IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121122

Docket: S113276

Registry:
Vancouver

Between:

Barbara Anne Glenn
in her own right, as Personal Representative of Thomas Glenn, deceased, and as
Executrix of the Estate of the said Thomas Glenn, Dorothy Glenn, by her
Litigation Guardian Donna Poole, Matthew Kristen Glenn and Hayley Morgan
Bradley (nee Glenn)

Plaintiffs

And

Seair Seaplanes
Ltd., Francois St. Pierre, Victoria Air Maintenance Ltd., ABC Corporation, XYZ
Corporation, John Doe, Jane Doe and Attorney General of Canada

Defendants

And

Viking
Air Ltd., Victoria Air Maintenance Ltd., The Attorney General of Canada, Seair
Seaplanes Ltd. and Francois St. Pierre

Third
Parties

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]            
These are proceedings pursuant to Rule 9-4 of the Supreme Court Rules,
considering points of law that arise from the pleadings.  The parties consent
to proceeding in this manner.

[2]            
The material facts are not in dispute.  The underlying action arises
from a seaplane crash at Lyall Harbour on Saturna Island in British Columbia. 
The crash occurred on November 29, 2009.  The deceased Thomas Glenn and his
wife Barbara Glenn were among seven passengers on the seaplane.  The action has
been brought against the owner and operator of the seaplane, Seair Seaplanes
Ltd. and the pilot, Francois St. Pierre.

[3]            
The plaintiffs also plead negligence on the part of the other
defendants, Viking Air Ltd., which holds the aircraft type certificate for the
seaplane, Victoria Air Maintenance Ltd., which maintained and serviced the
seaplane and the Attorney General of Canada who regulates commercial aviation
in Canada.

[4]            
Slightly after take-off, the seaplane crashed.  Mr. Glenn survived the
crash but was unable to exit the cabin.  He subsequently drowned.  Ms. Glenn
was able to escape the cabin and was rescued.

[5]            
On these facts, Mr. Glenn’s estate brings an action under the Estate
Administration Act, R.S.B.C. 1996, c. 122 (the “EAA”).  The
individual plaintiffs do so under the Family Compensation Act, R.S.B.C.
1996, c. 126 (the “FCA”).  The plaintiffs in both actions seek both
punitive and aggravated damages.

[6]            
The questions of law before the court are:

1.       Does a
claim for punitive damages arising from injury survive the death of the injured
person under the EAA?

2.       Does a
claim for aggravated damages arising from injury survive the death of the
injured person under the EAA?

3.       Does a
claim for punitive damages arising from death survive under the EAA?

4.       Does a
claim for aggravated damages arising from death survive under the EAA?

5.       Does a
claim for punitive damages arising from injury exist under the FCA?

6.       Does a
claim for aggravated damages arising from injury exist under the FCA?

7.       Does a
claim for punitive damages arising from death exist under the FCA?

8.       Does a
claim for aggravated damages arising from death exist under the FCA?

[7]            
Questions 2 and 4 are not in dispute.  The defendants say and the plaintiff
concedes that aggravated damages are not available under the EAA.

[8]            
That leaves the other six questions to be determined.

[9]            
Questions 1 and 3 have been answered by the British Columbia Court of
Appeal in Lodge v. Fraser Health Authority, 2009 BCCA 108.  The court in
that case accepted that it was settled law that a claim for aggravated damages
or punitive damages was not available under the EAA. Bauman J.A. (as he
then was) put it this way:

[53]      In my view, the trial judge and this court, sitting
as a panel of three, are bound by the decisions in Campbell v. Read [(1987),
22 B.C.L.R. (2d) 214 (C.A.)], and Allan Estate v. Co-Operators Life
Insurance Co., 1999 BCCA 0035, 62 B.C.L.R. 3d 329.

[54]      In Campbell v. Read, this court held that a
claim for aggravated damages could not be maintained under the Estate
Administration Act, R.S.B.C. 1996, c. 122.

[55]      The same result in respect of a claim for punitive
damages was reached in Allan Estate.

[56]      Here, the Estate could
not maintain these claims.

[10]        
I turn now to the FCA. The Court of Appeal has also addressed the
questions of law at bar under the FCA squarely.  In Campbell v. Read,
(1987), 22 B.C.L.R. (2d) 214 at 217, Wallace J.A. stated:

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”.

[11]        
In Allan Estate v. Cooperators Life Insurance Co., 1999 BCCA 35,
62 B.C.L.R. (3d) 329, Lambert J.A. stated:

[71]      Punitive damages are
not damages proportioned to the injury resulting from the death.  The remedy
under the [Family Compensation Act] is a statutory one.  There is
no authority in the statute to award punitive damages.  So punitive damages
cannot be assessed or awarded in a Family Compensation Act action.

[12]        
The plaintiffs concede that appellate authority is against them.  Counsel
advised the court that he will be asking for a five-person panel of the British
Columbia Court of Appeal to reconsider these questions.

[13]        
I am bound by the decisions of the Court of Appeal.

[14]        
The eight questions raised in this point of law proceeding must all be
answered in the negative.

“S.F. Kelleher J.”
The Honourable Mr. Justice S.F. Kelleher