the same material put before my sister judge only last year would be to fail to respect precedent, to ignore the importance of judicial comity; in short, to abandon stare decisis .

I am not prepared to do so for the reasons set out in Re: Hansard Spruce Mills , supra. Rather, I simply follow Adams Estate v. McKiel , supra.

[…] Consequently, pursuant to Rule 23.01(1)(

a) of the Rules of Court I answer the legal question in the negative: The Plaintiff Estate of Caroline J. Higgins is not entitled to recover damages for loss of future or prospective earnings or loss of earning capacity, as a result of the death of Caroline J.

Higgins, pursuant to the Survival of Actions Act, R.S.N.B. 2011, c. 227 . [paras. 51-52] Despite the interpretative determination’s reference to the 2011 Survival of Actions Act , all agree it applies, as well, to the Survival of Actions Act in effect at the time of the accident. [ 27 ] Additionally, in the law of damages, future or prospective losses relate to the post-trial period.

However, it is common ground that, by the use of the phrase “future or prospective earnings or loss of earning capacity”, the motion judge meant to address post-death earnings or earning capacity, not just future or prospective earnings or loss of earning capacity from the date of trial forward. D. The case, in abridged form, for and against reversal [ 28 ] The Estate contests the legal determination on procedural grounds.

It submits the motion judge erred: (1) in concluding the issue raised by the Notice of Motion constituted a motion for the determination of a question of law raised by the pleadings; (2) in interpreting the Survival of Actions Act without the benefit of an evidentiary record of the kind mentioned in LeBlanc v. Boisvert ; and (3) in applying the doctrines of judicial comity and stare decisis on a motion under Rule 23.01(1)(a).

That Rule requires, so goes the argument, a determination by the motion judge him- or herself, and an unquestioned acceptance of a colleague’s determination in another case does not pass muster. That said, it is conceded the issue is now moot, our Court having to pass upon the correctness of the determination, not the reasons given in support. The Estate also submits the motion judge erred in admitting the three affidavits mentioned above. It argues the judge admitted those affidavits “without a principled reason” and used them inappropriately to apply the doctrines of judicial comity and stare decisis .

Lastly, the Estate argues the motion judge erred in finding that a determination of the question raised in the Notice of Motion may dispose of the action, shorten the trial, or result in a substantial saving of costs. [ 29 ] The Estate also challenges the judgment rendered in first instance on substantive grounds. According to the Estate, the contested determination of law is based upon an incorrect

interpretation and application of the Survival of Actions Act and the Fatal Accidents Act . That

interpretation would not be “consistent with a purposive, textual and contextual

interpretation” of the pertinent provisions, notably ss. 2(2) , 3 and 5(1) of the Survival of Actions Act . Moreover, that

interpretation would fail to take account of the French version of those provisions and would be disharmonious with s. 17 of the

Interpretation Act , R.S.N.B. 1973, c. I-13: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and

interpretation as best ensures the attainment of the object of the Act, regulation or provision. 17 Toute loi, tout règlement et toute disposition de ceux-ci sont réputés réparateurs et doivent faire l’objet de l’interprétation large, juste et libérale, la plus propre à assurer la réalisation de leurs objets. [ 30 ] In his reasons for decision in MacLean v. MacDonald , 2002 NSCA 30 , [2002] N.S.J. No. 76 (QL) , Cromwell J.A., as he then was, offers a response, which I endorse, to the Estate’s argument that s. 17 of the

Interpretation Act mandates a plaintiff-friendly

interpretation of the phrase “actual pecuniary loss”. Referring to the corresponding provision of Nova Scotia’s

Interpretation Act, Justice Cromwell states: “This rule, however, is not directed to giving the statute the most favourable

interpretation possible to permit recovery, but to giving an

interpretation that will ensure the attainment of the statute’s objects. In my view, this rule is fully complied with through the detailed contextual analysis which I am undertaking in this case” (para. 105). Furthermore, there is nothing in the French version of s. 5(1) that is of assistance to the Estate’s interpretative submission.

Nothing further need be said with respect to these two arguments. [ 31 ] Despite his determination that the Estate could not recover damages for future loss of earnings or loss of earning capacity, the motion judge dismissed the motion to strike the parts of the Statement of Claim and the Answer to the Defendant’s Demand for Particulars in which that claim was advanced. He did so for the following reasons:

In the event the Court answered the question in the negative, the defendant also relies on Rule 23.01 (1) (b), which, as noted earlier,“allows a party to apply for an order striking out a pleading” and which can only succeed “if the impugned pleading fails to disclose areasonable cause of action or defence” (Sewell v. ING Insurance Co. of Canada supra, at para. 6). The plaintiff objects to theapplicability of this provision and during argument counsel for the defendant did not push for this additional remedy. He appearedcontent to rely on any negative answer given by the Court under Rule 23.01(1)(a).

In all the circumstances, I am as well. I note thatClendening J. went no farther in MacLean Estate v. McKiel, supra. [para. 53] [32] Mr. Arseneau filed a Notice of Cross-Appeal in which he contended the motion judgecommitted reversible error in dismissing his motion to strike the parts of the Statement of Claim and Statement of Particulars claimingdamages for loss of future income or loss of earning capacity. In Mr. Arseneau’s submission, the judge should have allowed his motionto strike under Rule 23.01(1)(

b) once he determined the Estate was not entitled to recover those damages under the Survival of ActionsAct. At the hearing on appeal, Mr. Arseneau abandoned the cross-appeal. He did so after the panel indicated that, as a matter of law, thecontested parts of the Statement of Claim and the Answer to the Defendant’s Demand for Particulars were deemed struck as a result ofthe determination under Rule 23.01(1)(a). [33] That said, it is also contended in the Notice of Cross-Appeal that the determination made in firstinstance is sustainable on grounds other than those identified in the decision under appeal. Mr.

Arseneau argues that, if the motion judgeerred in failing to analyze and determine himself the question of law raised in the Notice of Motion, his disposition is neverthelesscorrect.

That would be the case because the claimed loss of future income or earning capacity: (1) is not an “actual pecuniary loss”; (2)constitutes a loss of expectation of life, for which damages are explicitly excluded by s. 5(1) of the Act; and (3) constitutes a “loss” or“gain” to the Estate which, pursuant to s. 6, may not be taken into account in calculating the damages. [34] While not rejecting them definitively, I am not attracted by the logic underlying the second andthird reasons put forward in the Notice of Cross-Appeal.

As I understand the law, damages for loss of expectation of life are not awardedto cover loss of income. Rather, they are non-pecuniary in purpose and are “part of a solace to make life more endurable for a seriouslyinjured plaintiff”: S.M. Waddams, The Law of Damages (Toronto: Canada Law Book, 2013) (loose-leaf updated 2012, release 22), ch. 12at 6 and Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996), at pp. 488-489.

As for theargument based on s. 6, it seems to miss the mark because the terms “gain” and “loss” have been narrowly interpreted, the former asexcluding “such payments to the estate as life insurance, guaranteed annuity payments, and retirement pension contributions” and thelatter as applying to such things as the cost of administration of the estate: The Law of Damages, ch. 12 at 11. That said, there is definitemerit in the proposition that post-death loss of future income or earning capacity is not an “actual pecuniary loss” within the meaning ofs. 5(1), and I propose to dispose of the appeal on that basis. III.

Analysis [35] I begin with a brief discussion of the procedure-related grounds of appeal that are not moot, andconclude with an elaboration of my reasons for rejecting the Estate’s substantive complaint. A. Procedural issues (

i) The suitability of Rule 23.01(1)(a) [36] Rule 23.01(1)(

a) provides that a defendant may, at any time before the action is set down fortrial, apply to the Court for the determination of any question of law raised by a pleading. Particulars form part of the pleading to whichthey relate: Patterson v. C.P.R., (AB CA), [1917] A.J. No. 75 (C.A.) (QL) and Turner v. Surrey, [1911] B.C.J. No. 10(C.A.) (QL). The plaintiffs state in the Answer to the Defendant’s Demand for Particulars: (1) the Estate is “the Plaintiff in that part ofthe action enabled by the Survival of Actions Act […]”; (2) the Estate claims damages that have resulted in actual pecuniary loss to it orMs.

Higgins; (3) those damages, which include “what Caroline J. Higgins would have earned during her lifetime”, stand to be assessed inaccordance with the methodology adopted in Duncan Estate v. Baddeley (the “available surplus” approach). Clearly, the plaintiffs’ ownpleadings raise the issue of the Estate’s legal entitlement to damages for post-death loss of earnings or earning capacity. Accordingly, themotion judge did not err in determining the question of law articulated in the Notice of Motion. Finally on this point, I unhesitatinglyagree with the motion judge that LeBlanc v.

Boisvert is distinguishable, and can do no better than reproduce his explanation: The determination of the legal question before me is, in my respectful opinion, distinguishable. Although the importance of the question

raised here does transcend the interests of the parties and does involve some difficult aspects of legislative

interpretation and, perhaps, can be seen by some to have a layer of complexity, it is not of the same timber as the question put up in Bosivert v. LeBlanc , supra. The impugned provisions of the Survival of Actions Act are not novel; the legal question raised is much narrower in ambit than in Bosivert v. LeBlanc ; is not fact dependant in the sense of being entirely hypothetical given the concession made for the purpose of this Motion; and like-questions as raised here have been the subject of extensive judicial

interpretation elsewhere. Moreover, a substantively identical question to what is before me was recently answered by a Justice of this Court in Estate of Adams et al. v. McKiel and Loyal Taxi 2012 NBQB 106 (hereinafter referred to as Adams Estate v. McKiel ) . Furthermore, given the extensive

interpretations of this and similar provisions of Survival of Actions legislation, and given the high quality of the legal arguments made before me, I [am] unable to discern how a trial or counsel’s preparation for a trial would or could better refine or hone the arguments. In other words, I am of the view that the trial judge would be in no better position to answer the legal question. In saying this I am aware, as the Chief Justice put it in Boisvert v. Leblanc at para. 19, of “Rule 23.01(1)(a)’s allergy to evidence”. I will address this concern shortly.

This aspect aside for the moment, I am of the opinion that the question framed can be fairly and properly addressed pre-trial. At this point in my analysis I find that pre-trial determination of the legal question arising from the pleadings is the most just and most expeditious manner to proceed. As counsel for the defendant argued: “The question of law is suitable for determination under Rule 23.01(1)(

a) because it arises on the face of the Statement of Claim and Statement of Particulars; does not require that the Court make findings of fact in order to decide it; and has been the subject of previous judicial determination”. Indeed, in that latter regard I note that on at least two occasions judicial determinations were made in advance of trial in circumstances such as these (See: Adams Estate v. McKiel , supra, at para. 6; MacLean v.

MacDonald 2002 NSCA 30 at para. 11 ). [paras. 24-26] (ii) Rule 23.02 and the admissibility of the affidavits filed in support of the motion [ 37 ] There is no merit to the Estate’s objection to the admissibility of the three affidavits mentioned above. That is so for the following reasons, each of which constitutes a complete answer, whether specific or general. [ 38 ] First, the O’Brien affidavit merely identifies the pleadings, as particularized.

As such, it is admissible, without leave of the Court, pursuant to Rule 23.02(b). [ 39 ] Second, the Estate did not object to the admission of any of the affidavits in the court below, except with respect to Mr. O’Brien’s statement of opinion regarding the usefulness of the sought-after determination. It is too late for a more comprehensive objection: Walsh v. Nicholls and CGU Insurance Company of Canada , 2004 NBCA 59 , 273 N.B.R. (2d) 203 , at para. 83 , and Jean v. Pêcheries Roger L.

Ltée, 2010 NBCA 10 , 354 N.B.R. (2d) 300 , at para. 62 . [ 40 ] Third, the motion judge could, in the exercise of his discretion, grant leave to admit the Bordeleau and Forestell affidavits for the entirely legitimate purpose of clarifying the state of the record before Clendening J. in Adams Estate v. McKiel . The discretionary nature of that ruling brings into play a standard of review that requires great deference on our part. That standard was defined in The Beaverbrook Canadian Foundation v.

The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161 : […] The impugned Order is quintessentially the product of an exercise of judicial discretion. Like any other discretionary judicial decision, it may be interfered with on appeal only if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (see British Columbia (Minister of Forests) v.

Okanogan Indian Band, [2003] 3 S.C.R. 371 , 2003 SCC 71 at para. 43 ) or if it is unreasonable, in the sense that nothing in the record can justify it (see The Honourable R.P. Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994) at pp. 36-37 and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council , [1977] A.C. 1014 (H.L.) Lord Diplock at p. 1064). [para. 4] [ 41 ] Finally, Rule 2.01 vests in the court the power to dispense with the application of a rule where the interests of justice require: Trifidus Inc. v.

Samgo Innovations Inc. et al. , 2011 NBCA 59 , 375 N.B.R. (2d) 141 and The Beaverbrook Art Gallery v. Beaverbrook Canadian Foundation , 2013 NBCA 17 , 403 N.B.R. (2d) 161 . That rule is appropriately applied to allow affidavit evidence, such as the Bordeleau and Forestell affidavits, that seek to place before the court a reliable, timely and contextually intelligible record of the statements made by the Minister of Justice in the Legislative Assembly by way of explanation for a Bill whose passage was under his or her responsibility.

A dispensation with Rule 23.02’s disallowance of evidence of this nature is warranted to secure the just, least expensive and most expeditious determination of the proceedings on the merits. The objective is to provide

affordable access to justice. (iii) The usefulness of the sought-after determination [42] The motion judge concluded there was a real and substantial possibility that the determinationsought in the Notice of Motion may dispose of the action, shorten the trial, or result in a substantial saving of costs. The Estate’scontention that the motion judge erred in so concluding is bereft of merit. I agree with the motion judge’s observations on point: I find that there is a real and substantial possibility that to answer the question raised might shorten the trial or result in a substantialsaving of costs.

I make that inferential finding from the Statement of Claim and from the Plaintiff’s Answer to the Defendant’s Demandfor Particulars. The claim by the Estate under the Survival of Actions Act is separate from the claim by the Executor of the Estate underthe Fatal Accidents Act. If the plaintiff Estate is successful in establishing that the term “actual pecuniary loss” found in Section 6 (1) ofthe Survival of Actions Act encompasses recovery for loss of future or prospective earnings or loss of earning capacity as a result of thedeath of Caroline J.

Higgins, the calculation of that head of damages would be intricate, if not complex, and, given Ms. Higgin’s age andoccupation at the time of her death, there is the potential for a significant monetary award. It would be fully expected that substantialevidence would be sought at discovery (both oral and documentary) and would be required at trial and much legal argument generated.As example, in the Plaintiff’s Answer to the Demand for Particulars it is stated: The Plaintiff, the Estate of Caroline J.

Higgins, will be relying on the “available surplus” approach in assessing the Plaintiff’s claimpursuant to the Survival of Actions Act which was set out and adopted by the Alberta Court of Appeal in Duncan Estate V. Baddeley(1997) (AB CA), 196 A.R. 161 (C.A.)). Whether or not that particular “available surplus approach” would be adopted by the trial judge (which in itself most probably would bean issue at trial) any approach would be expected to involve actuarial evidence and required predictions and projections of future eventsand discounting for the vagaries of life (See: Duncan Estate v.

Baddeley, supra at paras. 26 - 45). A fortiori, there is a real and substantialpossibility that the trial might be shortened or result in a substantial savings in costs should this Court answer the legal question and indoing so conclude that the plaintiff Estate cannot recover damages under the New Brunswick Survival of Actions Act for loss of future orprospective earnings or loss of earning capacity. [paras. 28-29] B. The substantive issue

(1) Legislative intent and legislative policy vs. judicial policy [43] At common law, an action in tort for personal injury ceased to be prosecutable with the death ofthe victim or the wrong-doer. As well, the common law did not recognize a third party’s cause of action for damages arising from thewrongful death of another. Thus, the surviving spouse or children could not sue for damages for the wrongful death of the otherspouse/parent: Baker v. Bolton and Others, [1808] EWHC KB J92. See, as well, the insightful

summary of the common law provided bythe Law Reform Commission of Saskatchewan in its May 1985 Report to the Minister of Justice with respect to its proposal for aSurvival of Actions Act. [44] Both of those common law rules have been modified by legislation in most, if not all, commonlaw provinces. At the time of the adoption of the Survival of Actions Act and the Fatal Accidents Act by the Legislature of NewBrunswick in 1969, it was universally accepted in Canada that survival of actions legislation precluded recovery of post-death loss ofincome or earning capacity: MacLean v.

MacDonald, at paras. 37-49, 58, 78, 86 and 88 and Estate of Julie Ann MacKay v. Smith, 2003PESCAD 27, [2003] P.E.I.J. No. 100 (QL), Mitchell, C.J.P.E.I. for the Court, at para. 13. That view was accepted in New Brunswicksoon after the adoption of the Survival of Actions Act: St-Onge v. Bel Air Rental Services Ltd. (1972), (NB KB), 7N.B.R. (2d) 543, [1972] N.B.J. No. 215 (Q.B.) (QL). [45] A different view gained traction in the Courts of England (Gammell v. Wilson, [1981] 1 All E.R.578 (H.L.)), Australia (Fitch v. Hyde-Cates, [1982] H.C.A. 11) and Alberta (Galand Estate v. Stewart, 1992 ABCA 334, [1992] A.J.

No.1209 (QL) and Duncan Estate v. Baddeley). However, it bears noting that in each of those jurisdictions, the legislature or parliament, asthe case may be, stepped in to legislatively exclude claims for loss of income or earning capacity in the lost years. More pertinently forour interpretative purposes, the English and Australian statutes considered in Gammell v. Wilson and Fitch v. Hyde-Cates, respectively,are materially different from our Survival of Actions Act. Most significantly, neither of those statutes limited recovery to pecuniary loss

that is “actual”. [ 46 ] The Estate submits the decision in Duncan Estate v. Baddlely should be followed because the wording of the recovery-enabling provision of our Survival of Actions Act is similar to the Alberta statute under consideration in that case, ss. 2 and 5 of which read as follows: 2. A cause of action vested in a person who dies after January 1, 1979 survives for the benefit of his estate. 5. If a cause of action survives under

section 2 , only those damages that resulted in actual financial loss to the deceased or his estate are recoverable and, without restricting the generality of the foregoing, punitive or exemplary damages or damages for loss of expectation of life, pain and suffering, physical disfigurement or loss of amenities are not recoverable. [ 47 ] With respect, there is at least one notable difference between s. 5 of the Alberta statute and s. 5 of our Survival of Actions Act .

Unlike the Alberta provision, s. 5 of our statute, specifically paragraph (2), permits, in explicit terms, the recovery of punitive or exemplary damages “where the person in whom the cause of action is vested dies on or after January 1, 1993”. The exclusion of those damages under the Alberta statute appears to have influenced to some extent the reasoning of the majority in Duncan Estate v. Baddeley. That point emerges from the following observations of Justice Kerans, with whom Côt é , J.A. agreed: In my view, the broader view of what is “actual” meets all three tests. First, it is plausible.

Some bases for damage awards turn on matters that are very real but have no actual “financial” or pecuniary aspect. The most obvious example is damages for pain and suffering. The pain and suffering are real enough, but the idea that these losses create a loss calculable in money terms as a financial or pecuniary loss is fictive. I acknowledge that a distinction may be made respecting those heads of damages that are very personal to the victim, especially an award for pain and suffering.

That award does not seek to replace lost property but rather to offer some sense of consolation and retributive justice to the victim. There is some logic in the statutory denial of an award in a case where the victim cannot enjoy that consolation or sense of justice. This explains the exception under review, but not its extension to the loss of property. (I put aside as not yet considered the anomaly of an award for pain and suffering to a victim who is alive but unconscious.) The same may be said of punitive or exemplary damages.

In sum, the exception is all about awards for non-pecuniary loss. […] In my view, the office of the

section [s. 5 of the Alberta statute] is to rid the surviving action of any claim that is notional or fictive (e.g. punitive and exemplary damages) or that is for non-pecuniary loss . […] [paras. 9, 11] [Emphasis added.] [ 48 ] Be that as it may, it is clear the majority in Duncan Estate v. Baddeley was allergic to a policy choice by which the loss of physical property was compensable, and the loss of ability to earn income was not: In any event, I want no part of a definition of compensation that puts value on physical but not intellectual capital.

Those who argue that I here go beyond compensation would insist I am sure that survivorship law undeniably permits the estate to claim loss to physical property of the deceased. Thus, they are driven to say that, if two people are killed by the same tortfeasor, the estate of the wealthy one who never worked in his life but who lost his Cartier watch as well as his life would recover the value of the watch (so the heirs could say that ill wind blew some good) because of course, the tortfeasor destroyed not just the life but also the property.

But the estate of the victim, who is a “working man”, and who must rely on his ability to earn, would receive nothing on the ground that to treat the loss of his ability to earn as the loss of property separable from his death would be to go beyond compensation of him and create a “windfall”. In my view, to label the claim of the first estate as just compensation and of the second estate as a non-compensatory “windfall” is unwarranted, and reflects certain social attitudes that are not part of the law.

In sum, I say that to recognize the capital of the propertied person but not that of the un-propertied person is to make an invidious class distinction, and I want no part of it. [para. 16] [ 49 ] As stated in my introductory remarks, judges are duty-bound to give effect to constitutionally valid legislation and no judge has the power to disregard legislation solely because it reflects a policy that he or she finds objectionable. That point is most ably made by Professor Sullivan in Statutory

Interpretation (Concord, ON: Irwin Law, 1997):

The doctrine of parliamentary sovereignty has strongly influenced the attitude of judges towards legislation and the way they explain their role. Because the legislature is sovereign, courts are bound to give effect to its instructions when they are expressed in valid legislation. This duty arises regardless of the court’s own view of the legislation. In principle, Parliament’s will must be heeded no matter how foolish or unfair its instructions may be.

There are many cases in which judges give effect to the apparent meaning of a provision, despite their own feelings of disapproval, because they feel bound by the legislative will. [pp. 34-35] [ 50 ] In Report No. 76 entitled “Should a Claim for the Loss of a Chance of Future Earnings Survive Death?”, the Alberta Law Reform Institute highlights the conflict between, on the one hand, the majority opinion in Duncan Estate v. Baddeley and, on the other, the policy underlying s. 5 of the Alberta Survival of Actions Act and the Alberta Legislature’s intention:

Section 2 of the Survival of Actions Act provides that “a cause of action vested in a person survives for the benefit of his estate.”

Section 5, however, provides that “only those damages that resulted in actual financial loss to the deceased or his estate are recoverable.” When the Survival of Actions Act was enacted in 1978, it was thought that the loss of a chance of future earnings is not an “actual financial loss.” It was, therefore, thought that s. 5 would prevent a deceased injured person’s estate from claiming damages for the loss of future earnings, that is, it would prevent such a claim for damages from surviving the death of the injured person. However, in Duncan Estate v.

Baddeley , the Court of Appeal of Alberta held that a loss of earning capacity, or a loss of a chance of future earnings, is an “actual financial loss” under s. 5 and that the claim for damages therefore survives and can be brought by the deceased injured person’s estate. […] […] Duncan v. Baddeley reversed the policy on which s. 5 of the Survival of Actions Act was based.

That reversal suggested that the subject should be reconsidered to determine whether it is the original policy or the policy of Duncan and Baddeley which should be the policy of the law. […] […] As we have said above, when the Survival of Actions Act was enacted in 1978, it was thought that the effect of s. 5 was that a claim for damages for the loss of a chance of future earnings was not an “actual financial loss” as the term is used in s. 5 and therefore would not survive the death of the person who suffers the loss.

It was the intention of the Conference of Commissioners on Uniformity of Law in Canada (now the Uniform Law Conference of Canada), which drafted the Uniform Act on which the Survival of Actions Act was based, that the claim would not survive. It was also the intention of this Institute (then the Institute of Law Research and Reform), which , in our 1977 Report 24, Survival of Actions and Fatal Accidents Act Amendment , recommended the adoption of most of the Uniform Act , that the claim would not survive.

The Legislature accepted ALRI’s recommendation and enacted the Survival of Actions Act recommended by ALRI with some changes which are not relevant to the subject of this report. [ 51 ] Report No. 76 goes on to formulate compelling arguments against the policy underlying the majority view in Duncan Estate v. Baddeley : Conclusion and Summation on Survival of the Claim for the Loss of a Chance of Future Earnings We have now gone through the woods tree by tree. It is time to stand back and look at the woods as a whole.

We think that what should be heritable and descend to a deceased person’s estate are claims for losses which the Survival of Actions Act attempted to describe by using the words “actual financial loss”, which we will also use. What we mean by “actual financial loss” is a loss which is a real financial loss experienced at the time of the loss, as opposed to a potential loss, financial or otherwise. A chance of future earnings is a potential source of financial gain in the sense in which we use the words, not an actual financial component of a person’s property or wealth.

Its loss accordingly has a potential for adversely affecting the actual financial position of the injured person in the future, but the loss does not affect the injured person’s actual financial position at the time of the loss. The same would be true of the loss of a chance of a future inheritance or a chance of winning a lottery which will be held in the future.

An actual financial loss, as we are using the term, involves a loss of wealth or property. An actual financial loss is a loss of something which is heritable and for which compensation can and should be made. We think that it is appropriate that a claim for damages for a heritable and compensable loss should descend to the injured person’s estate and to those who are entitled to the benefit of the estate. But where the injured person has died the situation with respect to a claim for damages for the loss of a chance of future earnings is different. The injured person cannot be compensated because they are dead.

The injured person’s heritable property is the same after the loss of the chance as it was before the loss of the chance so that the loss of the chance of future earnings has not reduced the estate. We do not think that the policy of the law should require a wrongdoer to pay money where there is no loss of heritable property and where there is no one who can be compensated for the loss or restored to their position by the payment of damages. The analysis can be applied in a number of steps.

First, a person who would have earned money during a certain time period which has expired, but who was unable to earn that money during that time period because of an injury has suffered an actual financial loss. Earnings would have come to them but for the injury, and did not come to them, so that they have had less income for the period than they would have had but for the injury. Quantifying the loss requires an assessment of a hypothetical likelihood, that is, that the injured person would have earned the money during the period but for the injury, but this can be done to quite a high degree of probability.

The assessment of such damages is done at the time of trial for the time period that has elapsed between the injury and the trial. This step is unexceptionable as it deals with actual experienced financial loss. The next step is to quantify an injured person’s loss of earnings in advance and to make a lump-sum award. The courts are obliged to take this step because, as a matter of law or administration, the law does not require or permit the injured person to come in once in every year or other time period to demonstrate that they have suffered a loss of earnings during that time period.

In most cases advance quantification of the loss to any standard of accuracy is impossible because of the imponderables that are necessarily imported into the assessment process. However, given that damages must be assessed once and for all because periodic quantification is not permitted, the courts have to make the assessment in order to compensate the injured person for the periodic losses that the injured person may reasonably be expected to suffer, with deductions for contingencies.

The deficiencies of the crystal-ball assessment process have to be accepted because that is the only way that compensation can be made for losses that the injured person can reasonably be expected to experience.

The next step that the law takes is more doubtful, that is, the assessment of damages for the injured person’s loss of earnings during the years during which the injured person would have been expected to live but for the injury and is not now expected to live because of the injury, that is the years which are referred to as “the lost years.” The crystal-ball assessment is now more uncertain than ever, as it has to base itself on two different expected lifetimes, the one the injured person would have had but for the injury and the one the injured person will have because of the injury.

But more than that, the damages are for a loss which, if the assessment of the injured person’s actual life expectancy is correct, the injured person will not experience as an actual financial loss because they will be dead. This step can be justified as providing additional compensation to a person who has clearly suffered injury for which they should be compensated. The final step, and the one under discussion in this report, is the payment to the injured person’s estate of damages for the injured person’s loss of a chance of future earnings. We have tried to show a number of things.

First, a money payment to the injured person’s estate cannot compensate the injured person, to whom no compensation can be made, and they do not compensate the injured person’s estate, because compensation in the context of damages is necessarily compensation for a loss or injury and the estate has not suffered a loss or injury. Thus, the damages do not go for compensation to any person, and the Fatal Accidents Act is there to provide direct compensation to those who should be compensated.

Next, the doctrine of heritability does not require that the injured person’s claim for damages for the loss of a chance of future earnings descend to the injured person’s estate, because the chance was something peculiarly personal to the injured person which did not involve legal rights or property recognized by law, and its loss was not the loss of an asset that affected the injured person’s actual financial position. We have also tried to show that justice cannot be done to a deceased person by an award of damages which must necessarily be enjoyed by others.

The reasons for allowing the claim to survive appear to us to be weak at best, and insufficient to justify awarding crystal-ball damages for a loss which will not actually be experienced by the injured person or by the injured person’s estate and those who claim through it. [ 52 ] Interestingly, the general approach in the United States, federally and in most states, is to exclude recovery of damages for post-death loss of earnings from survival of actions statutes: Dan B. Dobbs, Law of Remedies: Damages, Equity, Restitution , 2nd ed. (St. Paul, MN: West Publishing Co, 1993), at 673. In Miles v.

Apex Marine Corp. , 498 U.S. 19 (1990), the U.S. Supreme Court grappled with the question of whether an estate could recover damages for post-death lost earnings under maritime law. The Court provided the following insights into the recoverability of such damages under survival of actions statutes in the United States:

Recovery of lost future income in a survival suit will, in many instances, be duplicative of recovery by dependants for loss of support in a wrongful death action; the support dependants lose as a result of a seaman’s death would have come from the seaman’s future earnings. Perhaps for this reason, there is little legislative support for such recovery in survival. In only a few States can an estate recover in a survival action for income decedent would have received but for death. At the federal level, DOHSA contains no survival provision.

The Jones Act incorporates FELA’s survival provision, but, as in most States, recovery is limited to losses suffered during the decedent’s lifetime. See 45 U.S.C. § 59; Van Beeck v. Sabine Towing Co., 300 U.S. 342, 347, 57 S.Ct. 452, 454-455, 81 L.Ed. 685 (1937); St. Louis, I.M. & S.R. Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 706, 59 L.Ed. 1160 (1915). This state and federal legislation hardly constitutes the kind of “wholesale” and “unanimous” policy judgment that prompted the Court to create a new cause of action in Moragne. See Moragne, supra, 398 U.S., at 388, 389, 90 S.Ct., at 1781, 1782.

To the contrary, the considered judgment of a large majority of American legislatures is that lost future income is not recoverable in a survival action . Were we to recognize a right to such recovery under maritime law, we would be adopting a distinctly minority view. [paras.37-38] [Emphasis added.] In Miles , recovery of damages for income the deceased could have earned but for death was denied, such a remedy being “disfavoured by a clear majority of the States” ( para. 41). The U.S. Supreme Court recently re-affirmed the Miles reasoning in Atlantic Sounding Co., Inc. et al. v.

Townsend, 557 U.S. 404 (2009). [ 53 ] I complete this brief foray into American jurisprudence with the decision in Flowers, Administratrix v. Marshall, Administrator , 208 Kan. 900 (1972). It bears mention because of its discussion of the problem of duplicative recovery, one that has prompted most American courts to interpret ambiguous statutory provisions in survival of actions statutes as limiting the estate’s recovery to damages for income earned prior to death.

Referring to the interaction between survival of actions statutes and wrongful death statutes, the Court stated: A doubling up would be involved if recovery based on full loss of future earning capacity were to be allowed in both a survival and a wrongful death action, and this would be true even though the ultimate beneficiaries in the two actions might not always be the same.

Such duplication would be punitive to the wrongdoer and we cannot believe the legislature intended such a result, keeping in mind the fact that the survival statute and the wrongful death statute were each enacted to supply a remedy which did not exist at common law, and where, as here, each cause of action is dependent on the same tortious act.

Historically the majority view in other jurisdictions has been that recovery for loss of earnings or earning capacity beyond the time of death was impermissible in a survival action although it must be recognized statutory provisions sometimes are distinctive in the various jurisdictions so as to account for the results reached.

The general rule is stated in McCormick on Damages, § 94, p. 337, thus: “In states where actions may be brought by the personal representative of the deceased under the Survival Act for the injury, and under the Death Act for the death, the damages in the survival action are limited to compensation for injuries actually accruing before death, that is, for the pain and suffering of the injured man and for his loss of earnings and his expenses of care and treatment.” [Emphasis added.] [ 54 ] If damages for post-death loss of income or earning capacity are allowed pursuant to the Survival of Actions Act in addition to damages based upon dependency under the Fatal Accidents Act , the result will often be a recovery that exceeds full compensation.

In Duncan Estate v. Baddeley , the majority held damages for post-death loss of income or earning capacity should be calculated on the basis of the “available surplus” approach enunciated in Harris v. Empress Motors Ltd., [ 1983] 3 All ER 561 , a judicial construct required to circumvent the duplicative recovery problem created by the Court’s expansive

interpretation of the phrase “actual pecuniary loss”. To be clear, there is no mention whatsoever of the “available surplus” approach or anything of the kind in either the Survival of Actions Act or the Fatal Accidents Act of New Brunswick . [ 55 ] In MacLean v. MacDonald , Justice Cromwell acknowledges that “problems of overlap and potential double recovery might not be insuperable in practice”: (para. 94).

However, that observation is accompanied by the following views, with which I fully agree: […] the rights under the Survival of Actions Act were said to be in addition to and not in derogation of any rights under the Fatal Injuries Act. This makes it unlikely that the Legislature foresaw any significant overlap between the remedies available under the two acts. Of

course, the calculation of both the dependancy amount, which may be recovered by dependants under the Fatal Injuries Act, and the deceased’s loss of prospective earnings are based on the income the deceased would have earned had he or she lived. It follows that if both claims may be asserted, there is the potential of the defendant being required to pay damages twice over for essentially the same loss. These problems of overlap and potential double recovery might not be insuperable in practice.

It is hard to think, however, that the Legislature would have enacted a provision which created such overlap and potential for double recovery without addressing, in any manner, the way in which these problems should be resolved. A more plausible inference is that the Legislature did not foresee that the loss of prospective earnings might be recovered in a survival action and, therefore, did not think that any serious problems of overlap or double recovery were likely to arise . [paras. 93-94] [Emphasis added.] [ 56 ] Legislative intent remains and must always remain a cornerstone of judicial statutory

interpretation. The Synoptic Reports of the Proceedings of the Second Session of the Forty-Sixth Legislative Assembly of the Province of New Brunswick (the “Synoptic Reports”) show that the Minister of Justice at the time, the Honourable Bernard Jean, later a Justice of the Court of Queen’s Bench, introduced Bill 63 ( Survival of Actions Act ) and Bill 64 ( Fatal Accidents Act ) on the same date, namely March 27, 1969. On first reading, he described the purpose of each Bill as “a uniform Act”, which each province was eventually expected to adopt.

During second reading of Bills 63 and 64, the Minister of Justice described the proposed Survival of Actions Act and Fatal Accidents Act as “model Acts” and “uniform legislation” drafted and submitted by the Conference of Commissioners for Uniform Legislation in Canada. Those explanatory statements by the Minister of Justice bring into sharp focus related proceedings of the Conference of Commissioners on Uniformity of Legislation in Canada. [ 57 ] At the 1961 meeting of the Conference, the Alberta Commissioners submitted a Report containing recommendations for a model Survival of Actions Act .

Under “Restrictions”, they stated: At least one of the provinces excludes damages for death and compensation for expected earnings subsequent to death. We think this exclusion is not necessary because these items are not included in the first place; they are not surviving rights . [Emphasis added.] The recommendations of the Alberta Commissioners led to the drafting of the model Survival of Actions Act that was considered at the Conference’s next annual meeting in 1962, which was held in Saint John, New Brunswick. Section 6(1)(

f) of this draft legislation provided that no damages were recoverable for “loss of expectancy of earnings subsequent to death”. In a follow-up note, rejection of that exclusion was recommended because damages for loss of expectancy of earnings subsequent to death were “not recoverable anyway”. That recommendation ultimately carried the day.

Thus, at the 1963 annual meeting, the Conference adopted a model Survival of Actions Act, the salient part of which read as follows: Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include punitive or exemplary damages or damages for loss of expectation of life, pain and suffering or physical disfigurement. [Emphasis added.] [ 58 ] Thus, the record of input into the process that culminated with the introduction of the 1969 Survival of Actions Act in the New Brunswick Legislature reveals the drafters of the uniform Act considered the phrase “actual pecuniary loss” did not encompass “loss of expectancy of earnings subsequent to death”.

There is compelling and un-contradicted evidence the Legislature passed into law the uniform Act with that understanding of its effect. [ 59 ] W here the intent of the Legislature is ascertainable, as is the case here, and the legislation is constitutionally valid, the issue should be simply whether the words employed are competent to carry out that intent. In Adams Estate v. McKiel, Clendening J. expressed the view that the interpretative focus needs to be on the meaning and effect of the word “actual”. I agree.

(2) The wording selected by the Legislature in s. 5(1): “actual” pecuniary loss [ 60 ] The Oxford English Dictionary (Oxford, UK: Clarendon Press, 1933) defines “actual” as

“existing in […] fact […], real; -opposed to potential, possible, […] in […] existence at the time; present”. In La Common Law de A à Zby Jacques Vanderlinden, Gérard Snow and Donald Poirier (Cowansville: Éditions Yvon Blais, 2010), an “actual” loss is defined as theopposite of a “future” loss. In a decision that pre-dated the adoption of our Survival of Actions Act in 1969, Anthony v. Fleming, [1962]N.J. No. 4 (S.C.) (QL), Furlong C.J. interpreted the term “actual” in the phrase “actual pecuniary loss” as the opposite of “prospective”(para. 10).

That view led him to reject a claim for loss of expectation of life even though the Newfoundland survival of actions statute didnot explicitly exclude damages for any such loss. [61] To my mind, the word “actual” in s. 5(1) means “existing in fact”. It is, therefore, apposite toexpress the Legislature’s intention, which was, inter alia, to exclude recovery for “loss of expectancy of earnings subsequent to death”. On a plain reading of s. 5(1), the “actual”, i.e. “existing in fact”, standard stands to be applied in respect of all pecuniary lossesattributable to the wrong giving rise to the cause of action.

Thus, the door is not closed to recovery of damages for accident-linkedpecuniary losses actually sustained by the estate between death and trial. Moreover, I am not comfortable with the view that an “actual”loss is the opposite of a “future” loss. If that were so, damages for loss of income in the period between death and trial would berecoverable on the theory that they are not future losses as of the time of trial. In my respectful judgment, “actual” is more accuratelyviewed as the opposite of “possible” or “contingent”: James Estate v. Rentz, 1986 ABCA 95 , [1986] A.J.

No. 323 (C.A.) (QL),per Stevenson J.A., as he then was. I repeat: the Legislature intended to exclude recovery for loss of expectancy of earnings subsequentto death. [62] When a judge assesses damages for loss of the capital asset formed by a living claimant’searning capacity, he or she is indeed considering a loss that “exists in fact”. The claimant has actually suffered, and will continue toactually suffer from the effects of the loss of that asset. However, where death has occurred, there is no actual loss to the deceased or theestate.

The record of proceedings before the Conference of Commissioners on Uniformity of Legislation in Canada shows theCommissioners viewed all causes of action existing prior to death as an “asset”, the loss of which was compensable in favour of theestate. However, they took a different view of the “loss of expectancy of earnings subsequent to death”. More generally, I agree with thefollowing observations in Report No. 76 of the Alberta Law Reform Institute: But where the injured person has died the situation with respect to a claim for damages for the loss of a chance of future earnings isdifferent.

The injured person cannot be compensated because they are dead. The injured person’s heritable property is the same after the loss of the chance as it was before theloss of the chance so that the loss of the chance of future earnings has not reduced the estate. We do not think that the policy of the lawshould require a wrongdoer to pay money where there is no loss of heritable property and where there is no one who can be compensatedfor the loss or restored to their position by the payment of damages. [63] Moreover, if this Court were to accede to the Estate’s argument, the word “actual” would beredundant.

It would serve no purpose whatsoever. In that regard, it bears underscoring that the Legislature did not employ the word“actual” in s. 3(2) of the Fatal Accidents Act by which damages may be awarded for the “pecuniary loss” sustained post-death byspecified dependants. The rule against redundancy posits that each word in a provision is there for a reason, and therefore should begiven meaning: “[t]he legislature chooses its words carefully: it does not speak gratuitously”: Pierre-André Côté, The

Interpretation ofLegislation in Canada, 4th ed. (Toronto, ON: Thomson Reuters Canada Ltd., 2011), at 295. In Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, the Court upheld a Federal Court of Appeal decisionregarding the correct

interpretation of a provision in the Canadian Human Rights Act, R.S.C. 1985, c. H-6: The

interpretation adopted by the Tribunal makes the repetition of the term “expenses” redundant and fails to explain why the term islinked to the particular types of compensation described in each of those paragraphs. This

interpretation therefore violates the legislativepresumption against tautology. As Professor Sullivan notes, at p. 210 of her text, “It is presumed that the legislature avoids superfluousor meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and tohave a specific role to play in advancing the legislative purpose.” As former Chief Justice Lamer put it in R. v. Proulx, 2000 SCC 5,[2000] 1 S.C.R. 61, at para. 28, “It is a well accepted principle of statutory

interpretation that no legislative provision should beinterpreted so as to render it mere surplusage.” See also Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831, at p. 838. [para. 38]

(3) A brief overview of the jurisprudence in the Atlantic Provinces [64] Most, if not all, of the arguments put forward by the Estate are discussed and rejected in JusticeCromwell’s thorough reasons for decision in MacLean v. MacDonald. Admittedly, the Nova Scotia survival of actions statute isdifferently worded: unlike our statute, it does not allow recovery of damages that have resulted in actual pecuniary loss to the deceased,limiting that recovery to actual pecuniary loss to the estate. To my mind, that is a distinction without a difference.

The reference to actualpecuniary loss “to the deceased” in s. 5 of our statute is designed to counter any argument to the effect that a loss sustained before deathis not a loss “to the estate” and, as a result, is irrecoverable by the estate.

[65] At any rate, and as indicated, the key word is “actual” and some of Justice Cromwell’s reasonsfor rejecting the approach adopted in Duncan Estate v. Baddeley have application, insofar as they relate to the meaning and effect of thatword, to a provision such as s. 5 of our Survival of Actions Act: The appellants submit that the word “actual” may be used in the sense of “real” and that a loss may be real even though it is prospective:see Duncan v. Baddeley (1997), (AB CA), 145 D.L.R. (4th) 708 (Alta. C.A.).

Kerans, J.A. opined in that case thatthe exclusion of losses other than those which are ‘an actual financial loss’ is meant “... to rid the surviving action of any claim that isnotional or fictive (e.g. punitive and exemplary damages) or that is for non-pecuniary loss.” (at 712). However, in applying this reasoningto Nova Scotia’s legislation, two difficulties arise. First, that

interpretation makes the phrase “actual pecuniary loss to the estate” superfluous. Punitive damages and damages for pain andsuffering and loss of enjoyment of life are expressly excluded by specific language in the Nova Scotia legislation: see ss. 4(a), (b), (c). Itfollows that if the phrase ‘actual pecuniary loss to the estate’ is meant only to exclude exemplary and non-pecuniary damages, it addsnothing to the specific exclusions of these matters. Second, this

interpretation, in the context of the Nova Scotia Act, makes the word “actual” redundant. If all that was intended was toexclude non-pecuniary losses, why add the word ‘actual’ to modify the word ‘pecuniary’? A pecuniary loss is, by definition, not a non-pecuniary loss, so limitation of recovery to pecuniary loss would have excluded recovery for non-pecuniary losses. With all due respect, it seems to me to be a poor definition of a phrase that renders it redundant and an even poorer definition of a wordthat renders it meaningless. Yet these are the consequences if the reasoning of Duncan v. Baddeley is applied to the wording of the NovaScotia survival statute. I think a more plausible

interpretation results from paying attention to the legal parlance surrounding claims for lost earning capacity.Such claims, while relating to “real” losses, have always been treated as an element of the general damages award because they are notcapable of precise calculation. Such claims have been recognized as relating to the loss of potential or of prospective earnings. The use ofthe word ‘actual’ to describe such losses while perhaps not completely implau

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