BC Take Five January 2013

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BRITISH COLUMBIA EDITION EDITION

INSIDE THIS ISSUE:

Insurance Policies; Interpretation; Eligibility for Benefits

Family Law; Apportionment of Assets; Reapportionment - With Counsel Comments

Insurance; Motor Vehicles; Limitation Periods - With Counsel Comments

Bankrupty and Insolvency; Secured Creditors; Employee Wages and Benefits

Torts; Foreseeability of Damages; Costs of Future Care of Plaintiff’s Spouse- With Counsel Comments

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Featured Cases:

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feature article- “ending life support” by Trevor R. Todd and Judith Milliken, Q.C.- p. 19

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The Appellant was Jill Jackson. The

Respondent was The Standard Life Assurance Company (“Standard Life”). Ms. Jackson was employed as a vice-principal at Golden Secondary School, beginning August 15, 2005. On August 27, 2005, she became ill and did not return to work before her resignation on August 31, 2006. Ms. Jackson was enrolled in, and claimed one year of disability benefits under, a medical disability plan issued by Standard Life. Standard Life refused coverage on the basis that Ms. Jackson was ineligible because she had failed to complete the eligibility period. The policy stated that: “[a]n employee becomes eligible [for benefits]… [on the] 1st of the month coincident with or immediately following employment date.”

Standard Life argued that the wording of the policy meant that Ms. Jackson was ineligible for benefits until September 1, 2005, after the date of her claim. Ms. Jackson submitted that the month ‘coincident with her employment date’ was August 2005, and therefore she was eligible for benefits as of the first day of August 2005. The trial judge found that while only Standard Life’s interpretation could be supported by the wording of the policy, that interpretation had extreme effects which meant it could not reasonably bear that meaning. An employee who missed work on the first day of the month immediately following commencement of employment would never become eligible for benefits.As neither interpretation was appropriate, the trial judge then considered whether the remainder of the agreement evidenced the intentions of the parties and the objective of the policy with respect to the eligibility period. Considering that ambiguities in policies should be resolved in favour of the insured, the trial judge found that:

“the disputed term should be read so as to mean that the eligibility period for all employees is one full day of employment which qualifies as being “actively at work,” whether that one day occurs on the first day of the month or on any other day of the month in which employment is commenced.”

The trial judge held that Ms. Jackson was therefore covered by the Standard Life policy on the date of her disability.

Jackson v. The Standard Life Assurance Company, 2012 BCCA 503Areas of Law: Insurance Policies; Interpretation; Eligibility for Benefits

~Policy eligibility on “1st of the month coincident with or immediately following employment” meant coverage began the calendar month following start of employment, unless employment started on first of month~

BACKGROUNDCLICK HERE TO ACCESS

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http://www.courts.gov.bc.ca/jdb-txt/CA/12/05/2012BCCA0503.htm


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The appeal was allowed and the Court held that Ms. Jackson was not covered by the policy. The Court considered the decision of the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, which held that “when the language of the policy is unambiguous, the court should give effect to clear language, reading the contract as a whole”. Rules of interpretation, including the contra preferentum rule, were to be applied only when the wording of the policy was ambiguous.

The Court reviewed a number of other cases involving similar eligibility wording, and found that the phrase “[on the] 1st of the

APPELLATE DECISION

month coincident with or immediately following employment date” was not ambiguous, and meant that Ms. Jackson became eligible for benefits on September 1, the first day of the month following her commencement of employment.

The Court considered that there was no other reasonable interpretation of the eligibility wording. The trial judge’s finding required that the Court interpret “the 1st of the month” to refer to any date in the month which immediately followed employment. While arguably more fair to employees, the plain meaning of the words “1st of the month” could not reasonably bear such an interpretation. The Court found that Ms. Jackson became eligible for disability benefits on September 1, after the date of her disability, and therefore was not covered by the policy.

Jackson v. The Standard Life Assurance Company, (cont.)

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The Appellants were Kia Thi Truong and Len Ngoc

Tran. The Respondent was Trang Phuong Tran. The Trans were involved in divorce proceedings and this hearing dealt with the division of properties held by the parties. In 2009, the trial judge had made an order (the “2009 Order”) in respect of child and spousal support in the divorce, and apportioned family assets including real estate. In 2011, the Respondent applied for an order that the family real estate be sold and that the proceeds be used to pay out her interest in those properties, plus arrears of child support, other awards, and previously awarded costs. This resulted in a different division of the

assets than set out in the 2009 Order. The Appellant argued that the Court did not have jurisdiction to revise an entered order for the division of family assets made under s.66 of the Family Relations Act, R.S.B.C. 1996, c. 28 (the “Act”), which read:

66(1) …the Supreme Court may determine any matter respecting the ownership, right of possession or division of property under this Part… and may make orders that are necessary, reasonable or ancillary to give effect to the determination.

(2) Without limiting subsection (1), the court may do one or more of the following in an order under this section:

(a) declare the ownership of or right of possession to property;

BACKGROUND

Truong v. Tran, 2012 BCCA 492Areas of Law: Family Law; Apportionment of Assets; Reapportionment~Trial judge had no jurisdiction to materially alter terms of apportionment of family assets after order was made~

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(b) order that, on a division of property, title to a specified property granted to a spouse be transferred to, or held in trust for, or vested in the spouse either absolutely, for life or for a term of years;

(c) order a spouse to pay compensation to the other spouse if property has been disposed of, or for the purpose of adjusting the division;

(d) order partition or sale of property and payment to be made out of the proceeds of sale to one or both spouses in specified proportions or amounts;

(e) order that property forming all or a part of the share of either or both spouses be transferred to, or in trust for, or vested in a child;

(f ) order that a spouse give security for the performance of an obligation imposed by order under this section, including a charge on property…;

(g) if property is owned by spouses as joint tenants, sever the joint tenancy.

(3) If the Supreme Court, on application, is satisfied that a spouse has made or intends to make a gift of property to a third person, or has transferred or intends to transfer property to a third person who is not a purchaser in

good faith for value, for the purpose of defeating a claim to an interest in the property the other spouse may then or in the future have under this Part, the Supreme Court may make an order under this section to restrain the making of the gift or transfer, or vest all or a portion of the property in, or in trust for, the other spouse.”

The trial judge found that section 66 of the Act did grant jurisdiction to amend the 2009 Order, “in circumstances where it is necessary to give effect to the judgment.” Accordingly, the trial judge granted the order sought by the Respondent and varied the division of assets set out in the 2009 Order.

Truong v. Tran, (cont.)

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Truong v. Tran, (cont.)

The Court allowed the appeal and found that the trial judge had no jurisdiction to amend the 2009 Order as to the division of assets. The Court reviewed the order sought by the Respondent and found that it was not made simply to effect the division of assets in the 2009 Order, but materially altered the determination in that Order. The Respondent cited the reapportionment granted in Frost v. Frost, (1983), 57 B.C.L.R. 245 (C.A.), as support for the jurisdiction of the Court to adjust the

APPELLATE DECISION

original apportionment. In that case, the Court of Appeal held that a trial judge could reapportion a division of family assets in order to effect the original order. However, that jurisdiction was limited, and could not empower the Court to grant a different order than the one granted at first instance: Ellerbeck v. Ellerbeck, (1994), 7 R.F.L. (4th) 461, and Klassen v. Klassen, 2001 BCCA 445. The Court held that once the trial judge’s order was made, he was functus officio, and the appropriate avenue to materially change the terms of an order was an appeal. Collection of unpaid amounts under the 2009 Order was appropriately made as a judgment creditor, not by seeking reapportionment of the family assets.

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“In this case the Court of Appeal had occasion to explore the limits of a trial court’s jurisdiction to vary its own entered order. Specifically, the Court of Appeal

explored the express power granted the trial court in s. 66 of the Family Relations Act (FRA).

Generally speaking, a trial court has “…an unfettered discretion” to vary an unentered order. However, once the order is entered, the trial court has only narrow authority to vary (Naderi v. Naderi, 2012 BCCA 16 at para. 24, citing Harrison v. Harrison, 2007 BCCA 120). The trial court may vary an entered order to correct a clerical error or an accidental omission or ‘slip’ pursuant to Rule 13 - 1(17) of the Supreme Court Civil Rules. Section 66 (3) of the FRA authorizes the trial court to vary an entered order relating to the apportionment of matrimonial property when the trial court is:

“…satisfied that a spouse has made or intends to make a gift of property to a third person, or has transferred or intends to transfer property to a third person who is not a purchaser in good faith for value, for the purpose of defeating a claim to an interest in the property the other spouse may then or in the future have under this Part, the Supreme Court may make an order under this section to restrain the making of the gift or transfer, or vest all or a portion of the property in, or in trust for, the other spouse.”

As with most matters that end up in the appellate court, there were a number of facts in this case that were slightly off centre. The Appellants were not parties or even witnesses in the 2009 FRA trial between the Plaintiff husband and the Defendant wife. There was therefore no evidence from the Appellants’ perspective in the trial record. At the time of the 2009 FRA trial, the Appellants were the registered owners of a 2/3rd interest in the matrimonial home and a commercial property – a small family-run restaurant in which the Appellants had worked full time since immigrating to Canada in the late 1990’s. The husband was the registered owner of the remaining 1/3rd interest in both properties. The Appellants were the husband’s mother and sister. The trial judge found both properties to be family assets and therefore available for apportionment in the FRA action.

In addition to making several adverse findings against the husband’s credibility, the trial judge specifically disbelieved the husband’s evidence that the transfer was intended to compensate the Appellants for their years of unpaid work. The trial judge found the transfer to the Appellants

COUNSEL COMMENTS Truong v. Tran

Comments provided by Marc Misner, Counsel for the Appellants, Kia Thi Truong and Len Ngoc Tran

Marc Misner


January 2013


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happened just weeks after the husband and wife began having marital problems and that the purpose of the transfer was to insulate the properties from a claim by the wife (Tran v. Tran, 2009 BCSC 1647, at para. 83).

After considering the husband’s transfer of a 2/3rds interest to the Appellants, the trial judge reapportioned to the wife 100% of the husband’s remaining 1/3rd interest in the properties in part because of the husband’s pre-trial “asset spending spree”.

Two years after the trial, the husband had accumulated significant arrears of child and spousal support and had still not paid the wife’s trial costs.

In 2011, the trial judge granted the wife’s chambers application including orders compelling the sale of the matrimonial home and commercial property, and orders that in effect reallocated to the wife 100% of the Appellants’ entitlement to 2/3rds of the sale proceeds.

In granting the 2011 chambers order, the trial judge relied on s. 66(3) of the FRA finding that the preconditions set out in that section were met. Specifically, the trial judge found:

•the husband had transferred the two properties (which were family assets) to the Appellants (i.e. his mother and sister);

•the Appellants were not purchasers in good faith for value; and•the purpose of the transfer was to defeat the wife’s claim to an interest in the two

properties.

In overturning the trial judge’s 2011 order, the Court of Appeal distinguished the facts in this case from the facts in Frost v. Frost, 57 B.C.L.R. 245 (C.A.). The Court of Appeal noted (at para. 38) that in Frost, the husband had mishandled family assets the trial court had apportioned to the wife such that he could not pay the wife’s portion. The wife obtained an order (upheld on appeal) that in effect re-adjusted the remaining assets so that she would get assets commensurate with what was originally ordered.

By contrast, in this case the Court of Appeal (at para. 46) ruled the 2011 order was a “…materially different apportionment…” than that awarded at trial, and therefore the trial court did not have the jurisdiction to make such an order.

It is of note that the Court of Appeal expressly did not consider a trial court’s authority to use s. 66(3) as a collection mechanism or to secure payment of future obligations in the first instance (presumably at trial) when there is evidence family assets (or potential family assets) have been disposed of or are in danger of being disposed of by way of, for example, an “asset spending spree”.

COUNSEL COMMENTS




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BACKGROUND

Dueck Chevrolet Cadillac Hummer Limited v. Insurance Corporation of British Columbia, 2012 BCCA 493Areas of Law: Insurance; Motor Vehicles; Limitation Periods~ Limitation period for actions to enforce motor vehicle insurance coverage began 60 days after filing the proof of loss, even without denial of coverage~

The Appellant was the Insurance Corporation of

British Columbia (“ICBC”). The Respondent was Dueck Chevrolet Cadillac Hummer Limited (“Dueck”). Dueck was a named insured under a policy of insurance which covered a vehicle which was destroyed while in the possession

of a lessee. Dueck submitted a proof of loss to ICBC on May 24, 2006. Section 144 of the Revised Regulation (1984) Under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (the “Regulation”) required ICBC to pay insurance claims within 60 days of receipt of a proof of loss, or July 23, 2006. However, ICBC did not finish its investigation into Dueck’s claim until December 15, 2006, when it sent a letter denying the claim. The letter was not delivered and was returned to ICBC on January 10, 2007. There was


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Dueck Chevrolet Cadillac Hummer Limited, (cont.)

no evidence that the denial of coverage was ever received. On July 22, 2008, Dueck received payment for salvage from ICBC’s sale of the car, and on October 31, 2008, Dueck commenced an action against ICBC, claiming insurance coverage. ICBC argued that the action was out of time, based on s.17 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”), which set a one-year limitation from the date the cause of action arose. ICBC submitted that the cause of action arose at the end of the 60-day

period within which it was required to pay claims under the Regulation, or July 23, 2006, notwithstanding that it had not completed its investigation at that time. Dueck argued that no cause of action arose until there was a clear communication from ICBC that it was denying the claim. Because no denial was ever delivered to Dueck, the limitation period had never started to run. The trial judge held that a cause of action under s.17 of the Act arose on receipt of “a clear and unequivocal signal to the plaintiff that if the plaintiff wishes to attempt to enforce its insurance contract, it must commence an action”: Kremsner v. Insurance Corp. of British Columbia, 2004 BCSC 130, 27 B.C.L.R. (4th) 172 (Chambers) (“Kremsner”), Dachner Investments Ltd. v. Laurentian Pacific Insurance Company (1989), 59 D.L.R. (4th) 123 (C.A.) (“Dachner”).

The Court allowed the appeal and found Dueck’s

action was out of time. The Court reviewed the Kremsner and Dachner decisions and, at para 42, found that Dachner was clear that:

“a cause of action will arise, depending on the terms of the policy, after the filing of the proof of loss and the expiration of the insurer’s time to pay, or sooner, upon a clear and unequivocal denial of coverage. A cause of action arises

APPELLATE DECISION

when the insured has a right to sue on the contract of insurance; this occurs either when the insured clearly and unequivocally denies coverage or when the insurer fails to pay within the prescribed time after the filing of the proof of loss.”

The Court found that Kresmner and the trial judge had both misinterpreted Dachner so as to start the limitation period only when a denial of coverage was communicated. Dueck had a right to sue on July 23, 2006, despite the fact that ICBC had not yet completed its investigation. Accordingly, that was the date the cause of action arose. The limitation period therefore ran out on July 23, 2007, and Dueck’s claim was out of time.




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“This important Court of Appeal decision puts to rest uncertainty that existed for the past several years as a result of a series on conflicting

decisions in the lower courts.

It has been well-established since a 1981 Court of Appeal decision in Benton v. ICBC that a plaintiff seeking coverage from ICBC will have the benefit of the longest of the three limitation periods available under s.17 of the Insurance (Motor Vehicle) Act [now s.17of the Insurance (Vehicle) Act]. The applicable limitation period can vary in the circumstances, depending on the nature of the coverage involved. However, certain Supreme Court of B.C. decisions had stated incorrectly that the limitation period that commences running under s.17 “within one year after the cause of action arose” could be extended and that it would not begin to run until a denial of coverage was communicated. The effect of those decisions, in some cases, was that the limitation period was extended indefinitely where (as in this case) no denial was communicated at all.

The Court of Appeal, in Dueck v. ICBC, noted the absurdity of an indefinite or potentially infinite limitation period that results from the notion that the limitation period does not begin to run until the insurer’s communication of a denial of coverage. The Court noted past decisions on the question of when a cause of action for insurance coverage arises. They were clear in stating that the cause of action arises either from a failure to pay the claim in accordance with the insurance contract or upon an unequivocal denial of coverage. Therefore, the timing of the communication of a denial of coverage may be relevant to whether the limitation period starts to run earlier than it otherwise would under the terms of the applicable insurance contract. Although a cause of action always can begin to run as soon as a claim is not paid as required under the contract (here after a maximum of 150 days according to terms of the contract provided by the regulations), or earlier if there is a denial of coverage communicated before that time, it does not follow that the limitation period is delayed until some later time based on the timing of the denial.

This decision should provide the Courts with clarity in respect of a number of future cases, some of which already are before the Courts. It also should provide guidance to Plaintiffs as to the time at which a claim must be brought or be statute-barred.”

COUNSEL COMMENTS Dueck Chevrolet Cadillac Hummer Limited v. Insurance Corporation of British Columbia

Comments provided by Michael Hewitt, Counsel for the Appellant, ICBC


January 2013


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BACKGROUND

Ted LeRoy Trucking Ltd. (Re), 2012 BCCA 511Areas of Law: Bankrupty and Insolvency; Secured Creditors; Employee Wages and Benefits

~Unpaid benefits contributions owing to benefits providers not “wages” and did not receive super-priority in bankruptcy proceedings.

The Appellant was Her Majesty the Queen in right

of Canada as represented by the Attorney General of Canada (“Canada”). The Respondents were PricewaterhouseCoopers Inc. (the “Receiver”), in its capacity as Receiver of Ted LeRoy Trucking Ltd., and the Trustees of the USW ‒ Coastal Forest Industry Health and Welfare Plan, Trustees of the IWA ‒ Forest Industry LTD Plan, Pacific Blue Cross, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 1-1937. Ted LeRoy Trucking Ltd. (the “Employer”) entered bankruptcy in 2008. Under s. 81.3 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “Act”), employees’ wage claims up to $2,000 were secured and in priority to all other claims:

81.3(1) The claim of a… worker who is owed wages… or compensation

by a bankrupt for services rendered… is secured… to the extent of $2,000… by security on the bankrupt’s current assets on the date of the bankruptcy. …

(4) A security under this section ranks above every other claim, right, charge or security against the bankrupt’s current assets…

As part of the employees’ wage packages, the Employer made contributions to benefit packages provided by the Trustees of the USW and IWA, and Pacific Blue Cross (collectively, the “Insurers”). The Insurers claimed the benefit of the priority granted by s.81.3 of the Act, arguing that the owed benefit contributions qualified as part of the employees’ “wages or compensation”.

The Receiver assigned the Insurers’ claims priority under s.81.3 of the Act, and Canada applied under s.135(5) of the Act to have those claims expunged. At trial, the judge held that such an application was in the nature of a judicial review of the Receiver’s decision rather than an action de novo. The trial judge found that the question had been decided in Ted Leroy Trucking Ltd. (Re), 2010 BCCA 223 (“Century Services”). In that case, the Court of Appeal held that “wages”, as used in section 81.3 of the Act, included contributions owed to the employees. The trial judge held that the Insurers should be considered representatives of the employees for the purposes of s.81.3, and therefore benefits contributions owed to the Insurers were eligible for priority under that section.







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The appeal was allowed and the benefit

contributions owing to the Insurers were declared unsecured claims. The Court considered the nature of an application under s.135(5) of the Act and held that such an application should be run as a trial de novo. It was an application to the Court to expunge a claim, rather than an appeal or judicial review

APPELLATE DECISION of the Receiver’s decision.

The Court found that Century Services applied only to benefits contributions that were owed to employees – that is, where the employees had not received the benefits. In this case, the employees had received benefits from the Insurers, and the claim was properly characterised as an amount owing by the Employer to the Insurers. The contributions would qualify for priority under s.81.3 if the employees had not received the benefits – but in that case the Insurers would have no claim. As there was no debt which could properly be considered as owing to the employees, the benefits contributions to the Insurers could not have the benefit of the priority granted to such debts under s.81.3 of the Act.

Ted LeRoy Trucking Ltd. (Re), (cont.)


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The Appellant was Cameron Rae Rowe. The Respondent was Kerry

Milliken. At trial, the Respondent received an award of $253,666 in damages for personal injury, which included $30,000 related to costs of future care for her husband. These costs for care of her husband were based on the fact that she would no longer be able to perform the necessary tasks personally, and would have to hie help. The husband’s disability arose after the events which founded the Respondent’s

action. The trial judge cited Lynn v. Pearson, [1997] B.C.J. No. 539 (S.C.), which awarded damages for the loss of future capacity to care for a spouse who was already disabled. The trial judge found that it was “readily foreseeable that an injury to a person’s shoulder that causes them difficulty in the carrying out of usual household tasks will cause the same or similar difficulty in performing tasks of a related nature even if those tasks come into existence after the injuries have been caused.” On appeal, the Appellant argued that this head of damages was too remote to be recoverable.

BACKGROUND

Milliken v. Rowe, 2012 BCCA 490Areas of Law: Torts; Foreseeability of Damages; Costs of Future Care of Plaintiff’s Spouse

~Costs of future care for Plaintiff’s spouse too remote to be recoverable where spouse’s disability arose after Defendant’s wrongdoing~


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Milliken v. Rowe, (cont.)

In a split decision, the appeal was allowed and the award was

reduced to remove the portion dealing with the costs of future care for the Plaintiff‘s husband. The majority considered the decision of the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (“Mustapha”). In Mustapha, the Court held that:

…Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] ... and which he

APPELLATE DECISION would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643)… the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.”

In this case, the majority held that the relevant facts were that, “at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind.” The question was therefore whether costs related to such possible future care were foreseeable at law. The majority answered that “while plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a ‘real risk’ in ‘the mind of a reasonable man in the position of the defendant’.” There were too many contingencies which could prevent the damages from ever arising, and in fact they had not arisen until well after the tort. Where care for a spouse was not presently taking place, or at least contemplated, it was not foreseeable to a tortfeasor at the time of the wrongdoing.


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“The monetary amount involved on this appeal was not particularly significant. This appeal, however, addressed complex issues concerning the principles

of foreseeability and remoteness of damages in the law of tort.

The respondent, Kerry Milliken, suffered right shoulder pain as a result of the motor vehicle accident of August 20, 2007, the effects of which the trial judge found to be ongoing with restrictions particularly with overhead reaching and lifting. The trial judge awarded damages to the respondent for costs associated with the care of her disabled spouse. The spouse’s disability was unrelated to the motor vehicle accident and arose after the accident. The appellant took issue with the award of $30,000 for the costs of future spousal care on the basis that those costs related to the needs of the respondent’s spouse and were too remote. The appellant should not have been burdened with those costs. Further, even if those costs were foreseeable and not too remote, the appeal raised the question as to what heading of damage should those claims be assessed. Given the decision on the issue of remoteness, the majority did not address that issue.

There is very little authority directly on point. At trial, the respondent relied on Lynn v. Pearson, [1997] B.C.J. No. 539 (S.C.) in support of her claim for spousal-related care costs. In Lynn, the elderly plaintiff was injured when he was struck in a crosswalk. At that time of the accident, he cared for his wife who was legally blind. One of the future care options

COUNSEL COMMENTS

Milliken v. RoweComments provided by Vanessa Gauthier, Counsel for the Appellant, Cameron Rowe

Vanessa Gauthier


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for the plaintiff, due to the injuries arising from the accident, was a supportive housing situation, whereby nursing care and personal assistance would be available to the plaintiff at an extra cost. The possibility of the accommodation of the plaintiff’s spouse was anticipated in the cost of future care report. Mr. Justice Rowan held that the cost of Mrs. Lynn’s future care was not, by itself, compensable. Rather, the cost of her future care could only be compensable to the extent that “….it is a justifiable adjunct to the future care of the Plaintiff.” Mr. Justice Rowan held that, if the supportive housing situation was available, the plaintiff’s wife could live in the same quarters and that to the extent that she would receive a benefit, “the benefit would be justified by the care and attention that she could and would provide to her husband.” In Milliken, the trial judge relied upon Lynn for the proposition that the cost of a spouse’s future care is compensable to the extent that it is a justifiable adjunct to the respondent’s future care. He held that as long as those costs arise because of the nature of the injuries suffered by the respondent and are reasonably necessary to promote the respondent’s health and well-being, they are not too remote.

The appellant argued that the trial judge erred by misapplying the legal principle enunciated in Lynn as the future spousal-related care costs awarded by the trial judge were care costs of the disabled spouse, with a collateral benefit to the respondent. Those costs were neither reasonably within the contemplation of the parties as a likely result of the appellant’s negligence, nor the immediate and natural consequence thereof. Moreover, the costs, even if foreseeable, were too remote to be recoverable.

The majority agreed with the appellant’s position that those costs were too remote. In finding for the appellant, the majority examined the law of foreseeability in tort damages, as canvassed in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2. S.C.R. 114. At paragraph 13 of Mustapha, Chief Justice McLachlin, stated the following on the scope of remoteness:

“….Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t}….and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty, [1967] A.C. 617 (P.C.), at p.643.

The fact that something is possible factually does not mean that it is reasonably foreseeable at law. In light of Milliken it would seem that the care costs of a plaintiff’s spouse may only be awarded in very limited circumstances.”

COUNSEL COMMENTS


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Spence Valuation

The question of termination of life often raises strongly held beliefs. In recent years we have seen several contentious cases dealing with questions ranging from doctor

assisted suicide to the withdrawal of life support systems. Remember Terri Schiavo the Florida woman whose case provoked a legal struggle that lasted from 1998 to 2005? After a judge ordered the removal of her feeding tubes, several appeals and government interventions followed, including President George W. Bush signing legislation designed to keep her alive. She finally died 2 weeks after life support was finally terminated.

There is a clear distinction between making a legal decision to withdraw life support and acts of euthanasia and assisted suicide. Under Canadian law, both euthanasia and assisted suicide are currently criminal offences. Paradoxically, there is no law against suicide itself . Thus unsuccessful candidates cannot be prosecuted.

End of life concerns arise daily in our medical system. According to a 2001 article entitled “Issues to consider when ending life support” in the American College of Physicians ACP Internist, 75% of U.S. hospital deaths occur after decisions made in consultation with the patient or patient’s family to withhold or withdraw treatment.

Where no such decision is made, a patient may remain on life-support systems for a lengthy period until he or she ultimately dies. Leaving aside any ethical or moral questions, the patient’s quality of life is presumably abysmal and the financial costs are staggering.

When a decision is made to withdraw life support, this is often done by withholding food, hydration, and ventilation. Controversy may arise as to whether or not this should occur and it may take several days to die. One may be tempted to ask: Would I want my own life terminated in such a manner?

Judith Milliken, Q.C.

FEATURE CLIENT ARTICLEEnding LifE Support

by Trevor Todd and Judith Milliken, Q.C.




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FEATURE CLIENT ARTICLE (cont.)

Examining the question of Withdrawal of Life Support

It is worthwhile to re-examine the conditions under which our society is willing to sanction the withdrawal of life support systems. Such questions generally arise in a legal context in the case of mental incapacity because provided an adult person is mentally competent, that person may lawfully refuse life-sustaining medical treatment, for example kidney dialysis.

It is crucial to recognize that death is inevitable—all that life support systems do is postpone that inevitability—they do not prevent death, rather they simply prolong life.

Canadian Case Law

An interesting examination of some of these questions recently arose in the case of Alberta (Child, Youth and Family Enhancement Act, Director) v D. L. 2012 ABCA 275 (appeal decision) 2012 ABQB 562 (trial) The trial decision also involves an excellent review of the law.

This case involved a 2 ½ year old girl who was brought to hospital in cardiac arrest which resulted in irreversible brain damage. After three months she remained deeply comatose and completely dependent on technology to remain alive. She had already undergone three episodes of pneumonia and would inevitably require invasive surgery with significant risks of bleeding and infection—for example her temporary tracheotomy tube would have to be replaced with a more permanent one. All medical specialists, including her treating physicians, unanimously agreed her condition was hopeless and that no further intervention was warranted.

The girl’s parents had signed a “do not resuscitate” direction on admission, however they were since charged with aggravated assault of their daughter and held in custody pending trial. Presumably if she died, they would face far more serious charges.

The provincial Director responsible for youth, had obtained an apprehension order from the court and commenced an application for permanent custody which was pending. The Director also brought an action in Alberta superior court (our equivalent of B.C. Supreme Court) asking the Court to invoke its parens patriae


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jurisdiction. Parens patriae is the inherent jurisdiction of the superior courts to intervene to protect children and promote their well-being. This jurisdiction was developed historically by the common law and is founded on the necessity to act to protect those who cannot care for themselves.

The parents opposed the Director’s application to the court to apply its “parens patriae” jurisdiction and raised religious arguments opposing the application. The court acknowledged the clear conflict of interest of the parents comparing their situation to the usual role of parents in providing instructions to medical staff in such dire situations.

The trial judge examined past cases involving the use of parens patriae jurisdiction. In particular she cited the Supreme Court of Canada case of E (Mrs) v Eve (1986) 2 SCR 388, 31, DLR (4th) 1. She referred to the Court’s opinion that the parens patriae “jurisdiction is very broad in nature and can be involved in matters regarding custody, health problems, religious upbringing, and protection harmful associations (at 426).” Furthermore, she relied on that decisions as saying the jurisdiction may be exercised “not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended,” (at 426)

Religious Beliefs

In terms of deciding the question of religious beliefs, the trial judge again referred to Supreme Court authority which held that the parental interest in terms of freedom of religion, while a fundamental aspect ,is not absolute and that religious practices can be limited where they impact on fundamental rights and freedoms of others. Thus it was a matter of weighing the both the parents’ rights to freedom of religion and the girl’s best interest.

Terminating Treatment --Is it in The Best Interests of the Patient?

The trial judge again reviewed several authorities where those with decision making authority on behalf of the patient were in conflict with each other or with the views of the medical team . Shecited with approval Lord Goff in Airedale NHS Trust v Bland, (1993) 1 All ER 821 (HL).

Lord Goff succinctly framed the issue as follows “the question is not whether it is





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in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.” (At para 33)

Having reviewed the law, the judge concluded that she did have parens patriae jurisdiction to make an order in the best interests of the child in this case. She observed that the cases reflect a “general societal understanding that a life without awareness and totally supported by machines is not in accord with the best interest of any patient, including a child,”. She found the evidence in this case, to be clear and unequivocal that it was in the girl’s best interest that life-sustaining treatment be stopped. There was unchallenged evidence that she would never regain consciousness and be interactive and that she would require invasive treatment imminently simply to be maintained on a ventilator.

The trial judge also found that although the parents’ religious beliefs were entitled to consideration, they were not determinative and were contrary to the child’s best interest in a fundamental way.

Accordingly the trial judge directed that it was in the girl’s best interest that the recommendation of the medical team be followed and that the girl be withdrawn from life-sustaining treatment and provided with palliative care. This decision was upheld by the Court of Appeal.

Conclusion

In summary, in Canada where it is the unanimous opinion of the medical specialists that treatment should be stopped because the patient’s continued life would be without awareness, without hope of recovery and with the need for invasive treatment with no potential benefit, then it is likely the court will find that continued life support should be terminated in the best interests of the patient.

As a practical matter, legal professionals should make their clients aware that in addition to a will, they ought to have a representation agreement or other form of advanced health care directive relating to the kinds of treatment that he or she would accept if the client is to become incapable. Such documents are relatively inexpensive to prepare and can relieve a great deal of family stress at a very difficult time.



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BC Take Five January 2013

Documents

Transcript of BC Take Five January 2013