IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131010

Docket: S042375

Registry:
Vancouver

Between:

Gurmej Singh
Dhillon

Plaintiff

And

Jalal A. Jaffer
and Nasib Kaur Dhillon

Defendants

Before:
The Honourable Mr. Justice Melnick

Supplementary
Reasons to: Dhillon v. Jaffer, 2013 BCSC 1595, August 30, 2013

Reasons for Judgment

[1]            
In my reasons for judgment (2013 BCSC 1595), I awarded Mr. Dhillon
damages for loss of opportunity of $5,000 and general damages of $40,000. I did
not award court order interest on either amount. Mr. Jaffe, counsel for
Mr. Dhillon, submits that I should have ordered interest on both, as they
are both pecuniary judgments. Mr. Macdonald, counsel for Mr. Jaffer,
takes the opposite view, submitting that I should not include court order
interest on those two portions of my judgment.

[2]            
In light of counsels’ helpful submissions, I have reconsidered my not
having awarded court order interest on those two heads of damages. As I
mentioned to counsel during submissions to me on September 26, 2013, it was my
initial impression that these were both essentially awards of “non-pecuniary”
damages. I have now, in part, come to a different conclusion in light of
counsels’ submissions and further research.

I.        DISCUSSION

[3]            
The Court Order Interest Act, R.S.B.C. 1996, c. 79 [Act] provides
in part:

1 (1) Subject to section 2, a court must add to a pecuniary
judgment an amount of interest calculated on the amount ordered to be paid at a
rate the court considers appropriate in the circumstances from the date on
which the cause of action arose to the date of the order.

2 The court must not award interest under section 1

(a) on that part of an order that
represents pecuniary loss arising after the date of the order,

(b) if there is an agreement about
interest between the parties,

(c) on interest or on costs,

(d) if the creditor waives in
writing the right to an award of interest, or

(e) on that part of an order that represents nonpecuniary
damages arising from personal injury or death.

[4]            
The terms “pecuniary” judgment is not defined in the Act. A
useful starting point is Wepruk (Guardian ad litem of) v. McMillan Estate
(1993), 33 B.C.A.C. 114 (C.A.) [Wepruk]. The issue on appeal in Wepruk
was whether the appellant was entitled to court order interest pursuant to
s. 1 of the Act for an award for future support and other benefits
pursuant to the Estate Administration Act, R.S.B.C. 1996, c. 122.
As part of her analysis, Madam Justice Prowse looked at the 1987 Report on the Court
Order Interest Act by the Law Reform Commission of BC (“LRC”). In that report,
the LRC noted that the term “pecuniary judgment” had not been used by it in its
original report that led to the Act. Rather the Commission had used the
words “sounding in money” to distinguish monetary awards from non-monetary
awards such as decrees of divorce or injunctions, and the Legislature adopted
“pecuniary judgment” to signify that concept. In Wepruk, Madam Justice
Prowse used the LRC’s originally suggested terms as an interpretive tool in
concluding that the money awarded to the appellant in the case before her
“unquestionably sounds in money” and that the award thus constituted a
pecuniary judgment to like effect (see Cabaniss v. Cabaniss, 2010 BCSC
513).

[5]            
In K.L.B. v. British Columbia (1998), 163 D.L.R. (4^th)
550 (B.C.S.C.) [K.L.B.], a case that dealt with the interpretation of s. 2(e)
of the Act, Madam Justice Dillon stated at para. 3:

3          Section 1(1) of the
Court Order Interest Act, R.S.B.C. 1996, c. 79 establishes the general rule
that pre-judgment interest is to be added to a "pecuniary judgment".
This refers to any monetary award and is not used in the sense of describing
one of the heads of damages (V.(J.L.) v. H.(P.) (1997), 40 B.C.L.R. (3d) 73 at
75). Statutory interest is awarded on any monetary judgment that is not
excluded under section 2 of the Court Order Interest Act.

[6]            
As well see Mullins v. Levy, 2006 BCSC 1723 [Mullins],
where Mr. Justice Holmes stated at paras. 3 and 4:

[3]        At trial the plaintiff was found to have been
assaulted, apprehended and falsely detained, and as a result awarded general
damages of $15,000, and special damages of $148.74.

[4]        The judgment for
general damages is clearly a “pecuniary judgment” under s. 1(1) of the Court
Order Interest Act, and subject to s. 2 it is mandatory that “…a court must
add to a pecuniary judgment an amount of interest … the court considers
appropriate in the circumstances…”.

[7]            
Although both K.L.B. and Mullins were successfully
appealed on other grounds, the Court of Appeal in K.L.B., 2001 BCCA 221,
upheld Madam Justice Dillon’s conclusion that the awards in question in that
case were pecuniary judgments that were excluded from attracting interest
pursuant to s. 2(e) of the Act.

[8]            
Finally, in Woo v. ONNI Ioco Road Five Development Limited
Partnership, 2012 BCSC 1445 [Woo], a declaration that resulted in a
monetary order was found to be a pecuniary judgment for the purposes of s.1 of
the Act (para. 10). This case involved the plaintiffs successfully
applying for a declaration of rescission of a real estate contract for purchase
and sale. This entitled them to the return of monies paid under the contract.
The plaintiffs then applied for court order interest. The difficulty with the
request was that a ‘declaration’ was one of the original remedies distinguished
from pecuniary judgments by the LRC. Though the LRC recommended, at page 66 of
the Report, that a declaration that money is owing should attract prejudgment
interest, the case law was conflicting. Thus, the question for the court was
whether this specific declaration was a pecuniary judgment or not. The court
considered the underlying principle for the award of prejudgment interest,
which is that the plaintiff has been kept out of their money, and should be
compensated for the harmful effects of delay. In conclusion the court held at
para. 36 that the declaration was a pecuniary judgment as the plaintiff
was kept out of their money, while the defendants had use of it.

[9]            
In light of the above authorities, I conclude that both my awards for
damages for loss of opportunity and for general damages are pecuniary judgments
for the purpose of s. 1(1) of the Act. Both remedies are, in
essence, monetary awards or “sound in money”. They do not fall into any other
recognized categories such as a divorce decree or injunction. They are awarded
as a lump sum. Woo notwithstanding, there does not appear to be any case
law that restricts the notion of “pecuniary judgment” based on the principle
that a plaintiff has not been kept out of their money. In fact, Woo
reaffirms that the main consideration is whether the award is monetary. The courts
have also recognized that the application of s. 1(1) is mandatory unless
expressly excluded by the Act (J.L.M. v. P.H. (1997), 40 B.C.L.R.
(3d) 73 (SC) [J.L.M.], at para. 8).

[10]        
That brings me to the consideration of whether either award is excluded
from the application of s. 1 of the Act by s. 2.

[11]        
A “pecuniary judgment” is not to be confused with a head of damages (see
K.L.B. at para. 3; J.L.M. at para. 5). That is,
“pecuniary judgment” does not refer, solely, to pecuniary damages. Therefore,
unless explicitly excluded under s. 2, non-pecuniary damages are also included
in the calculation of interest under s. 1.

A.       General Damages

[12]        
For convenience, I repeat here portions of my original decision relating
to the award of general damages:

61.       As a result of not having his home or all or part
of the proceeds of sale from it, Mr. Dhillon was unable to bring his four
children from India for a considerable period of time.  That made him lonely. At
one point he wanted to die.

62.       Of course it was the fraud of Ms. Dhillon and
Manohar Dhillon in selling the 57th Avenue property in the first place and not
only the negligence of Mr. Jaffer that put Mr. Dhillon into this
unhappy state. But Mr. Jaffer’s negligence undoubtedly contributed
substantially to the agony Mr. Dhillon endured for many years.

71.       It is my view that a claim for damages for
mental distress consequent upon the negligence of a solicitor is not
foreclosed in British Columbia.  But must that be negligence in the context of
where there also exists a fiduciary duty, such as when a solicitor is negligent
in his duty to his own client?  I think not, as long as the negligence
resulted in injury that is reasonably foreseeable.

72.       In this case, I conclude that the greater
portion of Mr. Dhillon’s distress was brought on by the actions of the
fraudster rather than by Mr. Jaffer. However Mr. Jaffer’s
negligence did contribute to it in a measurable and significant way. By
“measurable”, I mean to the extent of one-third of overall general damages
that I assess at $120,000, or $40,000.

(bold added)

[13]        
With respect to this award, the only relevant subsection of s. 2 is
subsection (e): whether or not the award should be excluded because it
represents non-pecuniary damages “arising from personal injury or death”.
General damages awarded for intangible losses, such as for pain and suffering
and mental distress, are considered non-pecuniary damages, and are available in
tort and contract cases (Jamie Cassels and Elizabeth Adjin-Tettey, Remedies:
The Law of Damages, 2d ed. (Toronto: Irwin Law Inc., 2008) at 212). The
real issue to be decided is whether the general damages I awarded, essentially
for mental distress, are to be considered as “arising from personal injury”, as
those words are intended to be understood in the Act. This is a question
of statutory interpretation.

[14]        
Any case of statutory interpretation today must follow the modern
approach, as laid out by Elmer Driedger in the Construction of Statutes,
2ed. (Toronto: Butterworth’s, 1983) at 87, endorsed by the Supreme Court of
Canada in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at
para. 21:

21.       Today there is only one
principle or approach, namely, the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the
intention of Parliament.

[15]        
Sections 2(e) and 1(4) of the Act, the two sections which include
the term “personal injury”, were brought in as part of Bill 27 the Miscellaneous
Statutes Amendment Act, 1993, which was passed on June 29^th,
1993. There was no debate regarding the amendments except two questions about
whether they would affect proceedings already in court for which there was not
a judgment yet. There is thus no direct evidence, however weak, about the
intention of the Legislature with regards to the implementation of the
amendments.

[16]        
The words “personal injury” as they appear in s. 2(e) of the Act,
have been interpreted in a couple of BC Supreme Court cases, namely K.L.B. and
Mullins mentioned above. K.L.B. dealt with negligence on the part
of the government with regards to foster children. In the Supreme Court
decision dealing with interest, Madam Justice Dillon dealt with whether s. 2(e)
applied to damages for breach of fiduciary duty as well as non-pecuniary
damages in tort. She found that it did apply, but went on to hold that the court
had discretion to apply equitable interest in that case. At the Court of
Appeal, 2001 BCCA 221, the decision of Madam Justice Dillon with regards to
most of the awards for damages, the breach of fiduciary duty and equitable
interest were overturned. The court upheld an award for general damages with regard
to mental injury arising from the complaint of sexual assault, and held that s. 2(e)
of the Act applied and thus there was no interest:

54        Court order interest
could not be added to the award of general damages because s. 2(e) of the Court
Order Interest Act, R.S.B.C. 1996, c. 253 prohibits an award of
interest "on that part of an Order that represents non-pecuniary damages
arising from personal injury or death."

[17]        
In his original decision in Mullins, Mr. Justice Holmes
found the plaintiff had been assaulted, apprehended and falsely detained. The
plaintiff was therefore awarded general damages of $15,000, in the form of
aggravated damages, due to the humiliation and undignified circumstances
suffered by the plaintiff. This award was overturned on appeal, making the
related decision with regards to s. 2(e) moot. However, the discussion
with regards to s. 2(e), although not binding on me, is insightful, on
point, and was not addressed by the Court of Appeal.

[18]        
In his supplementary decision respecting court order interest in Mullins
(referred to in para. 6 above), Mr. Justice Holmes dealt directly
with the issue of whether general damages for mental pain and suffering fell
within the meaning of the words “personal injury” under s. 2(e) of the Act.
He noted that the words are undefined within the Act, and that these
same words are used in many different legal contexts (para. 7).

[19]        
Mr. Justice Holmes referred to several sources including the
Black’s Law Dictionary entry of “personal injury”, Schrieber v. Canada (AG),
2002 SCC 62 [Schrieber], which dealt with the meaning of ‘personal
injury’ in the State Immunity Act, R.S.C. 1985, c. S-18, as well
as the ordinary meaning of the word in the Oxford Dictionary. Mr. Justice
Holmes also considered the decision in K.L.B., discussed above. At paras. 13
and 14 Mr. Justice Holmes stated:

13        Madam Justice Dillon in K.L.B. v. British Columbia
(1998), 163 D.L.R. (4th) 550, [1998] B.C.J. No. 1909 (S.C.) held an award for
general damages for physical and mental abuse were damages for personal
injury" and interest could not be awarded under the Act. I agree
with my sister Dillon’s view that the object and purpose of the exclusion of
interest for personal injury is difficult to understand given the absence of
legislative debate or discussion prior to the enactment of s. 2(e) and was
contrary to the recommendation of the Law Reform Commission of British
Columbia.

14        Madam Justice Dillon
noted that it was difficult to justify the exclusion on a principled basis and
in my view it would be even more difficult to justify a distinction between
physical and mental injury. I agree with the submission of counsel for the
defendants that if physical damage only is excluded by s. 2(e), general damage
assessments need be further broken down into damages for physical injury and
damages for emotional or mental injury. I do not accept that was a purpose of
s. 2(e), nor is it a consequence.

[20]        
In my view, the reasoning by Mr. Justice Holmes makes sense, and
coincides with the application of s. 2(e) by the Court of Appeal in K.L.B.
to general damages for mental suffering awarded for sexual assault due to
negligence.

[21]        
It is important to distinguish the case at bar from Schreiber,
mentioned above. In Schreiber, the SCC found that the words “personal
injury” in the State Immunity Act were meant to only deal with physical
injury and not mental injury. However, the court stated that the English words
themselves included the notion of mental injury within their meaning, but that
these were limited by the French text of the statute, which only included
physical harm. Therefore this case is authority for the “shared meaning rule”
in statutory interpretation which governs the interpretation of bilingual
legislation: if there is a discrepancy between the two language versions of an
enactment, the meaning that is common to both must be adopted unless there is
contrary evidence of legislative intent (Ruth Sullivan, Sullivan on the
Construction of Statutes, 5^th ed (Markham, ON: LexisNexis
Canada, 2008) at 100). In this case there is no bilingual statute and thus the
analysis in Schreiber does not apply.

[22]        
At the time of the LRC’s 1987 report on the Act, s. 2(e) did
not exist. The LRC, however, dealt with this proposed change of excluding
non-pecuniary damages, and rejected the addition of a section with the effect
of s. 2(e). On page 51 the recommendation of the Commission is:

8.         The New Act should
carry forward the principle that the whole of an award of damages for
non-pecuniary loss should attract interest throughout the period preceding
judgment.

[23]        
Despite this recommendation, in 1993 the Legislature did bring in s. 2(e).
The restriction they placed on the exclusion of non-pecuniary judgments from
interest was simply to apply it only to damages “arising from personal injury
or death”. Section 1(4) also uses the term “personal injury”. That section
deals with the compensation for loss of income through collateral benefits,
such as disability insurance. However, there is no language in either section
restricting the meaning of “personal injury” to physical injury.

[24]        
I therefore conclude that the term “personal injury” in s. 2(e) of
the Act includes both physical and mental injuries.

[25]        
The next question to be addressed is whether the award for general
damages can be seen as “arising from personal injury”, as that phrase is
found in the Act.

[26]        
General damages can be awarded for intangible losses such as pain and
suffering and mental distress, which are, literally, injuries to one’s person.
This would include damages in breach of contract cases, without an independent
tort, such as in the “holiday” cases, where the contract is for a non-economic
benefit. In those cases general damages may be awarded, under expectation
damages, for “disappointment, the distress, the upset and frustration caused by
the breach.” (Cassels, 226). General damages may also be awarded for
loss of amenity and loss of enjoyment of property.

[27]        
In defamation cases, where general damages have been awarded for injury
to reputation, the courts have ordered interest on those general damages: e.g. Manno
v. Henry, 2008 BCSC 738; Wilson v Switlo, 2011 BCSC 1287. In Manno,
Mr. Justice Grauer of this Court held at para. 213:

213      Although these damages
are non-pecuniary in nature, their award nevertheless constitutes a pecuniary
judgment within the meaning of s. 1(1) of the Court Order Interest Act,
R.S.B.C. 1996, c. 79, and they do not arise from personal injury or death
within the meaning of s. 2(e) of that Act. Accordingly, the
plaintiffs are entitled to interest from the date on which their cause of
action arose to the date of this judgment.

[28]        
This result would appear to me to reflect the view of the courts that injury
to reputation is not to be equated with injury to one’s person in the sense
that physical injury or emotional or mental injury are injury to one’s person.

[29]        
In this case, the injury that I have found Mr. Dhillon suffered was
injury to his person in the form of mental distress. The mental distress was,
in my view, undoubtedly “personal injury” and that was what gave rise to the
award of damages. To the extent that Mr. Jaffer by his negligence
contributed to that personal injury I found him responsible for a portion of
the damages.

[30]        
On behalf of Mr. Dhillon, Mr. Jaffe argued that a general
damage award cannot be characterized as a personal injury award in that
personal injury was never pleaded. However there is, strictly speaking, no such
thing as a “personal injury case”, just court cases where the damage
demonstrated is to the person. Mr. Dhillon’s action against
Mr. Jaffer was framed, in part, in tort. It was the tort of solicitor’s
negligence, his breach of the duty of care he owed to Mr. Dhillon as a
non-client, that the Court of Appeal found gave rise to the damages I assessed.
One of the consequences of Mr. Jaffer’s negligence, I found, was the
mental anguish suffered by Mr. Dhillon. It was by that path that causation
was established, and for that reason the general damages were awarded.

[31]        
In the result, I am satisfied that the general damages that I awarded to
Mr. Dhillon can properly be said to have arisen from personal injury. As a
consequence, interest on that portion of my award to him is excluded pursuant
to s. 2(e) of the Act.

B.       Loss of Opportunity

[32]        
Again, to assist, I repeat a portion of my original judgment that dealt
with this award:

52.       In the result,
I consider that Mr. Dhillon did indeed lose an opportunity to invest
in the Vancouver real estate market before 2005 as a consequence of not having
been made aware sooner of the availability to him of the proceeds of sale in
September 1993.  But I discount the availability to him of a fund to
invest by 50%, given the contingencies noted above.  That is, it is my judgment
that the funds he would have had to invest would likely have been smaller than
$187,200 given the very significant potential of Ms. Dhillon being
successful in an FRA claim, a claim that likely would have taken some
time to resolve while, in the meantime, the prices of real estate would have
risen.  Mr. Dhillon presented himself as a man who was not wealthy.  This
is borne out by the manner in which he lived, including the type of housing in
which he and his children resided during the fraud action and up to 2008 when
he got possession of the 52nd Avenue property.  But he did subsequently manage
to re-mortgage that property to another bank so he qualified for that.

[33]        
As noted earlier, this award is a pecuniary judgment. In the case of
this award, however, I find that it does not fall under any of the exclusionary
headings in s. 2 of the Act. This is an example where the plaintiff
has been kept out of his money. At para. 53 of my reasons, I did say that
the claim for loss of opportunity did not arise until 1995, the date that a possible
Family Relations Act proceeding would have been completed. Thus it is
not unreasonable to say that the cause of action relating to this part of Mr. Dhillon’s
claim arose in 1995 rather than in 1993. As in my original reasons I did not
state a specific date in 1995, I would now say that court order interest on
this portion of the damages I awarded should be calculated from January 1,
1995.

II.       CONCLUSION

[34]        
I conclude that:

1.     Mr. Dhillon
is entitled to court order interest at Registrar’s rates on the sum of $5,000
awarded for loss of opportunity from January 1, 1995.

2.     Mr. Dhillon
is not entitled to court order interest of the sum of $40,000 I awarded for
general damages.

[35]        
Counsel may speak to the issue of costs arising from this application
when they address costs of the action generally at a later date.

“Melnick
J.”