2011 NBCA 13, 2011 NBCA 13

COURT OF APPEAL OF NEW BRUNSWICK 33-10-CA PELLETIER PLUMBING & HEATING LTD.,CARMEL PELLETIER, OLIVIA CYR andMARCEL CYR APPELLANTS PELLETIER PLUMBING & HEATING LTD.,CARMEL PELLETIER, OLIVIA CYR et MARCELCYR APPELANTS - and - - et - LINDA CYR RESPONDENT LINDA CYR INTIMÉE Pelletier Plumbing & Heating Ltd. et al. v. Cyr, 2011NBCA 13 Pelletier Plumbing & Heating Ltd. et autres c.

Cyr,2011 NBCA 13 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Quigg Appeal from a decision of the Court of Queen’sBench: March 1, 2010 Appel d’une décision de la Cour du Banc de la Reine: Le 1er mars 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBBR 111 , 2010 NBQB 111 Décision frappée d’appel : 2010 NBBR 111 Preliminary or incidental proceedings: [2010] N.B.J.

No. 162 (QL) Procédures préliminaires ou accessoires : [2010] A.N.-B. no 162 (QL) Appeal heard: October 14, 2010 Appel entendu : Le 14 octobre 2010 Judgment rendered: February 10, 2011 Jugement rendu : Le 10 février 2011

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 Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellants Pelletier Plumbing & Heating Ltd. and Carmel Pelletier: Louis-Martin Boudreault For the appellants Marcel Cyr and Olivia Cyr: No one appeared For the respondent: Marylène Pilote and Michèle Morin Avocats à l’audience : Pour les appelants Pelletier Plumbing & Heating Ltd. et Carmel Pelletier : Louis-Martin Boudreault Pour les appelants Marcel Cyr et Olivia Cyr : personne n’a comparu Pour l’intimée : Marylène Pilote et Michèle Morin THE COURT The appeal is dismissed with costs.

LA COUR L’appel est rejeté avec dépens. English version of the decision of the Court rendered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] Pelletier Plumbing & Heating Ltd. and Carmel Pelletier (“the Pelletiers”) appeal against an order under s. 265.6 of the Insurance Act , R.S.N.B. 1973, c. I-12, which requires them to make, in the context of the respondent’s action in tort, an advance payment of special damages for her loss of income.

By virtue of s. 265.6(2), such an order may be made if, and only if, the judge is satisfied the plaintiff will prove at trial the defendant is liable for the special damages at issue. That condition precedent is at the heart of the dispute in this proceeding. [ 2 ] The Pelletiers argue the order under appeal should be set aside because the respondent’s insurer will likely be directed to provide compensation for the full amount of her loss of income at the trial of a related action (to recover

Section B benefits). According to the Pelletiers, it follows they will obtain the benefit of a release under s. 263(2) and, consequently, their liability with respect to special

damages for loss of income will not be established at the trial of the action against them. [ 3 ] In the alternative, the Pelletiers submit the motion judge erred in calculating the amount of the advance payment without taking the respondent’s resources into consideration. They ask that the advance payment be reduced to reflect those resources. [ 4 ] I would dismiss the appeal for the following reasons. II. The Statutory, Factual and Procedural Context [ 5 ] Section 263(2) may operate to release the defendant in a tort action with respect to

Section B insurance benefits even if they have not been paid: it is sufficient if the claimant is entitled to the benefits and they are “available” to him or her. Section 263(2) reads as follows: 263(2) Where a claimant is entitled to the benefit of insurance referred to in

section 256 or 257 [Section B] this, to the extent of payments made or available to the claimant thereunder, constitutes a release by the claimant of any claim against the person liable to the claimant or the insurer of the person liable to the claimant. 263(2) Le fait qu’un demandeur ait droit à l’indemnité de l’assurance mentionnée à l’article 256 ou 257 [le

chapitre B] constitue, dans la mesure où les paiements sont effectués ou disponibles au demandeur, une quittance du demandeur de toute demande contre la personne responsable à l’égard du demandeur ou contre l’assureur de la personne responsable à l’égard du demandeur. [ 6 ] Upon the plaintiff’s application, s. 265.6 empowers the Court of Queen’s Bench to order the defendant to make an advance payment of special damages. As indicated in my introductory remarks, that relief is not available unless the judge is satisfied the defendant’s liability for the damages at issue will be established at trial .

Furthermore, the judge has a wide discretionary power in calculating the amount of an advance payment, s. 265.6(4) opening the door to the consideration of any circumstances he or she considers relevant. A related provision, s. 265.6(4)( e ), provides those circumstances may include the plaintiff’s resources.

Section 265.6 , in its entirety, reads as follows:

265.6(1) At any time after an action for damages arising out of an accident is commenced, the plaintiff may apply to a judge of The Court of Queen’s Bench of New Brunswick for an order requiring the defendant to make an advance payment of special damages. 265.6(2) The judge may make an order under subsection (1) on any terms he or she thinks appropriate, if the judge is satisfied that the plaintiff will prove that the defendant is liable for those damages. 265.6(3) The judge may order that payment under subsection (1) be made by lump sum, by installment or by a combination of both. 265.6(4) In calculating the amount of an advance payment, the judge may take into account any circumstances he or she considers relevant including (

a) the amount of special damages already incurred or likely to be incurred before judgment by the plaintiff, (

b) the amount, if any, counterclaimed by the defendant, (

c) the extent, if any, to which the plaintiff may be found to be contributorily negligent, (

d) any failure by the plaintiff to mitigate the amount of special damages, and (

e) the needs and resources of the plaintiff and the means of the defendant. 265.6(5) This

section applies only to accidents occurring on or after the commencement of this section. 265.6(1) Dès qu’une action en dommages-intérêts résultant d’un accident est engagée, le plaignant peut demander à un juge de la Cour du Banc de la Reine du Nouveau-Brunswick une ordonnance obligeant le défendeur à verser un paiement anticipé de dommages-intérêts spéciaux. 265.6(2) Le juge peut rendre une ordonnance en vertu du paragraphe (1) selon les modalités qu’il estime à-propos, s’il est convaincu que le plaignant prouvera que le défendeur est responsable de ces dommages-intérêts. 265.6(3) Le juge peut ordonner que le paiement en vertu du paragraphe (1) soit fait en une somme forfaitaire, par versements échelonnés ou par une combinaison des deux. 265.6(4) Dans le calcul du montant d’un paiement anticipé, le juge peut tenir compte de toutes circonstances qu’il estime pertinentes, y compris

a) le montant des dommages-intérêts spéciaux que le plaignant a encourus ou doit vraisemblablement encourir avant le jugement,

b) le montant, le cas échéant, de toute demande reconventionnelle réclamée par le défendeur,

c) la mesure, le cas échéant, dans laquelle le plaignant peut être reconnu coupable de négligence contributive,

d) tout défaut du plaignant pour réduire le montant des dommages-intérêts spéciaux, et

e) les besoins et les ressources du plaignant et les moyens du défendeur. 265.6(5) Le présent

article ne s’applique qu’aux accidents survenus à la date de son entrée en vigueur ou après cette date.

[ 7 ] In the underlying action, the respondent, now 48 years old, claims against the Pelletiers, and the two other appellants named in the style of cause, damages for the bodily injuries she sustained in a November 14, 2000 traffic accident. The accident occurred when the vehicle operated by Carmel Pelletier collided with the vehicle driven by the respondent’s husband, Marcel Cyr, and in which she was a passenger. [ 8 ] Both vehicles were insured by Aviva Insurance Company of Canada. Aviva is therefore the respondent’s insurer under

Section B of the policy on the vehicle in which she was a passenger, in addition to being the Pelletiers’ insurer under

Section A (civil liability) of the policy on their vehicle. One might be tempted to distill from this double liability a suspicion that the opposition to the motion in first instance as well as the appeal were pursued in bad faith. On that point, it bears recalling that the Pelletiers’ personal liability is directly at stake and that it is in their best interest to press for judicial recognition of the respondent’s entitlement to

Section B benefits. [ 9 ] Pelletier Plumbing & Heating Ltd. and Olivia Cyr are parties to the underlying action as owners of the vehicles involved in the accident. Marcel and Olivia Cyr did not file a Statement of Defence and abstained from any involvement in the hearing in first instance, in the initiation of the appeal and in the hearing on appeal. [ 10 ] The Pelletiers acknowledge their civil liability for the accident for the purposes of the present proceeding only.

They further concede, subject to this same condition, that the respondent is “totally” disabled and that, as a result, she is prevented from engaging in any gainful employment. [ 11 ] At the time of the accident, the respondent was an assistant cook at a school. She worked full-time during the school year and collected employment insurance benefits during the summer holidays (from June to September). Her annual income was about $10,000 at the time. [ 12 ] Following the accident and until December 2002, the respondent received weekly

Section B benefits ($220.20) for loss of income. Given that the total amount of those benefits exceeds the respondent’s loss of income during the period in question, it is expected the Pelletiers will not be found liable for that loss at the trial of the action in tort. That is so because s. 263(2) releases them to the extent of payments “made” under

Section B. The motion judge was therefore indisputably right when she gave the Pelletiers the full benefit of a release with respect to those payments in quantifying the advance payment. [ 13 ] Be that as it may, the respondent’s financial situation took a turn for the worse in December 2002 when Aviva, as

Section B insurer, terminated her loss of income benefits. On December 8, 2003, the respondent commenced proceedings to recover the unpaid benefits. In its Statement of Defence, Aviva contested the respondent’s right to those benefits on the ground that her disability did not meet

Section B’s eligibility requirements. Importantly, Aviva continues to rely on this ground of defence and, as of the date of the hearing in the court below, it had not paid any benefits for loss of income since December 2002. Clearly, if the respondent had not commenced an action for the recovery of unpaid

Section B benefits or had abandoned the action she actually launched, the Pelletiers could not have relied upon s. 263(2) and unpaid loss of income benefits to resist the motion under s. 265.6 . That is so because the motion judge would not have been at liberty to find those benefits were available within the meaning of s. 263(2) (see Morris v. Collette , 2003 NBCA 35 , 259 N.B.R. (2d) 1, at paras. 18-20 , and Hilchie v.

Hashey , 2004 NBQB 318 , 280 N.B.R. (2d) 50, at paras. 10-13 (Grant, J.)). [ 14 ] In addition, the respondent has been receiving disability benefits under the Canada Pension Plan ($501.63 monthly) since February 6, 2008. In February 2008, she also received, by way of a lump sum ($10,119.32), disability benefits retroactive to November 2006.

Though they concede those payments cannot be applied to reduce their liability for the respondent’s damages, the Pelletiers argue they are part of the respondent’s “resources” and, as such, should have weighed in the quantification of the advance payment. [ 15 ] On May 26, 2008, the respondent’s two actions were “joined” pursuant to the terms of a consent order. The order provided that [TRANSLATION] “evidence adduced in one action shall be considered as evidence in the other”.

Obviously, that wording contemplated the continued separation of the two actions but, as will be seen, the motion judge concluded, for reasons that remain obscure, that the order brought about their consolidation. I will return to this pivotal issue. [ 16 ] In May 2008, the respondent brought the motion for an order under s. 265.6 that gives rise to the present appeal. On March 9, 2010, the motion judge issued the following order: 1.

THE COURT ORDERS the defendants PELLETIER PLUMBING & HEATING LTD. and CARMEL PELLETIER to pay to the plaintiff LINDA CYR the sum of SEVENTY-TWO THOUSAND FOUR HUNDRED NINETEEN DOLLARS AND SEVENTY-ONE CENTS ($72,419,71) as advance payment, comprised of the following amounts:

a) Past loss of income $71,463.84

b) Medication $955.87 Total: $72,419.71 2. THE COURT ORDERS the defendants PELLETIER PLUMBING & HEATING LTD. and CARMEL PELLETIER topay to the plaintiff LINDA CYR monthly benefits in the amount of ONE THOUSAND FIFTY-TWO DOLLARS AND SIX CENTS($1,052,06) commencing March 1, 2010, until otherwise ordered by the Court or agreement of the parties. Such monthly benefit is forreimbursement of the following monthly expenses:

a) Purchase of medication: $117.13

b) Cost of physiotherapy and travel: $101.60

c) Loss of future income $833.33 Total: $1,052.06 3. The amounts set out in above-mentioned items 1 and 2 shall be payable to Marylène Pilote in Trust at 121 Church Street, Suite304, Edmundston, New Brunswick, E3V 1J9. 4. Each party shall pay its own costs of this Motion. This order shall take effect on March 1, 2010. [17] The Pelletiers seek the “nullification” of the part of the order that provides for an advance payment of special damages forloss of income. In the alternative, they request a “substantial” reduction of the payment ordered. The grounds of appeal are as follows:

i) The court below erred as to the relevant principles of law in its application of s. 265.6 of the Insurance Act, R.S.N.B. 1973,c. I-12, as well as with respect to the required test enunciated in Smith v. Agnew (2001), 2001 NBCA 83 , 240 N.B.R. (2d) 63(C.A.) (hereinafter referred to as Smith), and in awarding an advance payment of damages for loss of income. ii) The court below erred as to the relevant principles of law when it determined that the decision in Morris v.

Collette (2003), 2003NBCA 35 , 259 N.B.R. (2d) 1 (C.A.) (hereinafter referred to as Morris), is applicable to the plaintiff’s motion for advancepayment. iii) The court below erred as to the relevant principles of law by failing to consider all of the relevant circumstances set out ins. 265.6 of the Insurance Act, R.S.N.B. 1973, c. I-12, and, more specifically, by not taking into account the benefits likely to berecovered by the plaintiff in its

Section B action against Aviva Insurance Company of Canada, which was consolidated with the mainaction by Consent Order dated May 26, 2008. II. Analysis and Decision [18] In Agnew v. Smith, 2001 NBCA 83, 240 N.B.R. (2d) 63, the Court articulated the analytical framework governing theapplication of

section 265.6: … [Section] 265.6 envisages a bifurcated process … In the first stage of the process under s. 265.6, the court is concerned with thedefendant’s liability for the special damages identified in the plaintiff’s Notice of Motion. The expression “those damages” in s. 265.6(2)refers to the type, rather than the amount of special damages specified in the plaintiff’s application. If it were otherwise, any applicationwould meet with failure unless it specified the precise amount of special damages for which, in the view of the motions judge, the

defendant will be found liable at trial. In the second stage, the motions judge focuses on the quantum of the advance payment. The debate in the first stage will be resolved in the plaintiff’s favour if the judge is satisfied that the final judgment will more probably than not include an award of special damages of the kind targeted by the application. Obviously, if the evidence shows that the defendant will more likely than not establish a complete defence to the action, the motion must be dismissed .

In the second stage, the motions judge may take into account “any circumstances he or she considers relevant” in calculating the amount of an advance payment. See s. 265.6(4). The benchmark for relevance in that context is the plaintiff’s entitlement to an immediate payment of the special damages that are both specified in the Notice of Motion and likely to form part of the damages award at trial. In most cases, the following step-by-step approach will be appropriate in the second stage of the analysis under

section 265.6 . The judge should first determine the special damages that the plaintiff will more likely than not prove at trial, without regard to any of the defences pleaded in the Statement of Defence or to any counterclaim. Full effect should then be given to those defences and any counterclaim that the judge is satisfied will more probably than not be proven at trial. These defences typically include contributory negligence as well as statutory releases and offsets.

If after giving full effect to those defences and any counterclaim, the judge is not satisfied that the plaintiff will be awarded some compensation for the special damages in question, the motion must be dismissed . I would add that, even though the defendant fails to establish to the necessary standard that a particular defence will prevail at trial, he or she may nonetheless benefit from a reduction in the contemplated advance payment if there is a real or substantial possibility that the defence will find favour with the trial judge.

Any such reduction must be commensurate with the defence’s chances of success and potential impact. [paras. 68-71] [Emphasis added.] [ 19 ] The motion judge expressed the view that the respondent will have suffered no loss of income attributable to the Pelletiers if she is successful in her action against Aviva for

Section B loss of income benefits. She concluded [TRANSLATION] “there is a strong possibility that, at trial, the

Section B insurer will be ordered to pay [the respondent’s loss of income]” (para. 27). Notwithstanding that conclusion, which stands uncontested on appeal, the judge allowed the motion and ordered the Pelletiers to pay, by way of lump sum, the respondent’s past loss of income, together with installment payments equal to her monthly loss of income until trial.

The following is the motion judge’s detailed reasons for decision on the issue of the deductibility of the amount the trial judge will likely order Aviva pay the respondent, reasons that are based on the premise that the two actions, having been consolidated, stand to be adjudicated at the same time in one single judgment: [TRANSLATION] The plaintiff asserts that [the question of deductibility] was [resolved] by the Court of Appeal in Morris v. Collette , 2003 NBCA 35 , [2003] N.B.J. No. 172. … Deschênes, J. added the following, at paragraph 21 [of the majority reasons in Morris ]: 21.

There was no obligation on Mr. Morris’ part to pursue his

Section B claim against his own insurer by starting a legal action against his own

Section B insurer in the first place. He had a right to choose to pursue his claim against Mr. Collette without jeopardizing his position. Mr. Morris had no obligation under the circumstances to maintain two legal actions, one against his own insurer for

Section B benefits and another tort action against Mr. Collette. Having started an action for

Section B benefits against his own insurer, he was under no obligation, in my view, to continue it and, therefore, the discontinuance of the action is of no importance. Deschênes, J. stated as follows, at paragraph 23: 23. … As of March 30, 1994, the

Section B benefits were not “available” pursuant to s. 263(2) because they were being denied by Mr. Morris’

Section B insurer and Mr. Collette was thus not allowed to benefit from any deductions beyond that date. In my view, although there may be an argument that Mr. Morris might be “entitled” to

Section B benefits, such benefits were not “available” for reasons alluded to. … The defence argues that Morris is distinguishable on the facts, given that it was a decision rendered at trial rather than a motion for

advance payment. I am satisfied that the plaintiff will prove that the defendants are liable for the kind of damages being sought. I find that only payments received pursuant to

Chapter B may be offset against an advance payment. As regards payments that the

Section B insurer has refused to date to make, even if it can be said that Ms. Cyr is “entitled” to such payments, they have not been received and they are not “available” since the insurer refuses to make them . … I dismiss the defendants’ argument that the plaintiff must rely upon her

Section B insurer for payment of the benefits to which she is entitled under

Section B. Even though it appears in this case that the plaintiff is entitled to

Section B benefits, they are not available to her at this time. As to the issue of who is liable for loss of income and the costs of medication and rehabilitation, it appears that Aviva is in fact liable for the payment of these benefits as the provider of

Section B insurance coverage to Ms. Cyr under

section 256 of the Insurance Act . As to whether the defendants can raise this ground of defence within a motion for advance payment, I would reply in the negative and I adopt the comments made by Grant, J. in Hilchie v. Hashey , 2004 NBQB 318 , [2004] N.B.J. No. 325, where he states at para. 11: “In order to succeed on this defence, a defendant must not only show that the plaintiff was ‘entitled’ to the benefits but also that the benefits were ‘available’ to her.” In my view, the defendants’

interpretation of s. 265.6 of the Insurance Act is regressive. One must not “frustrate the intention of the no- fault legislation which is to make compensation available quickly, without regard to fault.” (See para. 19 of the decision of the Court of Appeal in Morris ). As Drapeau, J. stated in Smith , at para. 64 : “

Section 265.6 was brought into the mix as a trade-off for the more defendant-friendly companion amendments to the statute. That contextual reality confirms the appropriateness of a liberal

interpretation of

section 265.6.” [paras. 29-49] [Emphasis added.] [ 20 ] As stated several times, a judge cannot order an advance payment unless he or she is satisfied that the defendant’s liability for the damages sought in the motion under s. 265.6 will be established at trial . In Agnew v. Smith , the Court explained that a determination under this scheme “rests upon a prediction as to the trial judge’s decision in respect of the defendant’s liability for the special damages specified in the plaintiff’s application for an advance payment” (para. 3). Accordingly, as a general rule, when the plaintiff is receiving

Section B benefits for loss of income and it is reasonably foreseeable that such payments will continue for an unspecified length of time, the Court must take into consideration both past and future payments in fashioning its decision under s. 265.6 (see Agnew v. Smith , at para. 71 ). [ 21 ] In the case at bar, even though Aviva terminated loss of income benefits and disputes the respondent’s entitlement to their payment, there is a strong possibility that it will be ordered to pay those benefits retroactive to when payments ceased in December 2002.

The Pelletiers argue that if this occurs, the respondent will not have suffered any loss of income attributable to the defendants in the tort action. According to the Pelletiers, it follows from the scenario accepted in the court below that the outcome at trial will be dictated by the extinguishment, pursuant to the release provided by s. 263(2), of any liability on their part. That being so, the Pelletiers argue the motion judge lacked the requisite jurisdiction to make the order under appeal.

With respect, I cannot subscribe to that view and in my opinion, the order must be confirmed, though for reasons somewhat different from those expressed by the motion judge. . [ 22 ] The Pelletiers’ central thesis rests on the proposition that the May 28, 2008 order brought about the consolidation of the tort action with the

Section B action. That is simply not the case and in my respectful view, the motion judge fell into error in concluding otherwise. It bears underscoring that, if the two actions had been consolidated, all of the respondent’s claims would be adjudicated in a single judgment which, on the motion judge’s findings, would likely order Aviva to pay the loss of income benefits claimed by the respondent. That judgment could not overlook s. 263(2) and fail to give effect to the release from liability it provides the Pelletiers with respect to the respondent’s special damages for loss of income.

[ 23 ] Fortunately for the respondent, the May 28, 2008 order does not contemplate a consolidation of the actions, but only that they be “tried together” in accordance with Rule 6 of the Rules of Court . In that event and unlike what occurs when there is consolidation, each action maintains its distinct identity and requires the entry of a separate judgment (see Doiron and Careau v. Hogan , 2001 NBCA 97 , 243 N.B.R. (2d) 263, at para. 17 ). In fact, it is my view that a “trial together” order (like the May 28, 2008 order) should indicate whether the actions will be tried at the same time or consecutively.

In the latter case, the order might also provide for the sequence of trials even if, at the end of the day, those determinations are subject to the discretion of the trial judge (see Rule 6.01(3)). Obviously, those details are irrelevant when actions have been consolidated. [ 24 ] The respondent’s two actions retain their distinct identity and require the entry of separate judgments (see Gamblin v. O’Donnell and Absher , 2001 NBCA 110 , 244 N.B.R. (2d) 142, at paras. 2-3 ).

Since it is the Pelletiers who contended in the court below that s. 263(2) will operate to release them at trial in relation to any claim for income-related special damages, they bore the burden of establishing all of the conditions precedent to the application of that provision. It goes without saying that, if the first judgment pertained to the initial action, namely the action against the Pelletiers,

Section B loss of income benefits would not be “available” at that time and the Pelletiers would not be entitled to the benefit of s. 263(2). That scenario would culminate with a judgment for the full amount of the respondent’s income-related special damages: Morris v. Collette is the leading case on point and rules out any other outcome. Critically, however, there is nothing in the record to support the conclusion that the first judgment will relate to the action against Aviva for

Section B benefits. It follows that the Pelletiers have not established a condition precedent to the application of s. 263(2). That being the case, there is no basis upon which the order under appeal could be “nullified”. [ 25 ] Furthermore, I am of the view that the motion judge did not err in the exercise of her discretionary power when she quantified the advance payment without taking into consideration the respondent’s resources, including her disability benefits under the Canada Pension Plan.

The evidence as well as the admissions of fact contained in the record allowed the judge to assess the loss of income as she did, and nothing required her to take the respondent’s resources into consideration in quantifying the advance payment. The Pelletiers’ submission to the contrary is at odds with the Court’s observations on point in Agnew v. Smith : Finally, the judge may, if necessary, continue the exercise contemplated by s. 265.6(4) by taking into consideration the needs and resources of the plaintiff as well as the means of the defendant. Subsection (

e) allows, but does not obligate the judge to take these circumstances into account in calculating the amount of an advance payment. I am of the view that those circumstances should be allowed to influence the outcome only in exceptional cases . After all, neither the plaintiff’s needs and resources nor the defendant’s means drive the application of s. 265.6 . That provision seeks to cause the defendant to transfer, sooner rather than later, moneys that the motions judge is satisfied rightfully belong to the plaintiff. Moreover, any consideration of the circumstances enumerated in s. 265.6(4) (

e) necessarily entails invasions of privacy that should, because of their seriousness, be avoided in all but the most exceptional cases. [para. 72] [Emphasis added.] [ 26 ] Clearly, the case at hand is far from exceptional and the motion judge would have strayed from the beaten path had she taken the respondent’s modest resources into consideration to reduce the advance payment that would otherwise have been warranted. In any event, her refusal to factor those resources into the equation was a discretionary decision, and in The Beaverbrook Canadian Foundation v.

The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161, the Court held that such a decision 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, or if it is unreasonable in the sense that nothing in the record can justify it.

None of those conditions has been met in the present case. [ 27 ] Finally, with regard to the risk of “over-compensation”, an issue raised by the Pelletiers (without much conviction or enthusiasm, it bears noting), I make mine the views expressed by the motion judge: [TRANSLATION] As we all know, the defendants are entitled to an offset of payments made pursuant to an order under

section 265.6 . This applies to both special and general damages. There will no doubt be an award of general damages in this case. Nothing prevents the defendants from recovering their overpayment if the amount awarded to Ms. Cyr at trial is less than the amount of the advance payment ordered. Furthermore, given that the

Section B insurer will also be before the Court at the time of trial, any adjustments can be made at that time and this will reduce any risk of over-compensation. [para. 44]. III. Conclusion and Disposition [ 28 ] For those reasons, I would dismiss the appeal. The parties having abandoned their respective claims to related fees and disbursements, I would order them to bear their own costs.

__________________________________ J. Ernest Drapeau, Juge en chef du Nouveau-Brunswick NOUS SOUSCRIVONS À L’AVIS: ____________________________________ M.E.L. Larlee, j.c.a. ____________________________________ Kathleen A. Quigg, j.c.a.