2008 BCSC 1777 McDonald v. Queen of the North (Ship)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*McDonald v. Queen of the North (Ship),*
	2008 BCSC 1777

Date: 20081224
Docket: S063067
Registry: Vancouver

ADMIRALTY ACTION in Rem against the Ship “Queen of the North”
and in Personam

Between:

Sharan and Glenn McDonald, Executors of the Estate of Gerald Foisy, on behalf of
Brittni Lee Foisy and Morgan Taylor Foisy, Infants Suing by their Guardian Ad Litem
Lana Foisy

Plaintiffs

And

The Owners and all Others Interested in the Ship, “Queen of the North”,
British Columbia Ferry Services Inc., Karl Lilgert and Karen Bricker

Defendants

___________________________________________________________________

Docket: S074494
Registry: Vancouver

ADMIRALTY ACTION in Rem against the Ship “Queen of the North”
and in Personam

Between:

Brandon Rosette and Brent Rosette, an Infant by his Litigation Guardian,
The Public Guardian and Trustee of British Columbia, as Dependants of
Shirley Rosette, Deceased and Gerald Foisy, Deceased

Plaintiffs

And

The Owners and all Others Interested in the Ship, “Queen of the North”,
British Columbia Ferry Services Inc., Colin Henthorne, Karl Lilgert and Karen Bricker

Defendants

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for the Defendant, B.C. Ferry Services Inc.	W. Gary Wharton and Andrew Lau
Counsel for the Defendant Bricker	Christopher J. Giaschi
Counsel for the Defendant Lilgert	Jack D.G. Buchan
Counsel for the Defendant Henthorne	Nils E. Daugulis
Counsel for the Plaintiffs in Action No. S063067	Marilyn E. Sandford
Counsel for the Plaintiffs in Action No. S074494	Irina Kordic
Date and Place of Hearing:	October 31, 2008
	Vancouver, B.C.

I. INTRODUCTION

[1] The question that I am asked to determine in this application is whether, as a matter of law, the plaintiffs in a wrongful death action brought under the Marine Liability Act, S.C. 2001, c. 6 (the “MLA”) are precluded from seeking punitive and aggravated damages on behalf of dependants of the deceased.

II. BACKGROUND

[2] Mr. Gerald Foisy and Ms. Shirley Rosette were two of the passengers who were on board the ferry “Queen of the North” when, on March 22, 2006, she ran aground on Gil Island in Wright Sound approximately 135 kilometres south of Prince Rupert, B.C. and subsequently sank. Tragically, Mr. Foisy and Ms. Rosette were not saved and their bodies have never been found. They have been presumed to be dead pursuant to the Survivorship and Presumption of Death Act, R.S.B.C. 1996, c. 444.

[3] In these actions the plaintiffs claim damages on behalf of the dependants of Mr. Foisy and Ms. Rosette pursuant to the MLA. The defendants are British Columbia Ferry Services Inc. (“BCFS”), the owner of the Queen of the North; Colin Henthorne, her captain; Karl Lilgert, the fourth officer who was on the bridge at the time she ran aground; and Karen Bricker (properly spelled Briker), a deckhand who was also on the bridge at the time of the incident.

[4] BCFS has admitted liability for the incident, but claims the benefit of the limitation of liability provided in the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (the “Athens Convention”).

[5] In addition to their claim for general damages, including loss of support, loss of guidance, care and companionship, loss of inheritance, loss of dependency and loss of services, the plaintiffs claim punitive and aggravated damages.

[6] I am the assigned trial judge for these two actions and the trial is set to commence on February 2, 2009 with a jury.

[7] The defendant BCFS brings this application under Rule 34 of the Rules of Court for a declaration that punitive damages and aggravated damages are not recoverable as a matter of law in a fatal accident claim governed by the MLA and an order striking the claim for punitive, exemplary and aggravated damages from the statements of claim.

III. POSITIONS OF THE PARTIES

[8] The parties are in agreement that it is appropriate to determine this legal issue at this time under Rule 34, which provides as follows:

34(1) A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by requisition and disposed of at any time before the trial.

(2) Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just.

[9] If BCFS is correct in its assertion that punitive and aggravated damages are not recoverable in these actions in any circumstances that will dispose of any claim for such damages and that issue must not be left with the jury for determination.

[10] In brief summary, it is the position of BCFS, supported by the other defendants, that the claims for damages in these wrongful death actions that arise out of this tragic maritime incident are confined within the four corners of the MLA, which governs such claims. They submit that the only damages that are recoverable are those prescribed by the MLA and that the MLA, which does not mention punitive or aggravated damages, precludes any claim for such damages.

[11] The plaintiffs agree that their cause of action is founded upon the MLA and that the MLA is silent with respect to punitive or aggravated damages. They submit, however that the fact the MLA does not speak of punitive or aggravated damages does not mean that it precludes their recovery. They submit that there is a statutory “gap” regarding punitive and aggravated damages and that the court may look to maritime common law to fill the gap. The plaintiffs submit that punitive and aggravated damages are recoverable under Canadian maritime common law. Alternatively, they submit that if punitive and aggravated damages are not part of Canadian maritime common law at this time this Court can and should reform the common law to permit a claim for punitive and aggravated damages.

IV. RELEVANT STATUTORY PROVISIONS

[12] Part 1 of the MLA applies in respect of claims made and remedies sought under or by virtue of Canadian maritime law. Section 6 of the MLA provides in part:

6. (2) If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependants of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from whom the deceased person would have been entitled to recover.

(3) The damages recoverable by a dependant of an injured or deceased person may include

(a) an amount to compensate for the loss of guidance, care and companionship that the dependant could reasonably have expected to receive from the injured or deceased person if the injury or death had not occurred; and

(b) any amount to which a public authority may be subrogated in respect of payments consequent on the injury or death that are made to or for the benefit of the injured or deceased person or the dependant.

[13] Schedule 2, Part 1 of the MLA incorporates Articles 1 to 22 of the Athens Convention. Article 3 of the Athens Convention provides as follows:

1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant.

3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.

Article 14 of the Athens Convention states:

No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

V. DISCUSSION AND ANALYSIS

A. Recovery under the MLA and Athens Convention

1. Punitive or Exemplary Damages

[14] It is clear that punitive or exemplary damages are not compensatory in nature. Their purpose is to punish wrongdoers and deter others from acting in the same manner (Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 [Hill]; Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085).

[15] Counsel for BCFS submits that the language of ss. 6(2) of the MLA, which provides for the recovery of “loss resulting from the death” of a person, limits the scope of recovery to compensatory damages only. He refers to authorities where similar statutory language has been held to provide for compensatory damages only and preclude the recovery of punitive or exemplary damages.

[16] In Naval-Torres v. Northwest Airlines Inc. (1998), 159 D.L.R. (4^th) 67, 21 C.P.C. (4^th) 67 (Ont. Gen. Div.), the court considered Article 17 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the “Warsaw Convention”), which provided as follows:

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

[17] Sharpe J. held that where the claim falls within the Warsaw Convention no claim for punitive damages can be advanced. At p. 77 he explained:

Punitive damages are not compensatory, but rather designed to punish: see Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129 at (S.C.C.) 185-6 per Cory J: "Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant." Article 17 provides only for liability for "damage sustained". This language indicates that damages to be awarded under the Convention are compensatory in nature. While I was referred to no Canadian or English cases on the point, American courts appear to have been unanimous in accepting the contention that only compensatory damages are permitted by the Convention and that punitive damages are excluded: see Re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 928 F.2d 1267 (2nd Cir, 1991); Re Korean Airlines Disaster of Sept. 1, 1993, 932 F. 2d 1475 (D.C. Cir. 1991), cert. denied 112 S.Ct. 616 (1991).

[18] The same conclusion was reached in Chernack v. Air France, [2002] R.J.Q. 3152 (S.C.) and Chau v. Delta Air Lines Inc. (2003), 67 O.R. (3d) 108 (S.C.J.).

[19] In my opinion, the wording in Article 3 of the Athens Convention is analogous to that in Article 17 of the Warsaw Convention. Article 3 provides that “the carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger”. Section 6 of the MLA then defines damages of a dependant as “loss resulting from the injury” (s-s. 1) and “loss resulting from the death” (s-s. 2). Article 14 of the Athens Convention operates to confine the action within the convention.

[20] I conclude that the wording of the legislation in this case, as in the case of the Warsaw Convention, clearly indicates that damages to be awarded under the MLA and Athens Convention are to be compensatory in nature. I am of the opinion, therefore that where the claim falls under the MLA and Athens Convention, as these claims do, the provisions of the legislation do not permit the recovery of punitive or exemplary damages, which are not in the nature of compensation.

[21] Counsel for the plaintiffs suggest, however, that recoverability of punitive damages in wrongful death claims is not unknown. They refer to the decision in Cyr v. Williams (1996), 14 B.C.L.R. (3d) 289 (S.C.)[Cyr], a brief oral decision, in which the court awarded punitive damages in favour of the surviving children of a mother who had been murdered by the children’s father. In Cyr the court referred to but distinguished the case of Campbell v. Read (1987), 22 B.C.L.R. (2d) 214, 49 D.L.R. (4^th) 51 (C.A.) [Campbell].

[22] Campbell was a negligence action in which the father of a pedestrian who was killed when struck by a motor vehicle brought an action as administrator of the estate of the deceased pursuant to the provisions of the Family Compensation Act, R.S.B.C. 1979, c. 120 and the Estate Administration Act, R.S.B.C. 1979, c. 114.

[23] The plaintiff brought an application under Rule 34 to determine a number of points of law. The chambers judge found, as a matter of law, that the plaintiff could maintain an action for aggravated damages under the Family Compensation Act and that the plaintiff could bring a claim under the Estate Administration Act, on behalf of the estate, for punitive or exemplary damages.

[24] The Court of Appeal held that the chambers judge had erred and that the plaintiff could not maintain an action for aggravated damages under the Family Compensation Act. I will deal with that aspect of the judgment in my discussion of aggravated damages later in these reasons.

[25] With regard to punitive damages, Wallace J.A. said at 218 (B.C.L.R.):

Again, in my view, the chambers judge fails to consider the restricted nature of the claim which the Estate Administration Act permits to survive the death of an injured party. It is confined by s. 66(2) to an action "for loss or damage to the person or property of the deceased". Since exemplary damages are granted in those cases "where the conduct of the defendant has been such as to merit the condemnation of the court" (see Robitaille v. Vancouver Hockey Club, 30 B.C.L.R. 286, at 310) and are designed "to punish the defendant for his behaviour, which may be compendiously described as inexcusable or reprehensible, and to deter others from acting in the same manner": (Vorvis v. I.C.B.C. (1984) 53 B.C.L.R. 63 at 72) they do not come within the category of "loss or damage to the person or property of the deceased".

[26] I conclude, although it is not stated in the judgment, that the claim for punitive damages in Cyr was made under the Families Compensation Act. Even though the issue regarding punitive damages in Campbell arose in connection with the claim under the Estate Administration Act, the trial judge in Cyr distinguished Campbell, saying at 290 (B.C.L.R.):

With regard to the question of exemplary damages, I would distinguish the reasoning of the court in Campbell v. Reid. There it was an action of negligence. Here this was a deliberate criminal act of manslaughter, where the defendant intentionally killed his wife and deprived these four young children of their mother for the rest of their lives.

[27] In my view Cyr must be seen as standing alone. In any event, I am of the opinion that it cannot be relied on to support a claim for punitive damages in the present case, which is an action based on negligence under the MLA.

2. Aggravated Damages

[28] Aggravated damages are compensatory in nature and are awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive thereby increasing the plaintiff’s mental distress. In Hill, Cory J. described them at paras. 188 – 89 in these terms:

[188] Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 231:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress -- the humiliation, indignation, anxiety, grief, fear and the like -- suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

[189] These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

[29] Aggravated damages are non-pecuniary damages. In Grewal v. Grewal, 2005 BCSC 143, Mr. Justice Bernard observed at para. 17:

[17] Aggravated damages are an aspect of non-pecuniary damages, and serve to augment them when intangible injuries such as significant and enduring emotional distress, humiliation and indignity arise from the manner of doing the injury.

[30] Counsel for BCFS says that, in the context of these actions, the MLA is designed to compensate a dependant for “damage as a result of the death of … a passenger”. He submits that aggravated damages, while compensatory in nature, do not compensate for “damage suffered as a result of the death … of a passenger” (Article 3 of the Athens Convention) (emphasis added). Aggravated damages suffered by a dependant are those suffered as a result of the actions of the defendant, such as mental distress or hurt feelings caused by the behaviour of the defendant, and not as a result of the death itself. He submits, therefore, that they do not come within the ambit of the legislative scheme.

[31] Counsel for BCFS submits that courts have denied recovery of aggravated damages under other statutes that provide for the recovery for damage “resulting from death” on the basis that such damages are not suffered as a result of death.

[32] In deciding that aggravated damages are not recoverable under the Family Compensation Act, Wallace J. stated in Campbell at 217(B.C.L.R.):

The chambers judge noted the distinction between aggravated damages and exemplary damages. He recognized that the former were designed to compensate the plaintiff for the harm done to him, which harm was aggravated by the manner or circumstances of the defendants' tortious act, whereas the latter are intended to punish the defendant. The chambers judge concluded, presumably because of this distinction, that a claim for aggravated damages is open under the Family Compensation Act.

In reaching his conclusion, the chambers judge did not appear to consider the restricted nature of a claim under the Family Compensation Act. Section 3 of that Act provides in part:

3.(1) The action shall be for the benefit of the spouse, parent or child of the person whose death has been caused, and shall be brought by and in the name of the personal representative of the person deceased.

(2) The court or jury may give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought. [emphasis added by Wallace J.A.]

To support the plaintiff's claim to aggravated damages in a claim advanced under the Family Compensation Act, one would have to include in the phrase "injury resulting from the death", damages for the anguish and sorrow experienced by the dependants resulting from the death of Douglas Campbell.

Claims under this Act have been restricted to pecuniary loss and benefits sustained by the spouse, parent or child of the deceased victim, which they would have enjoyed had the person not died as a result of the conduct of the tortfeasor: see Ponyicki v. Sawayama, [1943] S.C.R. 197 at 206-207, [1943] 2 D.L.R. 545 [B.C.].

Circumstances which may aggravate the loss or damage sustained by an injured party are personal to that individual in the same sense as is the pain, suffering and loss of amenities experienced by the injured party. Such loss is not an injury of the kind dependants sustain as a "result of the death of the deceased".

I would answer the first question posed in the negative and find the plaintiff may not maintain a claim for aggravated damages pursuant to the Family Compensation Act.

[33] When considering whether aggravated damages are recoverable in wrongful death claims it is instructive to consider the development of the law that was described in Allan Estate v. Co-operators Life Insurance (1999), 62 B.C.L.R. (3d) 329 (C.A.). To summarize, at common law where a person’s death was caused by wrongful act, neglect or default, a dependant of the deceased was not able to bring an action against the wrongdoer for damage caused to the dependant as a result of the wrongful death. The harshness of the law was addressed in England in 1846 by Lord Campbell’s Act (U.K.), 1846, c. 93, which permitted the jury to award such damages "as they may think proportioned to the injury resulting from such death to the parties respectively for whose benefit such action shall be brought". Under Lord Campbell’s Act, which became part of the law of British Columbia in 1858, damages were limited to pecuniary loss only.

[34] In St. Lawrence & Ottawa Railway v. Lett (1885), 11 S.C.R. 422 [St. Lawrence & Ottawa Railway], the Supreme Court of Canada expanded the scope of recovery somewhat by holding that certain consequential losses, such as care, training and education, were to be considered, in the context of fatal accident cases, pecuniary losses. Chief Justice Ritchie made it clear, however, that damages must be capable of a pecuniary estimate and could not be given as compensation for injured feelings, stating at 432-33:

I think the statute intended that where there was a substantial loss or injury there should be substantial relief. I cannot think that in giving compensation to a child for the loss of its parent the legislature intended so to limit the remedy as to deprive the child of compensation for the greatest injury it is possible to conceive a child can sustain, namely, in being deprived of the care, education and training of a mother, unless it could be shown that the loss was a pecuniary loss of so many dollars or so much property, a construction which, in ninety-nine cases out of a hundred, would simply amount to saying that though there was an almost irreparable injury, affecting the present and future interests of the child, no compensation was to be awarded; in other words it would be, in effect, to deny to a child compensation for the death of a mother by negligence in almost every conceivable case.

I think the term injury in the statute means substantial injury as opposed to mere sentimental, and I cannot bring my mind to the conclusion that a husband or infant children may not, in the loss of a wife or mother, and did not in this case by such a loss, sustain a substantial injury and one for which it was the intention of the legislature to indemnify the husband and children. I am free to admit that the injury must not be sentimental or the damages a mere solatium, but must be capable of a pecuniary estimate; but I cannot think it must necessarily be a loss of so many dollars and cents capable of calculation. The injury must be substantial; the loss, a loss of a substantial pecuniary benefit, and the damages are not to be given to soothe the feelings of the husband or child, but are to be given for the substantial injury.

[35] The legislation governing fatal accidents claims in several provinces provides the more expansive scope of damages and permits claimants to recover for the loss of care, guidance and companionship as was done in St. Lawrence & Ottawa Railway.

[36] Section 61 of the Ontario Family Law Act, R.S.O. 1990, c. F.3, 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 the 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]

[37] In Lord v. Downer (1999), 179 D.L.R. (4^th) 430, 40 C.P.C. (4th) 100 (Ont. C.A.) [Lord], the issue was whether, in an action for damages under s. 61 of the Ontario Family Law Act, the surviving relatives of a murder victim are entitled to assert a claim for punitive, exemplary or aggravated damages.

[38] Sharpe J.A. traced the historic progress and modification of the rule in Ontario at para. 4:

[4] At common law, the right to bring an action in tort did not survive the death of the victim. Neither the estate of the victim nor the victim's relatives had a right to sue for their losses: Baker v. Bolton (1808), 1 Camp. 493, 170 E.R. 1033. Fatal accidents legislation, first introduced in England in 1846 (Lord Campbell's Act, 1846 (U.K.), 9 & 10 Vict., c. 93) and in this jurisdiction in 1847 (Fatal Accidents Act, S.U.C. 1847, 10 and 11 Vict., c. 6), gave enumerated dependants a statutory cause of action for "damages.": see Fatal Accidents Act, R.S.O. 1970, c. 164, s. 2. As explained by this Court in Mason v. Peters (1982), 39 O.R. (2d) 27 at 31, 139 D.L.R. (3d) 104 (leave to appeal to the Supreme Court of Canada refused December 6, 1982), this provision only allowed recovery for pecuniary losses. Dependants of the deceased tort victim had no right to recover damages for the non-economic losses of guidance, care and companionship, nor could they claim damages as solatium for grief or mental anguish. Over time, the rights of the dependants were perceived to be too limited. Fatal accidents legislation was replaced in 1978 by the Family Law Reform Act, 1978, S.O. 1978, c. 2 ("FLRA"), s. 60. The FLRA provision was in turn replaced, in virtually identical terms, by the presently applicable Family Law Act, supra ("FLA"), s. 61.

[39] In Lord , the court rejected the claimant’s argument that the inclusion of recovery for loss of “guidance, care and companionship” under the Family Law Act permits the recovery of non-pecuniary losses such as aggravated damages. At paras. 8 – 12, Sharpe J.A. said:

[8] Aggravated damages are non-pecuniary in nature, yet they aim at compensation. Aggravated damages take into account intangible elements of the injury suffered, such as distress and humiliation: Waddams, supra at 11-1 to 11-2. In Hill v. Church of Scientology of Toronto and Manning, supra at 1205, Cory J. quoted with approval the statement of Robins J.A. in Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 at 111: "Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress - the humiliation, indignation, anxiety, grief, fear and the like - suffered by the plaintiff ... the plaintiff may be entitled to what has come to be known as aggravated damages'." Aggravated damages may be awarded in appropriate cases to augment damages assessed under the generally applicable rules for the recovery of damages: Vorvis, supra, at 1099.

[9] In his forceful argument, Mr. Strosberg submitted that the language of s. 61(2)(e) widens the ambit of recovery beyond "pecuniary loss". He contended that by opening the door to non-pecuniary damages for loss of guidance, care and companionship in s. 61(2)(e), the legislature also opened the door to recovery of aggravated damages, in that they too are non-pecuniary but compensatory in nature.

[10] The motions court judge rejected that submission, in part, on the basis that the dependants could not be considered victims of the tort. He stated: "… clearly, it is not the family which suffers any humiliation related to the defendant's conduct but the victim." It seems to me that as a matter of fact, the dependants of the victim of a deliberate tort may well suffer feelings of "humiliation, indignation, anxiety, grief, fear and the like" as a result of the defendant's wrong. The issue, however, is not whether the dependants suffer feelings of this kind, but rather whether such an injury is compensable under the statute.

[11] In my view, in the light of Mason v. Peters, supra, the inevitable conclusion is that such losses are not recoverable. In that case, after a careful review of the legislation, its history, and the authorities interpreting it and its predecessors, Robins J.A. concluded that while the Act (there, the FLRA, s. 60 (2), now, the FLA, s. 61 (2)), allows for the recovery of the non-pecuniary loss of care, guidance and companionship, the trial judge had properly excluded (at p. 39) "grief, sorrow and mental anguish suffered by reason of the death as compensable items of damage. Non-pecuniary loss of this kind, unlike guidance, care and companionship, are not provided for in the Act and under its terms remain non-recoverable." See also Reidy v. McLeod (1986), 54 O.R. (2d) 661n at 662, 27 D.L.R. (4^th) 317n (C.A.). Mason v. Peters, supra, did not deal with the issue of aggravated damages. However, it is my view that by holding that the statute does not allow recovery for grief, sorrow and mental anguish, the decision effectively precludes recovery of aggravated damages as they aim to compensate a similar, if not identical, loss.

[12] Accordingly, while it is the case that the FLA, s. 61(2) does provide that the damages recoverable "may include" certain specified non-pecuniary losses, it does not follow that the door has been opened generally for recovery for all other forms of non-pecuniary loss. As Mason v. Peters, supra, makes clear, the law has long distinguished between loss of guidance, care and companionship on the one hand and grief, sorrow and mental anguish on the other. The nature of the injury addressed by aggravated damages is closely akin to, if not identical with, compensation for grief, sorrow and mental anguish. As the latter is excluded from the statutory right created by the FLA, s. 61(2), there is no basis in law for recovery of aggravated damages: see Worobel Estate v. Worobel (1988), 67 O.R. (2d) 151 (H.C.J.) at 157.

[40] The limit on recovery of damages to pecuniary loss has been applied in British Columbia in wrongful death actions. In DeBrincat v. Mitchell (1958), 26 W.W.R. 634 (B.C.S.C.), the British Columbia Supreme Court in interpreting the Families’ Compensation Act, R.S.B.C. 1948, c. 116, explained the meaning of “pecuniary loss” at 635 - 36:

On the matter of quantum of damages I will consider first the claim advanced under the Families' Compensation Act. 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) 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.

…

… It must never be forgotten that in families’ compensation cases, it is the loss of services rather than loss of the deceased parent for which compensation is payable. Any other claim arising out of emotional disturbance is really a claim for the effects of grief, a claim for solatium which is not recoverable under this head of damage.

[41] Under s. 6(2) of the MLA the dependants’ recovery with regard to the wrongful deaths is for “loss resulting from the death” and under Article 3 of the Athens Convention the liability of the carrier is for “damage suffered as a result of the death … of a passenger”. The MLA then affords the claimant an additional window of recovery by permitting the common extension of the scope of damages in fatal accident cases introduced by St. Lawrence & Ottawa Railway, namely damages to compensate for “loss of guidance, care and companionship” in s. 6(3).

[42] In my view, the MLA does not go farther to provide or permit the recovery of non-pecuniary damages in the nature of punitive, exemplary or aggravated damages.

B. Recovery under Maritime Common Law

1. Does Canadian maritime law permit punitive and/or aggravated damages?

[43] The plaintiffs submit that the MLA and the Athens Convention leave a gap in not providing for aggravated and punitive damages. They submit that this gap should be filled by relying on maritime common law, which they suggest permits the recovery of such damages. Alternatively, they submit that this court should engage in judicial reform of maritime law to extend the scope of damages to permit recovery of punitive and aggravated damages.

[44] The plaintiffs rely principally on the decision in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 166 D.L.R. (4^th) 193 [Ordon], in support of their submissions. Ordon was concerned with a number of negligence actions in relation to boating accidents that occurred on navigable waters within Ontario. In the actions claims were advanced by dependants of persons who had died in the accidents under the Ontario Family Law Act seeking, amongst other things, compensation for loss of guidance, care and companionship under that Act. The actions also involved claims under the Ontario Family Law Act by dependants of persons who were injured in the incidents as well as claims brought by siblings of persons who were killed or injured. The defendants took the position that the Ontario Family Law Act did not form part of Canadian maritime law and that all of the plaintiff’s claims should have been brought pursuant to the Canada Shipping Act, R.S.C., 1985, c. S-9, then in force.

[45] One of the issues on appeal was the constitutional applicability of Part V of the Ontario Family Law Act to the proceeding in relation to damages for personal injury. The reason why the plaintiffs sought to rely on the provincial legislation was set out by the Court at para. 97:

97 The plaintiffs seek to rely upon Part V of the Family Law Act because it provides for three types of negligence claims which are not expressly provided for in the Canada Shipping Act, namely:

- a claim by a dependant for damages for loss of guidance, care and companionship arising out of a fatal accident;

- a claim by a dependant for damages (including damages for loss of guidance, care and companionship) arising out of an accident causing personal injury; and

- a dependant's claim for damages by a sibling of the person killed or injured.

[46] Section 647(2) of the Canada Shipping Act, which provided for the award of damages in relation to a dependant’s fatal accident claim, was silent as to the nature of the compensable loss, hence the claim under the Family Law Act.

[47] One of the issues before the Court in Ordon was whether a validly enacted provincial statute of general application may be applied to deal with incidental aspects of a maritime negligence claim that is otherwise governed by federal maritime law. In Ordon the plaintiffs submitted that “although provincial statutes are not usually applicable to resolve maritime matters, they should nevertheless be applied as incidentally necessary to fill gaps which may exist in federal maritime negligence law” (at para. 68).

[48] In the present case, the plaintiffs do not seek to rely on provincial legislation. The Family Compensation Act clearly precludes the recovery of punitive or aggravated damages. However, the plaintiffs rely on the analysis by the Court regarding the potential for judicial reform of maritime law.

[49] At para. 71 in Ordon the Court set out a number of basic principles and themes regarding the sources and content of Canadian maritime law, the role of provincial legislation in relation thereto and the scope for gradual change and development in maritime law. Included in these principles and themes were the following:

5. The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation…

6. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action…

7. Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the law apply to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met…

[internal references omitted]

[50] Beginning at para. 72 the Court set out a four part test to be applied in any instance where a provincial statute is sought to be invoked as part of a maritime law negligence claim. These can be summarized as follows:

1. A determination of whether the specific subject matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping under s. 91(10) of the Constitution Act, 1867 (at para. 73);

2. A determination of whether it is necessary for the party who seeks to rely upon the provincial statute within the context of a maritime negligence claim to do so or whether a counterpart to the statutory provision upon which the party seeks to rely is present within Canadian maritime law itself (at para. 74);

3. If existing sources of Canadian maritime law do not contain a counterpart to the provision sought to be relied upon, prior to engaging in constitutional analysis a determination of whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law as set out in Watkins v. Olafson, [1989] 2 S.C.R. 750, R. v. Salituro, [1991] 3 S.C.R. 654, Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, and Ordon (at para. 76); and

4. If required, a constitutional analysis of whether a particular provincial statutory provision is applicable within the context of a maritime law claim (at para. 80).

[51] The Court discussed the issue of judicial reform of maritime law at paras. 78 - 79:

[78] We note, with respect to the test for judicial reform of the law that was applied by McLachlin J. in Bow Valley Husky, supra, and again in Porto Seguro, supra, that the test as it has been thus far developed is a common law test with a national focus. In our view, this common law test must be adapted in accordance with the nature and sources of maritime law as an international body of law whenever courts consider whether to reform Canadian maritime law. The basic elements of the test for judicial reform of the common law were set out by Iacobucci J. for the Court in Salituro, supra, at p. 670:

Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

[79] When applying the above framework in the maritime law context, a court should be careful to ensure that it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters. Similarly, in evaluating whether a change in Canadian maritime law would have complex ramifications, a court must consider not only the ramifications within Canada, but also the effects of the change upon Canada's treaty obligations and international relations, as well as upon the state of international maritime law. It is essential that the test for judicial reform of Canadian maritime law accord with the sui generis nature of that body of law.

[52] In the present case, the plaintiffs suggest that there is a “gap” in the statutory provisions governing dependants’ claims but that maritime common law fills the gap and provides for the right to recover punitive and aggravated damages.

[53] The plaintiffs refer to the U.S. Supreme Court decision of Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008) [Exxon], in support of their submission that punitive damages are a well known feature of maritime law. Exxon involved claims brought by a number of plaintiffs for economic losses caused to various persons resulting from the environmental damage caused by the grounding of the supertanker Exxon Valdez and subsequent spilling of million gallons of crude oil into Prince William Sound. An appeal from awards including an award of punitive damages was dismissed.

[54] From my reading of the decision, it appears that it was accepted by the Court that in the case of such an event punitive damages might be awarded and the issues were: (1) whether a ship owner can be liable for punitive damages without acquiescence in the actions causing harm; (2) whether punitive damages were barred implicitly by federal environmental legislation making no provision for them; and (3) whether the award of $2.5 billion was greater than maritime law should allow in the circumstances. The punitive damages award against Exxon was upheld but determined by the U.S. Supreme Court to be excessive as a matter of maritime common law, and so limited to an amount equal to compensatory damages.

[55] Counsel for the plaintiffs have not been able to cite any decision in Canadian maritime law in which an award of punitive and/or aggravated damages was made in a dependants’ claim. Further, in Capilano Fishing Ltd. v. Qualicum Producer (The), 2001 BCCA 244, 198 D.L.R. (4^th) 267, Madam Justice Southin said this at para. 49:

As to punitive damages, one of their purposes is to discourage wrong-doers. The conclusion that the roe-herring fishery is an essentially reckless maritime adventure in which an owner cannot limit his liability should itself discourage wrong-doing and nothing more is necessary. I add also that no case was cited to us in which punitive damages were awarded for the negligent navigation of a vessel, whether against a ship, the master or the owner, and it is not for this Court to introduce into maritime law a concept unknown to it.

[56] I am not persuaded that punitive and aggravated damages form part of Canadian maritime common law.

2. Should this Court undertake to reform Canadian maritime law?

[57] The plaintiffs submit that this court should reform Canadian maritime common law to provide for punitive and aggravated damages using the approach set out in Ordon. I am not persuaded that this Court should engage in such reform. In the first place, the plaintiffs have not put forward a cogent reason why the court should do that which Parliament has chosen not to do. When the MLA was enacted Parliament incorporated the reform made by the Supreme Court of Canada in Ordon. It provided in s. 6(3) for the inclusion in damages recoverable by dependants of “an amount to compensate for the loss of guidance, care and companionship that the dependant could reasonably have expected to receive from the injured or deceased person if the injury or death had not occurred”. It could have further expanded the scope of damages but did not do so.

[58] Secondly, as Ordon made clear, the uniformity of maritime law is particularly pressing in actions for tortious liability. In undertaking judicial reform in an area of law that is the product of international treaties, courts must consider the effects of the change on the state of international maritime law. With those considerations in mind, I have not been presented with a sufficient basis upon which to reform Canadian maritime law in the manner put forward by the plaintiffs.

[59] Thirdly, introducing into Canadian maritime law the ability for dependants to claim punitive or aggravated damages, or both, would place them in a different and potentially superior position as compared to dependants of persons killed in, for example, a bus crash on the highway, whose claim would fall under the Family Compensation Act. I can see no basis for creating that difference.

[60] In summary, I conclude that the dependants’ claims in these actions fall exclusively under the MLA and the Athens Convention. There is no ability under the statute and convention for a dependant of a deceased passenger to recover punitive, exemplary or aggravated damages. I am not persuaded that such damages are recoverable under maritime common law applicable in Canada. I am not persuaded that this court should engage in judicial reform of Canadian maritime law to expand the scope of recovery to include such damages. In my opinion, if such reform is warranted it must come from Parliament.

V. DISPOSITION

[61] The application of the defendant BCFS is allowed. This court declares that punitive damages and aggravated damages are not recoverable by dependants as a matter of law in these actions and those claims are struck from the statements of claim in these actions.

“B.M. Joyce J.”