Macartney et al. v. Warner [Indexed as: Macartney v. Warner]

46 O.R. (3d) 641

[2000] O.J. No. 30

Docket No. C21077

Court of Appeal for Ontario

Morden, Laskin and Rosenberg JJ.A.

January 11, 2000

Damages -- Family law -- Plaintiffs' son killed in motor vehicle accident -- Plaintiffs allegedly suffering loss of income as result of nervous shock -- Plaintiffs entitled to make claim for loss of income under s. 61(1) of Family Law Act -- Family Law Act, R.S.O. 1990, c. F.3, s. 61(1).

Insurance -- Automobile insurance -- No-fault provisions -- Plaintiffs' son killed in motor vehicle accident -- Plaintiffs' claim for damages for nervous shock barred by s. 266 of Insurance Act -- Insurance Act, R.S.O. 1990, c. I.8, s. 266.

The plaintiffs' 19-year-old son was killed in a motor vehicle accident near their home. On a motion under Rule 21 to determine certain questions of law prior to trial, the motions judge (who was also the trial judge) held that the plaintiffs' claim for damages for nervous shock arising out of the death of their son was not barred by s. 266 of the Insurance Act and that their claim for loss of income resulting from nervous shock was actionable under s. 61(2) of the Family Law Act ("FLA"). The defendant appealed. Despite the appeal, the action was tried. The trial judge dismissed the claim for damages for nervous shock on the basis that the claim was not made out. In an apparent reversal of his earlier ruling, he held that the plaintiffs could not sue for their loss of income under s. 61 of the FLA. He awarded the plaintiffs damages for loss of care, guidance and companionship under s. 61(2)(e) of the FLA.

Held, the appeal should be allowed in part.

Damages for nervous shock

Per Rosenberg J.A. (Laskin and Morden JJ.A. concurring): The plaintiffs' claims for damages for nervous shock were barred by s. 266 of the Insurance Act. The use of the word "the" in the phrase "the injured person" in s. 266(1) is significant. The immunity created by s. 266(1) is removed only if the injured person has died or suffered the requisite degree of physical injury. The phrase "the injured person has died or sustained . . ." must be read in context. The earlier reference to "loss or damage from bodily injury" in the phrase that creates the immunity must refer to loss or damage from bodily injury suffered by the injured person. The plaintiffs did not sue for the injuries to their son. Their claims were based on their own injuries. They were "the injured persons". Since their injuries did not meet the requirements of cls. (a) or (b) in s. 266(1), they could not pursue their claim.

Loss of income claim under s. 61 of the FLA

Per Laskin J.A.: The plaintiffs could maintain an action for their loss of income resulting from their son's death under s. 61(1) of the FLA. Under s. 2 of the Fatal Accidents Act, R.S.O. 1970, c. 164, damages were awarded only for pecuniary loss, and the pecuniary loss itself was restricted to the pecuniary benefits the surviving family members might reasonably have expected to receive from the deceased had he or she not been killed. Although an income loss is a pecuniary loss, the latter restriction precluded recovery for the kind of loss of income claim now asserted by the plaintiffs. The Fatal Accidents Act was repealed in 1978. In its place, the legislature enacted s. 60 of the Family Law Reform Act, 1978, S.O. 1978, c. 2 ("FLRA") and then s. 61 of the FLA. Trial decisions in Ontario and decisions elsewhere in Canada under comparable legislation support the view that s. 61(1) of the FLA is basically a restatement of the law under s. 2 of the Fatal Accidents Act. Those decisions should now be reconsidered.

The ordinary meaning of the words in s. 61(1) would permit recovery for the loss claimed by the plaintiffs. A basic principle of statutory interpretation is that the ordinary meaning of a legislative provision should prevail absent a good reason to reject it. Restricting the scope of pecuniary loss is inconsistent with the purpose of the Act. The FLRA was path- breaking legislation when enacted in 1978. Section 60(1) of the FLRA (and now s. 61(1) of the FLA) did not basically codify the existing law. It dramatically expanded recovery. For the first time, family members could sue for compensation for injury to their relatives. The new language of the FLRA, the new philosophy that underpinned that language, reflected not an intent to march backward in time, nor an intent to restrict compensation by present authority, but an intent to reform the law and to develop new principles of compensation founded on the words of the statute. The court should be very reluctant to sad dle the new legislation which an interpretation applied to a statute long outdated.

Section 61(2) of the Act does not limit the scope of s. 61(1). The general category "pecuniary loss" in s. 61(1) precedes the list of specific awards in s. 61(2). It can be inferred from the fact that this general or broad category precedes rather than follows the list of specific examples that the legislature did not intend to restrict the general category. Moreover, the specific examples in s. 61(2) are introduced by the words "may include". Those words show that the list of examples is not intended to be an exhaustive definition of the general category of "pecuniary loss". Providing specific examples introduced by the words can have only two possible purposes, neither of which restricts the general category. The legislative drafter may have used specific examples either to remove any ambiguity whether these examples are included in the general category or to evidence that the general category extends to matters otherwise thought to fall outside it. Whether intended to remove ambiguity or to extend the me aning of the general category "pecuniary loss", the specific examples in s. 61(2) were not intended to limit the scope of s. 61(1). Section 61(2) does not provide a reason to depart from the ordinary meaning of s. 61(1) or to restrict its scope.

The legislative history of s. 61 of the FLA does not provide a justification for departing from the ordinary meaning of s. 61(1).

There was no need to be concerned that this interpretation of s. 61(1) would open the door too wide and could, for example, compensate a loss of income because of the normal bereavement process. In each case, the court will have to apply the words of the statute and ask whether this is a "pecuniary loss resulting from the injury or death". These words may raise difficult questions of causation. The courts will have to develop a set of principles to resolve these causation questions and to govern compensation under s. 61(1). However, trial decisions have already held that a claim under s. 61 does not depend on questions of foreseeability or remoteness, questions that are relevant to a nervous shock claim. Moreover, the Saskatchewan Fatal Accidents Act, R.S.S. 1978, c. F-11 expressly permits family members to recover for their income loss in causal terms similar to s. 61(1) of the FLA.

The appeal should be dismissed from the part of the pre-trial ruling permitting the FLA claim to proceed to trial, and the appeal from the part of the ruling permitting the claim under s. 266 of the Insurance Act to proceed to trial should be allowed. Because the trial judge did not make the necessary factual findings to decide the plaintiff's loss of income claim, the trial judgment should be set aside and a new trial ordered on the loss of income claim.

Per Morden J.A. (concurring): The legislative history and evolution of s. 61 of the FLA, as well as the text, strongly support the view that the same kinds of losses should be recoverable as a result of fatal and non-fatal accidents, depending on the facts of the particular case. Accordingly, it is preferable to treat the clauses in s. 61(2) of the FLA (apart from s. 61(2)(e)) as being examples of some of the kinds of loss which are covered by s. 61(1) and not as extensions of the scope of s. 61(1). Accordingly, claims for loss of income should not be confined only to those specifically provided for in s. 61(2)(d). The legislation should be read as providing for a coherent and internally consistent scheme of compensation.

Per Rosenberg J.A. (dissenting): Section 60(1) of the FLRA (and s. 61(1) of the FLA, which is basically the same as s. 60(1) of the FLRA) constitutes basically a restatement of the law as it stood before the FLRA. The legislature did not intend a wholesale revision of the basis for recovery under the new statutory equivalent to s. 2 of the Fatal Accidents Act. If the plaintiffs were correct and if the family member could recover any pecuniary loss associated with the death or injury of a family member, cls. (a) to (d) of s. 61(2) would have been unnecessary and mere surplusage. The legislature had provided for recovery of those pecuniary losses in s. 61(2), such as nursing and housekeeping services, precisely because they would not have been recoverable under s. 61(1), or the predecessor legislation, not being an actual or expected loss of the pecuniary benefits arising from the relationship that would be derived from the contin uance of the life.

If s. 61(1) were interpreted as permitting a claim for pecuniary loss, there would be no basis for limiting the claim to pecuniary loss from nervous shock. Any pecuniary loss traceable to the fatal accident would be recoverable, even if nervous shock were not made out. This could include any loss of income from the normal (or even the abnormal) grieving process. Section 61 was not intended to encompass such claims. The plaintiffs could not bring their claim for nervous shock under s. 61(1) of the FLA.

APPEAL from a ruling on a Rule 21 motion permitting claims to go to trial.

Aerts v. Olson (1999), 1999 18720 (ON SCDC), 42 O.R. (3d) 741, 170 D.L.R. (4th) 183 (Div. Ct.); Frawley v. Asselstine (1990), 1990 6803 (ON SC), 73 O.R. (2d) 525, 70 D.L.R. (4th) 536 (H.C.J.); Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104, 22 C.C.L.T. 21 (C.A.); Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.); Vaiman v. Yates (1987), 1987 4345 (ON SC), 60 O.R. (2d) 696, 41 D.L.R. (4th) 186, 20 C.P.C. (2d) 33 (H.C.J.), leave to appeal to Ont. Div. Ct. refused (1987), 1987 4245 (ON SC), 63 O.R. (2d) 211 (H.C.J.), consd Other cases referred to Baker v. Bolton (1808), 170 E.R. 1033; Blake v. Midland Ry. Co. (1852), 18 Q.B. 93; Cogar Estate v. Central Mountain Air Services Ltd. (1992), 1992 1611 (BC CA), 72 B.C.L.R. (2d) 292 (C.A.); DeBrincat v. Mitchell (1958), 1958 483 (BC SC), 26 W.W.R. 634 (B.C.S.C.); Kemppainen (Litigation guardian of) v. Winter (1997), 1997 12307 (ON SC), 143 D.L.R. (4th) 760 (Ont. Gen. Div.); Littley v. Brooks & C.N.R., 1932 4 (SCC), [1932] S.C.R. 462; Miller Estate v. Bowness (1988), 1988 4620 (ON CA), 66 O.R. (2d) 750, 31 O.A.C. 146, 55 D.L.R. (4th) 286, 31 E.T.R. 94 (C.A.), affg (1986), 1987 4215 (ON SC), 58 O.R. (2d) 100, 35 D.L.R. (4th) 264 (H.C.J.), supp. reasons 58 O.R. (2d) 110 at 113, 35 D.L.R. (4th) 264 at 277 (H.C.J.); Montgomery v. Murphy (1982), 1982 3128 (ON SC), 37 O.R. (2d) 631, 136 D.L.R. (3d) 525 (H.C.J.); National Bank of Greece (Canada) v. Katsikonouris, 1990 92 (SCC), [1990] 2 S.C.R. 1029, 74 D.L.R. (4th) 197, 115 N.R. 42, [1991] I.L.R. 1-2663; St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 7 (SCC), 11 S.C.R. 422; Thornborrow v. MacKinnon (1981), 1981 1945 (ON SC), 32 O.R. (2d) 740, 123 D.L.R. (3d) 124, 16 C.C.L.T. 198 (H.C.J.) (sub nom. Schmidt (Re)); Tilley v. Hudson River Railroad Co., 24 N.Y. 474; Vana v. Tosta, 1967 21 (SCC), [1968] S.C.R. 71, 66 D.L.R. (2d) 97; Villeneuve v. Carson, Ont. Gen. Div., MacKinnon J., September 6, 1996 (unreported); Wiksech v. General News Co., 1948 63 (ON CA), [1948] O.R. 105, [1948] 1 D.L.R. 753 (C.A.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 61 Family Law Act, 1986, S.O. 1986, c. 4, s. 61 Family Law Reform Act, 1978, S.O. 1978, c. 2, ss. 60, 64(2) Fatal Accidents Act, R.S.O. 1970, c. 164, ss. 2, 3(1) Fatal Accidents Act, R.S.S. 1978, c. F-11, s. 4(2)(d) Insurance Act, R.S.O. 1990, c. I.8, s. 266 Lord Campbell's Act (U.K.), 1846, c. 93 (rep. 1976 (U.K.), c. 30) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 Authorities referred to Llewellyn, The Common Law Tradition -- Deciding Appeals (1960), pp. 528-29 O'Donnell, Automobile Insurance in Ontario (Toronto: Butterworths, 1991), p. 225 Ontario Law Reform Commission, Report on Family Law, Part I Torts (1969), pp. 106, 107, 109 Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), pp. 7, 208-09, 559

Donald G. Cormack, for appellant. David F. Smye, Q.C., and Michael J. Winward, for respondents.

[1] ROSENBERG J.A. (dissenting in part): -- The appellant appeals from the judgment of Yates J. on a motion brought under Rule 21 to determine certain questions of law prior to trial. The appellant was the defendant in an action arising out of a motor vehicle accident that occurred on July 7, 1990 and caused the death of Jeremy Macartney, son of the plaintiffs, Dana and Cecil Macartney. The action is governed by s. 266 of the Insurance Act, R.S.O. 1990, c. I.8, as enacted by the Ontario Motorists' Protection Plan. The appellant sought a determination as to whether the plaintiffs' claim for damages for nervous shock arising out of the death of their son was barred by s. 266. He also sought a determination as to whether at least part of the claim could be brought under s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3.

[2] In a brief endorsement, Yates J. held that the action could proceed. Although the appellant filed a notice of appeal against this judgment, the trial proceeded. In the result, Yates J., who was also the trial judge, found that the claim for nervous shock was not made out. The plaintiffs appealed that judgment. The two appeals were heard together and the reasons in the two appeals are being released contemporaneously. [See Note 1 at end of document] For the reasons that follow, I would allow this appeal.

THE FACTS

[3] Jeremy Macartney was a passenger in a car driven by his friend, the defendant David Warner. The plaintiffs Dana and Cecil Macartney were the parents of Jeremy. The plaintiffs Allan Earle and Marie Earle were the grandparents of Jeremy. The plaintiff Adam Macartney was Jeremy's brother. This appeal only concerns a part of the claim by Dana and Cecil Macartney (the respondents). As indicated, Jeremy was killed in the motor vehicle accident. The accident occurred near the Macartney home and Dana and Cecil claimed that they heard the crash and thereby suffered nervous shock.

[4] The respondents argued that they could bring a claim for general and special damages based on the tort of nervous shock notwithstanding the limits on tort liability as enacted by s. 266 of the Insurance Act. Alternatively, the respondents argued that they could bring a claim for damages for loss of income resulting from the nervous shock, pursuant to s. 61(1) of the Family Law Act. The appellant concedes that the respondents are entitled to compensation for the loss of Jeremy's guidance, care and companionship under s. 61(2)(e) of the Family Law Act. He denies that the respondents may make a claim for damages, however framed, arising out of nervous shock.

THE QUESTIONS AND THE DETERMINATION

[5] Regrettably, the questions posed for determination under Rule 21 were not clearly expressed. As set out in the notice of motion, they are as follows:

1. A judicial determination on the issue of nervous shock.

2. A judicial determination on the issue of allowable expenses pursuant to the Family Law Act.

3. A judicial determination as to whether the Plaintiffs' claims fall within the provisions of the Insurance Act, R.S.O. 1990, c. I.8 as amended, particularly Section 266.

[6] The determination made by the motions judge is as follows:

1. Claims for nervous shock arising out of the use and operation of a motor vehicle in the Province of Ontario are actionable.

2. The words "may include" in s. 61(2) FLA are not restrictive. Therefore, a claim for "loss of income" is actionable pursuant to this section.

3. Since Jeremy Macartney died as the result of the use and operation of a motor vehicle in the Province of Ontario on July 7, 1990, the "potential defendants" are not immune from liability in an action for loss or damage. (See Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) at p. 145.)

[7] Thus, Yates J. held that the respondents could pursue their nervous shock claim under both s. 266 of the Insurance Act and s. 61(1) of the Family Law Act.

[8] The resolution of this appeal depends upon the interpretation of s. 266 of the Insurance Act, and s. 61 of the Family Law Act. I will deal first with s. 266.

1. The Nervous Shock Claim under [s. 266](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)

The positions of the parties

[9] The provisions of the Insurance Act respecting the ability of a plaintiff to pursue a tort claim arising out of a motor vehicle accident in Ontario have been frequently amended. Section 266 of the Act, which applies in this case, was enacted by the Ontario Motorists' Protection Plan. The OMPP scheme applies to accidents that occurred between June 21, 1990 and December 31, 1993. It enacts a broad immunity from liability for the protected parties, such as the driver of the automobile, subject to certain exceptions. At this point, I need only refer to s. 266(1):

266(1) In respect of loss or damage arising directly or indirectly from the use or operation, after the 21st day of June, 1990, of an automobile and despite any other Act, none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liable in an action in Ontario for loss or damage from bodily injury arising from such use or operation in Canada, the United States of America or any other jurisdiction designated in the No-Fault Benefits Schedule involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.

(Emphasis added)

[10] The positions of the parties may be summarized as follows. The parties agree that nervous shock is "bodily injury" within the meaning of s. 266(1). Further, the appellant Warner, as an occupant of the vehicle, is a party protected by the legislation. Accordingly, the respondents agree that they can bring a tort claim arising out of the accident only if they fall within one of the three exceptions. The respondents also concede that they cannot come within the part of the exception for an injured person who has sustained permanent serious disfigurement or permanent serious impairment of an important bodily function that is physical in nature. Rather, they rest their claim on the exception where "the injured person has died." In short, they argue that since Jeremy died, the immunity created by s. 266(1) is displaced and all claims arising from that death may be pursued in the courts.

[11] The appellant's position may also be shortly stated. He argues that s. 266(1) removes the immunity from tort action only for "the injured person" who has died or sustained serious bodily injury as defined in cls. (a) and (b). Since neither of the respondents died or sustained the requisite degree of bodily injury, the immunity created by the section remains in place.

Analysis

[12] The positions of the parties are represented by the majority and dissenting reasons of the Divisional Court in Aerts v. Olson (1999), 1999 18720 (ON SCDC), 42 O.R. (3d) 741, 170 D.L.R. (4th) 183. In that case, O'Leary J., Cusinato J. concurring, held that a claim for nervous shock, as the result of the death of the plaintiffs' child, could not be brought. O'Leary J. placed particular emphasis on the use of the article "the" in the phrase "the injured person". His reasoning, in part, as set out at pp. 744-45 is as follows:

Section 266(1) creates an exemption to the immunity it confers on potential defendants where "the injured person has died" not where "an injured person has died". If the section had read where "an injured person has died" then all who suffered injuries "directly or indirectly" because of the accident would be able to sue for those injuries if the accident caused the death of anyone. But the section says in effect that the potential defendants "are liable in an action . . . for loss or damage from bodily injury" where "the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature".

It is to be noted that it must be the injured person who has died or whose injuries satisfy cls. (a) or (b) quoted above, before there is an exemption from immunity. Here the injured persons who are attempting to sue for their nervous shock injuries obviously have not died nor do they fit within cls. (a) or (b).

(Additional emphasis added)

[13] Southey J., in his dissenting opinion, held that the plaintiffs could pursue their nervous shock claim. In his view, it is the existence of the injuries to the requisite degree that removes the immunity. He held as follows at p. 748:

In the case at bar, the immunity for potential defendants otherwise created by s. 266(1) is removed because the injured person died. With the removal of that immunity, all claims arising out of the injuries to the injured person remain actionable, including claims for damages suffered by third persons for nervous shock resulting from those injuries. It is immaterial that nervous shock may not fall within the conditions described in cls. (b) or (c).

I can see nothing in s. 266 that limits the claims arising out of injuries that have caused death to claims under the Family Law Act. The claims under the Family Law Act have been described as "derivative claims". That description applies equally to claims for damages for nervous shock arising out of the injuries to the deceased person.

[14] In my view, the appellant must succeed on this part of the appeal. I agree with O'Leary J. that the use of the word "the" is significant and the immunity created by s. 266(1) is removed only if the injured person has died or suffered the requisite degree of physical injury. [See Note 2 at end of document] The phrase "the injured person has died or has sustained . . ." must be read in context. The earlier reference to "loss or damage from bodily injury" in the phrase that creates the immunity must, in my view, refer to loss or damage from bodily injury suffered by the injured person.

[15] Subsection (3) is of some assistance in this regard, if only because some of the intervening language is stripped away. That subsection provides as follows:

266(3) In an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before or at trial, determine if the injured person has, as a result of the accident, died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.

(Emphasis added)

[16] The respondents did not sue for the injuries to their son. Their claims are based on their own injuries. They are "the injured persons". But, since their injuries do not meet the requirements of cls. (a) or (b), they cannot pursue their claim.

[17] The respondents relied upon the decision of this court in Meyer v. Bright, supra. One of the issues considered in that case was whether a plaintiff whose injuries fell within cls. (a) or (b) could only sue for damages relating to those injuries. The court held, at p. 145, that once the plaintiff fell within the exemption from immunity, he or she could sue for any loss or damage from bodily injury. The court reasoned as follows [at p. 145]:

We think that the answer to this difference of opinion is found in the statute. For ease of expression when discussing s. 266(1) we will use the words "potential defendants" in place of the words "the owner of the automobile, the occupants of the automobile, or any person present at the scene". Section 266(1) creates an immunity for potential defendants from liability in an action for loss or damage. We stress that the words used by the legislature are that no potential defendant is "liable in an action . . . for loss or damage from bodily injury". The result is that potential defendants are immune from actions for damages. The legislature has, however, created exceptions. The immunity exists "unless" the injured person has died or sustained injuries which fall within cls. (a) or (b). The statute in express terms therefore has said that the immunity does not apply if one of the statutory exceptions is satisfied. If the statutory exception is satisfied the immunity created by the statute ceases to exist and there is no bar to an action. Because the immunity does not apply in such case an injured person retains his right to sue "for loss or damage from bodily injury" at large.

It is not necessary to differentiate between those injuries which fall within s. 266(1)(a) or (b) and those which do not. The action would proceed as if s. 266(1) had never been enacted.

(Emphasis added)

[18] The issue raised in this case was not before the court in Meyer v. Bright. In my view, that decision does not support the respondents' position. Neither of these respondents are injured persons within the meaning of s. 266(1) and thus the immunity remains. They cannot sue for the bodily injury (here nervous shock) that they sustained as a result of the operation of a motor vehicle by the appellant.

2. The Nervous Shock Claim under [s. 61](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)

The positions of the parties

[19] The respondents' claim for damages for nervous shock under s. 61 of the Family Law Act is narrower than it would be if they could maintain an independent action, notwithstanding s. 266(1) of the Insurance Act. The respondents argue that they are entitled to bring a claim for their "pecuniary loss" arising from the death of Jeremy. That pecuniary loss is a loss of income caused by the nervous shock. The respondents claimed that as a result of the nervous shock, Dana Macartney was completely unable to resume employment and Cecil Macartney could only maintain employment in a less stressful and lower paying job. They submit that they can bring their claim for loss of income under s. 61 of the Family Law Act. The relevant part of s. 61 is as follows:

61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purposes in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

(Emphasis added)

[20] As I indicated earlier, the appellant does not dispute that the respondents may bring a claim under s. 61(2)(e) for compensation for the loss of Jeremy's guidance, care and companionship notwithstanding s. 266(1) of the Insurance Act: see A. O'Donnell, Automobile Insurance in Ontario (Toronto: Butterworths, 1991) at p. 225.

[21] The appellant argues, however, that "pecuniary loss" in s. 61(1) is limited to the actual or expected loss of the pecuniary benefits arising from the relationship that would be derived from the continuance of the life. The respondents' loss of income from their own employment is not such a loss. Put another way, the appellant argues that s. 61(1) creates a statutory basis for pecuniary losses to the designated family members as a result of the injury suffered by the accident victim, but it is not a basis for injuries suffered by the family members themselves. Claims based on these latter injuries must be pursued in independent actions, unless they have been provided for in s. 61(2).

The reasons of Yates J.

[22] In his reasons in the motion made under Rule 21, Yates J. appears to have decided that the respondents' claim for loss of income from nervous shock was compensable under s. 61 of the Family Law Act. His complete reasons on the issue read:

The words "may include" in section 61(2) F.L.A. are not restrictive. Therefore, a claim for "loss of income" is actionable pursuant to this section.

[23] In his reasons at the conclusion of trial, Yates J. held that the claim for loss of income was not available under s. 61. He cited Frawley v. Asselstine (1990), 1990 6803 (ON SC), 73 O.R. (2d) 525, 70 D.L.R. (4th) 536 (H.C.J.) in support of this conclusion and made no reference to his earlier decision of the Rule 21 motion.

Analysis

[24] It is not possible to justify recognition of the respondents' claim under s. 61(2) and, before us, no attempt was made to do so. The respondents' argument was based entirely on s. 61(1) of the Family Law Act. In my view, Yates J. was correct when he denied the claim at trial. I agree with the general approach to the issue reflected in the reasons of Rosenberg J. in Frawley v. Asselstine, which relied upon the analysis of s. 60(1) of the Family Law Reform Act, 1978, S.O. 1978, c. 2 in the reasons of Robins J.A. for this court in Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104. For the purposes of this appeal, there is no material difference between s. 60(1) of the Family Law Reform Act and s. 61(1) of the Family Law Act. Robins J.A. said at p. 31 of Mason:

Although this section, like its predecessors and its English counterpart, speaks of "damages", and is silent on the nature and extent of the compensation that can be awarded, the courts have long held that damages can be given for pecuniary loss only. Blake v. Midland R. Co. (1852), 18 Q.B. 93, 118 E.R. 35. As a matter of judicial interpretation, recovery has been restricted to the actual or expected loss of the pecuniary benefits arising from the relationship which would be derived from the continuance of the life; recovery for non-economic or non-material advantages to the surviving family members has been excluded.

Pecuniary loss may consist of the support, services or contributions which the claimant might reasonably have expected to receive from the deceased had he not been killed. There need be no legal right to such benefits; a reasonable expectation of deriving economic advantage from the deceased's remaining alive is sufficient to sustain a claim.

(Emphasis added)

[25] At p. 37, Robins J.A. expressed the opinion that the jurisprudence under the Fatal Accidents Act, R.S.O. 1970, c. 164 was applicable to the interpretation of the Family Law Reform Act:

Subsection 1 of s. 60, apart from creating a new action allowing recovery of losses resulting from non-fatal injuries, constitutes, basically, a restatement of the law as it stood before the new Act was passed. The courts, as we have seen, have read a pecuniary limitation into the Fatal Accidents Act by interpreting "damages" to mean "pecuniary damages" or "pecuniary loss", and have restricted recovery for wrongful death to the pecuniary or economic loss suffered by eligible survivors of the deceased. By substituting "pecuniary loss" in the new legislation for "damages" in the old, the Legislature expressly placed recovery, insofar as s. 60(1) of the Family Law Reform Act is concerned, on the same monetary basis that existed under the Fatal Accidents Act and effected no change one way or the other in the measure of damages.

(Emphasis added)

[26] As I indicated, there is no relevant distinction between s. 60(1) of the Family Law Reform Act and s. 61(1) of the Family Law Act.

[27] Admittedly, in Mason, Robins J.A. was principally concerned with the proper interpretation of s. 60(2)(d) (now s. 61(2)(e)) and whether that provision allowed for awarding damages for lost guidance, care and companionship on a non- pecuniary basis. The scope of pecuniary damages under s. 60(1) was not expressly before the court. As well, Robins J.A. was careful to state that pecuniary loss "may" consist of the support, services or contributions which the claimant might reasonably have expected to receive from the deceased. Nevertheless, I adopt his statement the new provision constitutes basically a restatement of the law as it stood before the Family Law Reform Act. In my view, the legislature did not intend a wholesale revision of the basis for recovery under the new statutory equivalent to s. 2 of the Fatal Accidents Act.

[28] In this regard I attach some significance to the fact that if the respondents are correct and if the family member could recover any pecuniary loss associated with the death or injury, cls. (a) to (d) of the present s. 61(2) would have been unnecessary and mere surplusage. It seems to me that the legislature has provided for recovery of those pecuniary losses in s. 61(2) such as nursing and housekeeping services precisely because they would not have been recoverable under s. 61(1), or the predecessor legislation, not being an actual or expected loss of the pecuniary benefits arising from the relationship that would be derived from the continuance of the life.

[29] While there are no Supreme Court of Canada decisions precisely dealing with this issue, obiter statements in two judgments from that court interpreting s. 2 of the Fatal Accidents Act, which as I have noted is worded similarly to s. 61(1) of the Family Law Act, support the view that recovery is limited to the actual or expected loss of the pecuniary benefits arising from the relationship which would be derived from the continuance of the life.

[30] In St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 7 (SCC), 11 S.C.R. 422, Ritchie C.J. referred to a number of English and American authorities that were all to the effect that damages were limited to "prospective advantages of a pecuniary nature which have been cut off by the premature death of the person". [See Note 3 at end of document] The legislation was, in other words, intended to "indemnify" the family members for the loss of the parent or child as the case may be: see p. 433.

[31] To a similar effect is the decision of Ritchie J. in Vana v. Tosta, 1967 21 (SCC), [1968] S.C.R. 71 at p. 87, 66 D.L.R. (2d) 97 where he adopted a summary of the law by Ruttan J. in DeBrincat v. Mitchell (1958), 1958 483 (BC SC), 26 W.W.R. 634 (B.C.S.C.) at p. 635:

The guiding principle as contained in the judgment of Chief Justice Ritchie in the Supreme Court decision of Lett v. St. Lawrence and Ottawa Elec. Ry. (1885), 1885 7 (SCC), 11 S.C.R. 422, keeps re-appearing in extensive quotation in many of the cases that have been decided in the succeeding 70 years. Pecuniary loss is the loss of some benefit or advantage which is capable of being estimated in terms of money, as distinct from mere sentimental loss. Here we must value the loss of the services of a young wife to a young husband, their respective ages being 30 and 32 at the time of the accident; and the loss of a mother of two small children, aged three and five years.

(Emphasis added)

[32] Recent decisions in the trial courts, in addition to Frawley v. Asselstine, [See Note 4 at end of document] support this limitation on the recovery. In Kemppainen (Litigation guardian of) v. Winter, supra, at p. 764, Hockin J. held that loss due to nervous shock could not be recovered:

In the result, in the case of a fatal accident, members of the deceased's immediate family pursuant to the Family Law Act, R.S.O. 1990, c. F.3, are permitted by s. 266 of the Act to bring action in respect of their claims for loss of guidance, care and companionship and for their pecuniary loss. What they may not do, in my view, is sue under the Family Law Act for their "nervous shock" claims since such claims plainly do not fall within the purview of the Family Law Act. Their nervous shock claims are not derivative claims but are claims which must stand alone.

[33] In a number of cases, the British Columbia Court of Appeal has similarly held that pecuniary losses occasioned by the death of the family member are not recoverable under the comparable legislation unless special provision is made, as in s. 61(2) of our Act, for matters such as funeral expenses. For example, in Cogar Estate v. Central Mountain Air Services Ltd. (1992), 1992 1611 (BC CA), 72 B.C.L.R. (2d) 292 (C.A.) at p. 312 the court held that no amount could be recovered for the expenses incurred by the family in attempting to find the deceased's body:

The loss that section contemplates is the loss to the dependants of the deceased by reason of his financial contribution to his or her dependants being lost as a result of his or her death.

[34] Finally, there would be no basis for limiting the claim to pecuniary loss from nervous shock. Any pecuniary loss traceable to the fatal accident would be recoverable, even if nervous shock were not made out. This could include any loss of income from the normal (or even abnormal) bereavement process. This case is an example. The trial judge subsequently dismissed the nervous shock claim in part because he found Dana Macartney's loss was the result of a "profound grief reaction" rather than nervous shock. Similarly, with respect to Cecil Macartney, the trial judge found that he was "sad, sorrowful and depressed", but again not from nervous shock. In my view, s. 61 was not intended to encompass such claims. [See Note 5 at end of document]

[35] To conclude, in my view, the respondents cannot bring their claim for nervous shock under s. 61(1) of the Family Law Act.

DISPOSITION

[36] Accordingly, I would allow the appeal and answer the three questions as follows:

1. It is unnecessary to answer this question.

2. Loss of income whether from nervous shock or otherwise are not pecuniary losses that may be recovered under s. 61(1) of the Family Law Act.

3. The plaintiffs' claims for nervous shock are barred by s. 266 of the Insurance Act.

[37] LASKIN J.A.: -- In July 1990, Jeremy Macartney was killed in a car accident near the house where he lived with his parents, the respondents, Dana and Cecil Macartney. He was 19 years old. Mr. and Mrs. Macartney sued for damages for nervous shock and for their loss of income resulting from their son's death under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"). On a motion under Rule 21, Yates J. decided that Mr. and Mrs. Macartney could proceed to trial on both claims. The defendant David Warner appealed the decision.

[38] My colleague, Rosenberg J.A., would allow the appeal. He concludes that Mr. and Mrs. Macartney's claim for damages for nervous shock is barred by s. 266 of the Insurance Act, R.S.O. 1990, c. I.8 and that their loss of income cannot be recovered under s. 61(1) of the FLA. I agree with my colleague that s. 266 of the Insurance Act precludes the nervous shock claim. However, I disagree with my colleague on his interpretation of s. 61 of the FLA. In my opinion, Mr. and Mrs. Macartney may maintain an action for their loss of income resulting from their son's death under s. 61(1) of the FLA.

[39] As Rosenberg J.A. points out, despite Warner's appeal on the Rule 21 motion, the action was tried. Yates J. dismissed the claim for damages for nervous shock, and in an apparent reversal of his earlier ruling, held that Mr. and Mrs. Macartney could not sue for their loss of income under s. 61 of the FLA.

[40] Because of my conclusion on s. 61, I would set aside the trial judgment and order a new trial on the loss of income claim. A new trial is needed because the trial judge did not make the necessary factual findings to decide Mr. and Mrs. Macartney's claim. In my opinion, Mr. and Mrs. Macartney need not prove that their loss of income was caused by nervous shock to succeed in their claim under s. 61(1). They need only prove that their income loss is a pecuniary loss resulting from Jeremy's death.

Discussion

[41] At common law, a living plaintiff could not sue a living defendant for the death of a third person, even when the death caused financial loss. This common law rule, first set out in England in 1808 in Baker v. Bolton, 170 E.R. 1033, was accepted and followed in Canada. However, as Robins J.A. wrote in Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27 at p. 30, 139 D.L.R. (3d) 104 (C.A.): ". . . as society grew more industrialized and the number of fatal accident increased, the harshness of the notion that the family of a person tortiously killed was entirely without remedy became repugnant."

[42] In 1846, England modified the common law rule by statute, passing Lord Campbell's Act (U.K.), 1846, c. 93 (repealed by 1976 (U.K.), c. 30) which became the model for Ontario's Fatal Accidents Act and other wrongful death statutes. The Fatal Accidents Act, passed in 1847, permitted the husband, wife, parent and child of the deceased to sue for damages the person whose tortious conduct caused the death. The statutory cause of action was found in s. 2 of the Act:

2. Where the death of a person has been caused by such wrongful act, neglect or default, as, if death had not ensued, would have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances amounting in law to culpable homicide.

[43] Judicial interpretation of s. 2 restricted its scope in two ways: first, damages were awarded only for pecuniary loss; [See Note 6 at end of document] and second, the pecuniary loss itself was restricted to the pecuniary benefits the surviving family members might reasonably have expected to receive from the deceased had he or she not been killed. Although an income loss is a pecuniary loss, [See Note 7 at end of document] this second restriction precluded recovery for the kind of loss of income claim now asserted by Mr. and Mrs. Macartney. Whether this restriction applies to a claim for pecuniary loss under s. 61(1) of the FLA is the issue on which Rosenberg J.A. and I disagree.

[44] The Ontario legislature repealed the Fatal Accidents Act in 1978. In its place, the legislature enacted s. 60 of the Family Law Reform Act ("FLRA"), and then s. 61 of the FLA. For the purpose of this appeal, the two provisions are not materially different. Section 61 of the FLA provides:

61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for the loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

[45] Rosenberg J.A. concludes that s. 61(1) is "basically a restatement of the law" under s. 2 of the Fatal Accidents Act. Therefore, in his view, "recovery is limited to the actual or expected loss of the pecuniary benefits arising from the relationship which would be derived from the continuance of the life". Except for the judgment of Rosenberg J. in Vaiman v. Yates (1987), 1987 4345 (ON SC), 60 O.R. (2d) 696, 41 D.L.R. (4th) 186 (H.C.J.), leave to appeal to Div. Ct. refused by Sutherland J. (1987), 1987 4245 (ON SC), 63 O.R. (2d) 211 (H.C.J.), trial decisions in this province and decisions elsewhere in Canada under comparable legislation support my colleague's interpretation. In my view, it is time to reconsider these decisions.

[46] The ordinary meaning of the words in s. 61(1) would permit recovery for the loss claimed by Mr. and Mrs. Macartney. Their income loss is a pecuniary loss. Each claims to have suffered profoundly because of Jeremy's death, and as a result, Mrs. Macartney was incapable of working, and Mr. Macartney was capable of working only in a less stressful, lower-paying job. If Mr. and Mrs. Macartney prove the necessary facts, they can establish a "pecuniary loss resulting from the . . . death" of their son. Nothing in the wording of s. 61(1) restricts Mr. and Mrs. Macartney's recovery for pecuniary loss to the pecuniary benefits that they would have received from their son had he not been killed.

[47] A basic principle of statutory interpretation is that the ordinary meaning of a legislative provision should prevail absent a good reason to reject it. [See Note 8 at end of docuent] The ordinary meaning is presumed to be the intended or most appropriate meaning unless the context or the purpose and scheme of the legislation, or the consequences of adopting the ordinary meaning suggest otherwise. Professor Ruth Sullivan, who edited the third edition of Driedger on the Construction of Statutes, sets out the presumption in favour of the ordinary meaning at p. 7:

(1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails.

(2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning.

(3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing.

[48] Three main reasons are put forward for departing from the ordinary meaning of s. 61(1) of the FLA and restricting the scope of pecuniary loss: the wording of s. 61 shows that the legislature intended largely a restatement of the law under the Fatal Accidents Act; the judgment of this court in Mason v. Peters; and permitting Mr. and Mrs. Macartney's claim for their income loss would open the door too wide for claims under s. 61(1). In my view, none of these reasons supports restricting the ordinary meaning of s. 61(1) of the FLA. I will address each of them.

[49] Rosenberg J.A. adopts the statement in Mason v. Peters that s. 60(1) of the FLRA (and now s. 61(1) of the FLA) "constitutes, basically, a restatement of the law as it stood before the new Act was passed". In my colleague's view, "the legislature did not intend a wholesale revision of the basis for recovery under the new statutory equivalent of s. 2 of the Fatal Accidents Act". Determining what the legislature did intend in enacting s. 61(1) is not an easy task. But it is a task best accomplished by considering the overall purpose of the statute, the wording of s. 61(1) itself, the relationship between s. 61(1) and s. 61(2) and the legislative history of s. 61; and then determining whether any of these indicators of legislative intent justify departing from the ordinary meaning of s. 61(1).

[50] I begin with the overall purpose of the FLRA (and the FLA). In my view, restricting the scope of pecuniary loss is inconsistent with the purpose of the Act. The FLRA was path- breaking legislation when enacted in our province in 1978. Other provisions of the Act, dealing with support obligations, the division of family property, the matrimonial home, and domestic contracts radically altered family law in Ontario. The preamble recognized the Act's important purpose of strengthening family relations by reciting: "whereas it is desirable to encourage and strengthen the role of the family . . .". Moreover, the scheme of the Act as a whole reflected the legislature's intention to provide much greater protection to family members in the case of family break-up or family loss than previously available. Why then, I ask rhetorically, when we come to interpret one section of this modern, progressive legislation, do we ignore the Act's purpose and instead harken ba ck to judicially imposed restrictions on another statute passed over 150 years ago.

[51] Indeed, s. 60(1) itself (and now s. 61(1) of the FLA) did not "basically" codify the existing law. It dramatically expanded recovery. For the first time, family members could sue for compensation for injury to their relatives. In doing so, as Linden J. observed in Thornborrow v. MacKinnon (1981), 1981 1945 (ON SC), 32 O.R. (2d) 740 at pp. 743-44, 123 D.L.R. (3d) 124 (H.C.J.), "the Legislature of Ontario meant to rectify that dreadful page of our legal history in the new Family Law Reform Act, 1978. Subsection (1) of the Act was a codification of the existing law to an extent but it also expanded it." The new language of the FLRA, the new philosophy that underpinned that language, reflected not an intent to march backward in time, not an intent to restrict compensation by previous authority, but an intent to reform the law, an intent to develop new principles of compensation founded on the words of the statute. In my view, this court should be very reluctant to s addle this new legislation with an interpretation applied to a statute long outdated. I agree with Sutherland J. who, in denying leave to appeal in Vaiman v. Yates, said (at p. 220) that courts should not "read into the differently worded provision of the Family Law Act, 1986 a restriction developed by the courts with respect to Lord Campbell's Act a long time ago when a quite different conception of family life and spousal roles was the norm and model."

[52] What then of the immediate context of s. 61(1), or the relationship between s-s. (1) and s-s. (2) of s. 61? Rosenberg J.A. relies on s. 61(2) for his restrictive interpretation of s. 61(1). In his view, if a family member could recover any pecuniary loss resulting from another member's death or injury, "cls. (a) to (d) of the present s. 61(2) would have been unnecessary and mere surplusage." I disagree. I acknowledge, however, that the relationship between s. 61(1) and (2) is an important indicator of legislative intent. But I do not read s. 61(2) as limiting the scope of s. 61(1).

[53] In my view, there are three reasons why s. 61(2) does not restrict the scope of pecuniary loss in s. 61(1). First, the ordering of s-ss. (1) and (2) is significant. The general category "pecuniary loss" in s. 61(1) precedes the list of specific kinds of awards in s. 61(2). Because this general or broad category precedes rather than follows the list of specific examples, I infer that the legislature did not intend to restrict the general category. In other words, when the general precedes the specific, the limited class or ejusdem generis rule of statutory interpretation ordinarily does not apply. [See Note 9 at end of document]

[54] Second, the specific examples in s. 61(2) are introduced by the words "may include". The words "may include" show that the list of examples is not intended to be an exhaustive definition of the general category "pecuniary loss". [See Note 10 at end of document]

[55] Third, providing specific examples introduced by the words "may include" can have only two possible purposes, neither of which restricts the general category. The legislative drafter may have used specific examples either to remove any ambiguity whether these examples are included in the general category or to evidence that the general category extends to matters otherwise thought to fall outside it. Both purposes seem to be present in s. 61(2). Clauses (a) to (d) (including "funeral expenses", added to s. 61(2) when the FLA replaced the FLRA), [See Note 11 at end of document] are examples of awards of pecuniary loss, likely specifically provided for in s. 61 to ensure "compensation for certain items which were either confusing or not compensated under the case law". [See Note 12 at end of document]

[56] Indeed, cl. (d) provides a reasonable allowance for loss of income when, for example, a claimant instead of going to his or her usual job, chooses to provide nursing or housekeeping services to an injured family member. This kind of income loss may not obviously have been compensable without specifically providing for it. But cl. (d) does not preclude a straightforward claim for loss of income because of a family member's injury or death, under s. 61(1).

[57] Clause (e) permitting an award for loss of guidance, care and companionship was specifically provided for because it contains elements of non-pecuniary loss. [See Note 13 at end of document] Full compensation for the loss of guidance, care and companionship could not be awarded under the rubric of pecuniary loss. Thus, cl. (e) extends the usual or ordinary meaning of pecuniary loss. But the important point is that whether included to remove ambiguity or to extend the meaning of the general category "pecuniary loss", the specific examples in s. 61(2) were not intended to limit the scope of s. 61(1).

[58] My discussion about the relationship between s. 61(1) and (2) and the meaning of "may include" relies on the reasons of La Forest J. in National Bank of Greece v. Katsikonouris, supra, at pp. 1039-42 S.C.R., pp. 202-04 D.L.R., dealing with the interpretation of a mortgage clause in an insurance policy providing coverage for the mortgagee's interest "notwithstanding any act, neglect, omission or misrepresentation attributable to the mortgagor . . . including . . .". La Forest J. first discussed the significance of a list of examples following, rather than preceding, a general category, at pp. 1040-41 S.C.R., p. 203 D.L.R.:

Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it. But it would be illogical to proceed in the same manner when a general term precedes an enumeration of specific examples. In this situation, it is logical to infer that the purpose of providing specific examples from within a broad general category is to remove any ambiguity as to whether those examples are in fact included in the category. It would defeat the intention of the person drafting the document if one were to view the specific illustrations as an exhaustive definition of the larger category of which they form a part.

[59] He then discussed the meaning of the word "include", when it precedes a list of examples, at p. 1041 S.C.R., p. 203 D.L.R.:

Moreover, in this instance, the very language used to introduce the list of omissions and misrepresentations confirms that it would be erroneous to view them as exhaustive. In the English version of the clause, the term "including" precedes the list of examples of omissions and misrepresentations . . . . I note that the concise Oxford Dictionary 7th ed. (1982), defines "include" as "comprise or embrace (thing, etc.) as part of a whole" . . . . This meaning finds confirmation in legal lexicons as well: the entries under "include" and "including" in Stroud's Judicial Dictionary 5th ed. (1986), vol. 3, to take but one example, again make it clear that these words are terms of extension, designed to enlarge the meaning of preceding words, and, not, to limit them.

As I have noted, the natural inference is that the drafter will provide a specific illustration of a subset of a given category of things in order to make it clear that that category extends to things that might otherwise be expected to fall outside it. As I see it, it is precisely this reasoning which explains the reference to specific omissions and misrepresentations in the standard mortgage clause.

Thus, I conclude that s. 61(2) does not provide a reason to depart from the ordinary meaning of s. 61(1) or to restrict its scope.

[60] In his concurring reasons, my colleague Morden J.A. has reviewed the legislative history of s. 61 and its predecessor, s. 60 of the FLRA. The FLRA was based in large part on the 1969 Ontario Law Reform Commission Report on Family Law. In dealing with what became s. 60 of the FLRA, the Commission Report was mostly concerned to allow for recovery for pecuniary loss when a family member was injured as well as when a family member was killed. The Report did not discuss or make any recommendation on the scope of pecuniary loss. Indeed, the Report noted "that it will be necessary, at some future date, to undertake a full study of compensation problems with respect to family losses arising out of both fatal and non-fatal injuries." [See Note 14 at end of document] Therefore, the legislative history of s. 61 of the FLA does not provide a justification for departing from the ordinary meaning of s. 61(1).

[61] I now come to Mason v. Peters. That case dealt with a claim under s. 60(2)(d) of the FLRA, so, strictly speaking, it did not decide the scope of recovery for pecuniary loss under s. 60(1). More important, to suggest that Mason v. Peters stands in the way of my interpretation of s. 61(1) of the FLA is to misread what that case is about. The statement by Robins J.A. that s. 60(1) of the FLRA "constitutes, basically, a restatement of the law as it stood before the new Act was passed" has to be read in its context. Robins J.A. was simply observing that just as the courts read a pecuniary restriction into s. 2 of the Fatal Accidents Act, by interpreting "damages" to mean "pecuniary damages", so too had the Ontario Legislature expressly limited recovery under s. 60(1) to pecuniary loss. Thus, in the same passage of his reasons, Robins J.A. said (at p. 37):

By substituting "pecuniary loss" in the new legislation for "damages" in the old, the Legislature expressly placed recovery, insofar as s. 60(1) of the Family Law Reform Act is concerned, on the same monetary basis that existed under the Fatal Accidents Act and effected no change one way or the other in the measure of damages.

[62] But this passage says nothing about the scope of pecuniary loss. Indeed Robins J.A. commented on the scope of pecuniary loss later in his reasons in these words, which I adopt (at p. 38): "Clearly, recovery, may be had under s. 60(1) for losses of every kind and character suffered as a result of the death [or injury], subject to only one restriction -- the losses must be pecuniary." Giving effect to these words would allow Mr. and Mrs. Macartney to maintain their claim for their loss of income resulting from their son's death.

[63] Moreover, the decision in Mason v. Peters itself is the antithesis of a restrictive view of s. 60 of the FLRA. In permitting the claimants to recover as part of their damages for the loss of guidance, care and companionship under s. 60(2) (d), the "imponderable elements of loss" which "are essentially non-pecuniary in character", this court broke away from the restrictive awards of the past, awards that were "wholly incommensurate with the true loss sustained by a child's death", and in their place, significantly increased the amount of compensation. Thus, I find support for my interpretation of s. 61(1) of the FLA both in the words and the philosophy of Mason v. Peters.

[64] Finally, my colleague expresses concern about the consequences of my interpretation of s. 61(1). In his view, my interpretation would open the door too wide, and could, for example, compensate a loss of income because of the normal bereavement process. I do not share this concern. In each case, the court will have to apply the words of the statute and ask whether this is a "pecuniary loss resulting from the injury or death." These words may well raise difficult questions of causation. Undoubtedly, the courts will have to develop a set of principles to resolve these causation questions and to govern compensation under s. 61(1). I observe, however, that trial decisions have already held that a claim under s. 61 does not depend on questions of foreseeability or remoteness, questions that are relevant to a nervous shock claim. [See Note 15 at end of document] I observe as well that the Saskatchewan Fatal Accidents Act, R.S.S. 1978, c. F-11 expressly permits family members to recover for their income loss in causal terms similar to s. 61(1) of the Ontario statute. Section 4(2)(d) of the Saskatchewan Act provides:

4(2) In an action brought under this Act damages may also be awarded in respect of:

(d) loss of earnings for the period in which the persons by whom or for whose benefit the action is brought are unable to work because of the death; and

if those expenses have been incurred by any of the parties for whom and for whose benefit the action is brought.

As under the Saskatchewan statute, so too under the FLA, courts will have to decide when a plaintiff has established the necessary causal relationship between the loss claimed and a family member's injury or death.

[65] Thus, I am not persuaded that the wording of s. 61 of the FLA or its legislative history, or the purpose and scheme of the Act as a whole provide any justification for departing from the ordinary meaning of s. 61(1). Nor am I persuaded that the scope of pecuniary loss should be restricted by case law decided in a different era and under a different statute. And I do not see any policy justification for restricting pecuniary loss. Limiting the scope of pecuniary loss in the face of the words of s. 61(1) is contrary to our contemporary notions of justice.

[66] For these reasons, I would permit Mr. and Mrs. Macartney to maintain their claim for loss of income resulting from their son's death. Therefore, I would dismiss the appeal from the part of Yates J.'s pre-trial ruling permitting the FLA claim to proceed to trial, and I would allow the appeal from the part of his ruling permitting the claim under s. 266 of the Insurance Act to proceed to trial. Because success is divided, I would order no costs either of the motion before Yates J. or of the appeal.

[67] MORDEN J.A. (concurring): -- I agree with Rosenberg J.A.'s decision on the application of s. 266 of the Insurance Act, R.S.O. 1990, c. I.8 to the nervous shock claim.

[68] The persuasive reasons of Rosenberg J.A. and of Laskin J.A. each reflect a reasonable interpretation of s. 61(1) and \(2\) of the Family Law Act and, accordingly, indicate that the question whether the Macartneys' claim for loss of income is allowable under s. 61(1) of the Act is a difficult one. In approaching the question, I have taken into account the legislative history and evolution of s. 61.

[69] Should s. 61(1) be interpreted as providing for a claim for all kinds of pecuniary loss resulting from the death? Its material wording is based on that contained in its predecessor, s. 60 of the Family Law Reform Act, 1978, S.O. 1978, c. 2 (which became s. 60 in the Family Law Reform Act, R.S.O. 1980, c. 152) which, in turn, replaced ss. 2 and 3(1) of the Fatal Accidents Act, R.S.O. 1970, c. 164.

[70] The Fatal Accidents Act was loosely expressed. Its material wording on the scope of the remedy it conferred was ". . . the person who would have been liable, if death had not ensued, is liable to an action for damages . . ." (s. 2) and "in every such action such damages may be awarded as are proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought . . ." (s. 3(1)). As my colleagues have said, the courts have interpreted these provisions in such a way as to restrict recovery to "loss of the pecuniary benefits arising from the relationship which would be derived from the continuance of the life".

[71] While the wording of s. 60(1) of the Family Law Reform Act ("pecuniary loss resulting from the injury or death") contains no restriction on the kind of pecuniary loss covered (apart from the express limitation to pecuniary loss), I am not sure that it is any clearer on this point than the predecessor legislation ("liable . . . for damages" and "damages . . . proportioned to the injury resulting from the death"). It appears, therefore, that s. 60(1), in itself, did not clearly signal an intention to change the law. Other indications of legislative intent should be considered.

[72] When the examination of the question takes into account the legislative history of the legislation, it will be seen that s. 60 was based on the Ontario Law Reform Commission, Report on Family Law, Part I (1969). In Chapter X of this report, the Commission dealt with "situations in which a member of a family should be compensated for a loss he suffers as a result of injury inflicted on another family member by a third party" (p. 106). With respect to this the Commission said that "[t]here are two main questions. What losses should be compensable and who should be entitled to compensation?" (p. 106). One of the issues referred to in the report under this subject was "[t]o what extent are the principles of compensation which would be appropriate with respect to an injury not causing death to a family member, appropriate to an injury causing death?" (p. 107). Following this the Commission said:

The last question involves a study of The Fatal Accidents Act and the case law under it. That statute enables a single action for pecuniary loss to be brought on behalf of or by certain members of a family (as specified by the statute) where a family member is killed by the wrongful conduct of a third person. Except where there is good reason, such as the avoidance of double recovery, the same general principles of compensation should be applicable whether the injury causes death or not.

It will be necessary for the Commission to undertake at some future time a general study of family losses arising out of both injury or death to a family member as a result of the unlawful conduct of a third person. For the time being, however, the Commission believes that the law relating to injuries not causing death should be similar in principle with the law under The Fatal Accidents Act. This would avoid the confusion that would result from having two different schemes.

So far as the Commission is aware the fatal accidents legislation, in general, is working well. It would be a considerable step forward to provide for compensation for non-fatal injuries on a similar basis to that awarded under The Fatal Accidents Act.

[73] Bill 59, An Act to Reform the Law respecting Property Rights and Support Obligations between Married Persons and in other Family Relationships, 1st Sess., 32st Leg., Ontario, 1977, which became the Family Law Reform Act, contained, in its first reading, the following explanatory note with respect to ss. 60 to 64:

SECTIONS 60 to 64. This Part replaces The Fatal Accidents Act and extends that Act to cover non-fatal injuries, as recommended by the Ontario Law Reform Commission in Part I of its Report on Family Law. It also replaces the actions for loss of consortium and loss of services of a child (see section 69).

With the abolition of the husband's property in the services of his wife and the parent's property in the services of a child, and the creation of a new, qualified obligation of support under this Act, a new basis is created on which family members can recover expenses they incur for the benefit of an injured person. This section will allow them to recover the same kind of pecuniary loss as can now be recovered under The Fatal Accidents Act.

Section 60 extends the right to claim to a broader class of related person than under The Fatal Accidents Act. Subsection 2 codifies the case law under The Fatal Accidents Act.

The following sections are based on the provisions of that Act and require all claimants to join in one action. Insurance payments are not to be considered in assessing damages. The $800 limit on funeral expenses is removed to allow recovery of reasonable funeral expenses actually incurred.

[74] I note, at this point, that the s-s. (2) of s. 60, referred to in this note, is not the one that was in it when the Bill was finally enacted -- which I shall deal with shortly. The s-s. (2) in the note became s-s. (3) in the Act and it provided that "the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed". This was a codification of the case law which applied to the Fatal Accidents Act: see Littley v. Brooks & C.N.R., 1932 4 (SCC), [1932] S.C.R. 462 and Wiksech v. General News Co., 1948 63 (ON CA), [1948] O.R. 105, [1948] 1 D.L.R. 753 (C.A.).

[75] Bill 59 was altered in the course of its passage through the legislature. The version of it reported as amended in the Committee of the Whole House included a new s-s. (2) which read:

60(2) The damages recoverable in a claim under subsection 1 may include,

(a) actual out-of-pocket expenses reasonably incurred for the benefit of the injured person;

(b) a reasonable allowance for travel expenses actually incurred in visiting the injured person during his treatment or recovery;

(c) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the injured person, a reasonable allowance for loss of income or the value of the services; and

(d) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the injured person if the injury had not occurred.

[76] The Attorney General explained the amendment to the Committee in the following way:

Hopefully, the amendment is clear, to give the courts guidance as to the kinds of damages recoverable in a new action for a non-fatal injury. And also I want to emphasize that the list is not exclusive.

[77] See Legislature of Ontario, Debates (March 16, 1978) at p. 767.

[78] Based on the foregoing, it could reasonably be said that the view, at that time, on the law respecting the scope of the remedy under the Fatal Accidents Act was that it did not contain any "mischief" to be remedied. In fact, in so far as the awareness of the Ontario Law Reform Commission was concerned, "fatal accidents legislation, in general, is working well". The Commission believed that the new law "should be similar in principle with the law under the Fatal Accidents Act." The changes in the law that were clearly made were (1), most importantly, to extend the remedy to cases of non-fatal accidents and (2) to expand the class of relatives who could claim.

[79] In the course of the legislative evolution affecting the Act (treating judicial interpretation as part of the statute's evolution), Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104 (C.A.), discussed in the reasons of my colleagues, held that s. 60(2) was not confined to cases of non-fatal injuries (as seems to have been suggested by the Attorney General when it was added to Bill 59) and, also, that the damages provided for in s. 60(2)(d) relating to loss of care, guidance and companionship were not confined to pecuniary damages. At this stage in the evolution of s. 61, it is clear that s. 60(2) covered both non-fatal and fatal cases.

[80] The next and final step, as far as we are concerned, in the statutory evolution, was the enactment of the Family Law Act, 1986, S.O. 1986, c. 4. Section 61 of this Act, set forth in full in Rosenberg J.A.'s reasons, follows the same general format as s. 60 in the Family Law Reform Act but it contained changes in s. 61(2) expressly stating that its clauses (depending on the facts of a case) were applicable to fatal and non-fatal accidents. Accordingly, it is clear in the Family Law Act, 1986 that the legislature intended to adopt the Mason v. Peters holding that s. 60(2) was also applicable to cases of fatal accidents.

[81] The task now, in light of the foregoing, is to make as much sense as possible out of the legislation. The "court's own real and responsible business [is to try] to make sense out of the legislation, so far as text and context may allow": Llewellyn, The Common Law Tradition -- Deciding Appeals (1960) at pp. 528-29. The legislative history and evolution, as well as the text, strongly support the view that the same kinds of losses should be recoverable as a result of fatal and non-fatal accidents -- depending, of course, on the facts of the particular case. Accordingly, it is preferable to treat the clauses in s. 61(2) (apart from s. 61(2)(e): Mason v. Peters) as being examples of some of the kinds of loss which are covered by s. 61(1) and not as extensions of the scope of s. 61(1): Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at p. 559 (setting forth the provision in the Drafting Conventions of the Uniform Law Conference of Canada on the use of "includes"). The "may" before "include" emphasizes that the items listed in s. 61(2) are not exhaustive but, rather, are illustrative of the general reach of s. 61(1).

[82] Accordingly, I would not confine claims for loss of income only to those specifically provided for in s. 61(2)(d). I think our responsibility should be to read the legislation as providing for a coherent and internally consistent scheme of compensation.

[83] No doubt, this interpretation of the legislation may give rise to issues relating to the extent of the pecuniary loss recoverable and courts will be required to wrestle on a case by case basis with difficult questions of causation, particularly with where the chain of causation ends, in applying the words "loss resulting from the injury or death".

[84] For the foregoing reasons, I agree with the disposition of this appeal proposed by Laskin J.A.

Appeal allowed in part.

Notes

Note 1: At the same time, the court also heard a third appeal arising out of a separate motor vehicle accident in 1987 involving Dana Macartney. The reasons in that appeal were previously released.

Note 2: The decision of O'Leary J. is in accord with earlier decisions of the General Division in Kemppainen (Litigation guardian of) v. Winter (1997), 1997 12307 (ON SC), 143 D.L.R. (4th) 760 (Hockin J.) and Villeneuve v. Carson (September 6, 1996, unreported, MacKinnon J.).

Note 3: Referring at p. 429 to Tilley v. The Hudson River Railroad Company, 24 N.Y. 474.

Note 4: I have not overlooked the earlier decision of Rosenberg J. in Vaiman v. Yates (1987), 1987 4345 (ON SC), 60 O.R. (2d) 696, 41 D.L.R. (4th) 186 (H.C.J.). In that case, the plaintiff sought to recover damages for loss of income from a heart attack she suffered from the strain of having to care for her husband after he was involved in two motor vehicle accidents. The defendant was the driver allegedly at fault in the second of the two accidents. Rosenberg J. heard an appeal from the Master allowing the plaintiff to deliver an amended statement of claim to include the loss of income under the Family Law Act claim. Rosenberg J. distinguished Mason v. Peters and dismissed the appeal. A motion for leave to appeal to the Divisional Court was dismissed by Sutherland J. (1987), 1987 4245 (ON SC), 63 O.R. (2d) 211 (H.C.J.). In my view, Rosenberg J.'s view in the later decision in Frawley is to be preferred.

Note 5: To the same effect see, Montgomery v. Murphy (1982), 1982 3128 (ON SC), 37 O.R. (2d) 631 at p. 637, 136 D.L.R. (3d) 525 (H.C.J.), where Galligan J. held that s. 60 of the Family Law Reform Act does not deal with personal injuries suffered by the injured person himself; in that case the plaintiff's future loss of income was due to depression from witnessing the death of his wife.

Note 6: Blake v. Midland Ry. Co. (1852), 18 Q.B. 93.

Note 7: In Vana v. Tosta, 1967 21 (SCC), [1968] S.C.R. 71 at p. 87, 66 D.L.R. (2d) 97 the Supreme Court defined a pecuniary loss as "the loss of some benefit or advantage which is capable of being estimated in terms of money, as distinct from mere sentimental loss," per Ritchie J. referring to the decision of the Supreme Court of Canada in St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 7 (SCC), 11 S.C.R. 422 at p. 433.

Note 8: See Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994).

Note 9: National Bank of Greece (Canada) v. Katsikonouris, 1990 92 (SCC), [1990] 2 S.C.R. 1029 at pp. 1039-42, 74 D.L.R. (4th) 197 at pp. 202-04, per LaForest J.

Note 10: See Driedger, supra, at pp. 208-09, 559.

Note 11: Under the FLRA, an award for reasonable funeral expenses was provided for separately in s. 64(2).

Note 12: See Thornborrow, per Linden J., at p. 744.

Note 13: Mason v. Peters.

Note 14: O.L.R.C., Report on Family Law, Part I Torts (1969), at p. 109.

Note 15: See Vaiman v. Yates and Miller Estate v. Bowness (1986), 1987 4215 (ON SC), 58 O.R. (2d) 100, 35 D.L.R. (4th) 264 (H.C.J.), affirmed (1988), 1988 4620 (ON CA), 66 O.R. (2d) 750, 55 D.L.R. (4th) 286 (C.A.).