COURT OF APPEAL FOR
    ONTARIO

CITATION:
Carrigan v. Carrigan
    Estate, 2012 ONCA 736

DATE: 20121031

DOCKET: C53306

Juriansz, LaForme and Epstein JJ.A.

BETWEEN

Mary Melodee Dianne Carrigan

Plaintiff (Appellant)

and

Melodee Carrigan, in her capacity as Executrix
    and Trustee of the Estate of Ronald Leo Anthony Carrigan, deceased, William
    Smith, alternate Executor and Trustee of the Estate of Ronald Leo Anthony
    Carrigan, deceased and Jennifer Margaret Quinn

Defendants (Respondents)

Rodney Godard and Daniel Ableser, for the appellant

R.G. Colautti and Kathleen Montello, for the respondent Jennifer
    Quinn

Heard: April 16, 2012

On appeal from the judgment of Justice Mary J. Nolan of
    the Superior Court of Justice, dated January 24, 2011, with reasons reported at
    2011 ONSC 585.

Juriansz
    J.A.:

A.

Introduction

[1]

This appeal concerns a pure question of law: who
    receives the pension death benefit when the member of a pension plan entitled
    to a deferred pension dies and is survived by both a common law spouse
[1]
with whom he
    resided at the time of death and a legally married spouse from whom he was
    separated but whom he designated a beneficiary of his pension plan? The outcome
    turns on a proper interpretation of s. 48 of the
Pension Benefits Act
, R.S.O. 1990, c. P.8 (
PBA
), which addresses who is
    entitled to a pension plan members pre-retirement death benefit.

[2]

The trial judge dismissed the action of the legally
    married spouse for a declaration that she was entitled to her husbands
    pre-retirement death benefit under s. 48 of the
PBA
. The
    trial judge found that the common law spouse was entitled to the death benefit.
    The trial judge also dismissed the legally married spouses unjust enrichment
    and constructive trust claims.

[3]

I would allow the appeal and issue a declaration
    that the legally married spouse and her two daughters are entitled to the members
    pre-retirement death benefit as his designated beneficiaries under s. 48(6) of
    the
PBA
.

B.

Facts

[4]

The appellant, Melodee Carrigan, married Ronald
    Carrigan in 1973. The pair remained legally married until his unexpected death
    on June 4, 2008, at the age of 57. His will, made in 1986, named her as his
    estate trustee as well as the sole beneficiary of the residue of his estate,
    after two bequests to their two daughters. In 2002, Mr. Carrigan designated
    Mrs. Carrigan and their daughters as the beneficiaries of the death benefit in
    his pension plan.

[5]

The trial judge found that the Carrigans probably
    separated in 1996, and that they were definitely separated by January 2000, by
    which time Mr. Carrigan was living openly with the respondent, Jennifer Quinn.
    Mr. Carrigan continued to live with Ms. Quinn until his death. Mrs. Carrigan
    remained living in the matrimonial home. All of her living expenses were paid
    by Mr. Carrigan until the day he died. The Carrigans never formalized their
    separation by a separation agreement or a court order.

[6]

Mrs. Carrigan and Ms. Quinn both claim the death
    benefit of Mr. Carrigans pension under s. 48 of the
PBA
.

[7]

Section 48, at the relevant time, provided:

Pre-retirement death benefit

48.(1) If a member or former member of a pension plan who is
    entitled under the pension plan to a deferred pension described in section 37
    (entitlement to deferred pension) dies before commencement of payment of the
    deferred pension, the person who is the spouse of the member or former member
    on the date of death is entitled,

(a) to receive a lump sum payment equal to the commuted value
    of the deferred pension; or

(b) to an immediate or deferred pension the commuted value of
    which is at least equal to the commuted value of the deferred pension.

Idem

(2) If a member of a pension plan continues in employment after
    the normal retirement date under the pension plan and dies before commencement
    of payment of pension benefits referred to in section 37, the person who is the
    spouse of the member or former member on the date of death is entitled,

(a) to receive a lump sum payment equal to the commuted value
    of the pension benefit; or

(b) to an immediate or deferred pension the commuted value of
    which is at least equal to the commuted value of the pension benefit.

Application of subs. (1, 2)

(3) Subsections (1)
    and (2) do not apply where the member or former member and his or her spouse
    are living separate and apart on the date of the death of the member or former
    member.

Designated beneficiary

(6) A member or former member of a pension plan may designate a
    beneficiary and the beneficiary is entitled to be paid an amount equal to the
    commuted value of the deferred pension mentioned in subsection (1) or (2) if,

(a) the member or former member does not have a spouse on the
    date of death; or

(b) the member or former member is living separate and apart
    from his or her spouse on that date.

Estate entitlement

(7) The personal representative of the member or former member
    is entitled to receive payment of the commuted value mentioned in subsection
    (1) or (2) as the property of the member or former member, if the member or
    former member has not designated a beneficiary under subsection (6) and,

(a) does not have a spouse on the date of the member or former
    members death; or

(b) is living separate and apart from his or her spouse on that
    date.

[8]

The statutory definition of spouse is central to
    the determination of the competing claims in this case. Section 1 of the
PBA
provides:

spouse means, except where otherwise indicated in this Act,
    either of two persons who,

(a) are married to each other, or

(b) are not married to each other and are living together in a
    conjugal relationship,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the
    natural or adoptive parents of a child, both as defined in the Family Law Act;
    (conjoint)

C.

Decision of the Trial Judge

[9]

The trial judge was called upon to determine a
    number of factual disputes between the parties. Mrs. Carrigan argued that she
    and Mr. Carrigan never separated, leading evidence of his frequent presence at
    the family home and his continued participation in family events. In the
    alternative she contested the date of separation advocated by Ms. Quinn. The
    trial judge had to resolve these factual issues because Mrs. Carrigans primary
    position at trial was that she was entitled to Mr. Carrigans death benefit as
    his spouse under s. 48(1).

[10]

The trial judge found that at the time of Mr.
    Carrigans death the statutory definition of spouse applied to both Mrs.
    Carrigan and Ms. Quinn. She reasoned that Mrs. Carrigan is a spouse because
    she was legally married to Mr. Carrigan, and that Ms. Quinn is a spouse
    because she was living with Mr. Carrigan in a conjugal relationship and she had
    done so continuously for more than three years prior to his death.

[11]

The trial judge noted that s. 48(1) refers to the
    spouse and concluded there could only be one spouse entitled to a members
    death benefit. Therefore the benefit could not be split between the two women
    who both qualified as a spouse of Mr. Carrigan.

[12]

The trial judge resolved the conundrum this
    presented by focusing on s. 48(3) of the
PBA
. She
    understood s. 48(3) to require that a spouse be living with the member in order
    to be entitled to the death benefit. She found as a fact that Mr. and Mrs.
    Carrigan were living separate and apart at the time of death and that therefore
    Mrs. Carrigan was not eligible to receive the death benefit. The trial judge
    went on to hold that Ms. Quinn was entitled to receive the death benefit because
    she was a spouse and was living with Mr. Carrigan at his death.

[13]

The trial judge rejected the other argument made by
    counsel for Mrs. Carrigan, namely, that Mr. Carrigans designation of Mrs.
    Carrigan and their two daughters as the pension beneficiaries should mean that
    Mrs. Carrigan and her daughters were entitled to receive the benefit under s.
    48(6). The trial judge read s. 48(6) to apply only when there is no eligible
    spouse, and since Ms. Quinn counts as a spouse in this circumstance, the
    designation under s. 48(6) is irrelevant.

[14]

The trial judge reasoned, at para. 52:

The member who dies before being entitled to payment of his pension
    can only have one spouse on the day he died, the spouse, and the entitlement
    to receive the death benefit as a spouse can only be reasonably interpreted to
    be the person who meets one of the requirements in the s. 1 definition of
    spouse as well as the requirement found in s. 48(3) that the spouse and the
    member cannot be living separate and apart on the day of the member's death.
    There is, therefore, only one person who meets the requirements of both s. 1
    and s. 48 of the
Pension Benefits Act
as well as the definition of spouse
    in the pension plan itself: that is Ms. Quinn.

[15]

The trial judge also rejected Mrs. Carrigans
    claims that she should be able to recover the death benefit under a resulting
    or constructive trust or unjust enrichment theory.

D.

Analysis

[16]

On appeal, the primary matter contested is the
    trial judges conclusion that Ms. Quinn was entitled to the death benefit as
    the spouse under s. 48(1) of the
PBA
, rather than Mrs.
    Carrigan and her daughters as the designated beneficiaries under s. 48(6).

[17]

This appeal is entirely an exercise in statutory
    interpretation that begins with the statutory definition of spouse. The
    definition opens by stating that a spouse is either of two persons who are
    married to each other, or who are not married to each other but satisfy other
    criteria. The two persons referred to are the pension member and the person
    with whom the member is in a spousal relationship. The word either in the
    definition should not be misread to refer to a legally married spouse on the
    one hand and a common law spouse on the other. The PBA definition of spouse is
    unlike the definition of spouse in s. 29 of Part III of the Family Law Act,
    R.S.O. 1990, C. F.3 , which includes a common law spouse in addition to a
    spouse as defined in s. 1(1) of the Family Law Act.

[18]

The appellant argues that the definition implies
    that if a member has a legally married spouse, he or she cannot have a common
    law spouse. According to the definition, spouse means either of two
    persons. Since one of the two persons is the pension member, only one other
    person can be a members spouse. Once two persons satisfy paragraph (a) of the
    definition because they are legally married to each other, there is no need to
    consider whether the two persons can qualify as spouses without being married. The
    appellant reads the definition to say that spouse means either of two persons
    who are married to each other, or
if not legally married
are
    living together in a conjugal relationship. Reading the definition in this way,
    the appellant argues that only Mrs. Carrigan qualifies as a spouse for the
    purposes of the
PBA
, and that Ms. Quinn is not Mr. Carrigans
    spouse under the
PBA
. Therefore Ms. Quinn should not receive the
    death benefit as Mr. Carrigans spouse, under s. 48(1).

[19]

The respondent argues that the definition should be
    read as the trial judge did  that the wording captures both legal and common
    law spouses. For the purposes of the
PBA
multiple persons can
    qualify as the members spouse, and a legally married spouse does not take
    precedence over a common law spouse. In this case, both Mrs. Carrigan and Ms.
    Quinn qualify as a spouse of Mr. Carrigan. Under this interpretation, the
    respondent argues that the
PBA
would award the death benefit
    to whichever spouse was cohabitating with the pension member at death. The
    respondent submits that s. 48(3) makes this clear, disentitling a spouse living
    separate and apart from the member on the date of the members death from taking
    the death benefit.

[20]

Both these competing conceptions of the statutory
    definition pose difficulties. On one hand, if both Mrs. Carrigan and Ms. Quinn
    are considered to be Mr. Carrigans spouses, there would be three spouses
    (including Mr. Carrigan) and the definition stipulates that a spouse is either
    of two persons. On the other hand, the statutory definition does not indicate
    that the legal relationship described in paragraph (a) takes priority over the
    common law relationship described in paragraph (b).

[21]

Fortunately, it is not necessary to resolve the
    parties competing conceptions of the statutory definition in order to apply s.
    48 in this case. Both conceptions lead to the same result. I proceed to conduct
    the analysis on the basis of each partys position in turn.

[22]

I first assume that the trial judge and the
    respondent are correct that both Mrs. Carrigan and Ms. Quinn qualify as Mr.
    Carrigans spouse for the purposes of s. 48 of the
PBA
.

[23]

On this assumption, I turn to s. 48. Section 48 regulates
    what happens when the member or former member of a pension plan dies before
    commencement of payment of a deferred pension. The purpose of s. 48 is to require
    that a benefit at least equal to the commuted value of the deferred pension be
    paid to the members spouse, to the members designated beneficiary, or to the
    members estate representative.

[24]

Section 48(1) gives statutory priority to the
    members spouse. When s. 48(1) is engaged, it applies even if the member has
    designated a beneficiary as envisaged by s. 48(6) or dies intestate as
    envisaged by s. 48(7). Given the assumption that both Mrs. Carrigan and Ms.
    Quinn are spouses, we encounter difficulty in applying s. 48(1): while the
    statutory priority is in favour of the spouse of the member, here the member
    has two spouses.

[25]

The canons of statutory interpretation require that
    the statutory provision being interpreted be considered in the context of the
    statute as a whole. Considering s. 48(1) in context, it is readily apparent
    that it does not apply in all circumstances. Section 48(3) defines a situation
    in which s. 48(1) does not apply. It states that [s]ubsection (1)  [does] not
    apply where the member or former member and his or her spouse are living
    separate and apart on the date of the death of the member or former member. In
    other words, when the member and his or her spouse are living separate and
    apart when the member dies, s. 48(1) does not apply, and therefore there is no
    statutory direction that the death benefit be paid to the members spouse.

[26]

The trial judge regarded s. 48(3) as imposing a
    requirement that the spouse and the member cannot be living separate and
    apart on the day of the members death in order for a spouse to receive the
    death benefit. She made much of the fact that Ms. Quinn was living with Mr.
    Carrigan at the date of his death. Thus, she was convinced that Ms. Quinn
    satisfied s. 48(3)s requirement. However, on its face, s. 48(3) does not
    impose a requirement; rather, it sets out a circumstance that makes s. 48(1)
    inapplicable. The trial judge erred by applying s. 48(1) when the circumstance
    contemplated by s. 48(3) existed.

[27]

The circumstance contemplated by s. 48(3) existed
    because Mr. Carrigan and Mrs. Carrigan were living separate and apart at the
    time of his death. Given the assumption on this leg of the analysis that the
    word spouse in s. 48(3) may mean either Ms. Quinn or Mrs. Carrigan, it is
    enough that Mrs. Carrigan satisfies the circumstance in s. 48(3). Mrs. Carrigan
    triggers the application of s. 48(3) as she, a spouse, was living separate and
    apart from Mr. Carrigan on the date of his death.

[28]

In fact, it is apparent that the word spouse in
    s. 48(3) must always refer to the legally married spouse. Under the
PBA
it makes no sense to conceive of a common law spouse living separate and apart
    from the member. While a person may be a common law spouse in other contexts,
    only a legally married spouse can live separate and apart from the member and
    still be a spouse under the
PBA
. That is because paragraph (b)
    of the statutory definition applies to two persons not legally married who are
    living in a conjugal relationship. The circumstance contemplated by s. 48(3)
    that the member and his or her spouse are living separate and apart on the date
    of the death  can only be satisfied by the legally married spouse.

[29]

To make this clearer, consider a hypothetical
    statute that has a dual definition of the term person that provides that a
    person means either a man or a woman. However, if the term pregnant
    person is employed in a particular provision of the statute, that particular
    provision could only refer to a woman even though person could mean either
    a man or a woman in other provisions. The particular provision would have to be
    interpreted and applied to mean a woman. In the same way, the term spouse living
    separate and apart from the member must necessarily connote the legally
    married spouse of the member. In the context of the
PBA
, it is
    not possible for a common law spouse to be living separate and apart from the
    member any more than a man can be pregnant.

[30]

Consequently, even if one assumes the definition of
    spouse encompasses both Mrs. Carrigan and Ms. Quinn, only Ms. Carrigan could
    be the spouse referred to in s. 48(3). Since the circumstance contemplated by
    s. 48(3) exists, s. 48(1) is rendered inapplicable. Since s. 48(1) is
    inapplicable, the difficulty in applying the spousal priority falls away. When
    s. 48(1) does not apply, there is no provision that the spouse of the member
    is entitled to the death benefit. As there is no spousal entitlement, the
    members designated beneficiary is entitled to the death benefit under s. 48(6)
    of the
PBA
.

[31]

Section 48(6) provides that the designated
    beneficiary is entitled to the death benefit if either of two circumstances exists.
    Either, the member does not have a spouse on the date of death; or, the member
    is living separate and apart from his or her spouse on that day. The structure
    of s. 48(6) indicates that the existence of either circumstance triggers the
    application of the subsection. The same reasoning employed in regard to s.
    48(3) applies to the second circumstance in s. 48(6). Mr. and Mrs. Carrigan
    were living separate and apart on the date of his death. The second
    circumstance in s. 48(6) exists and the application of the section is
    triggered. Therefore, s. 48(6) is triggered and the designated beneficiaries are
    entitled to Mr. Carrigans death benefit.

[32]

The result is that neither Mrs. Carrigan nor Ms.
    Quinn is entitled to the pension benefit as a spouse. Rather Mrs. Carrigan and
    her two daughters are entitled to Mr. Carrigans death benefit as his
    designated beneficiaries.

[33]

I next analyse the situation by assuming the
    appellant is correct about the interpretation of the statutory definition and
    the legally married spouse is the sole spouse. In that scenario, s. 48(1)
    refers to Mrs. Carrigan. However, s. 48(3) still applies as Mr. and Mrs.
    Carrigan were living separate and apart at his death. Section 48(3) makes s.
    48(1) inapplicable. As well, the second circumstance in s. 48(6) exists, the
    application of s. 48(6) is triggered, and the result is that Mrs. Carrigan and
    her two daughters are entitled to Mr. Carrigans death benefit as his
    designated beneficiaries.

[34]

Therefore, under both the appellants and the
    respondents understanding of the statutory definition, the statute provides
    that Mrs. Carrigan and her two daughters are entitled to the death benefit as
    the designated beneficiaries under s. 48(6).

[35]

In light of this conclusion, it is not necessary to
    deal with Mrs. Carrigans other claims.

[36]

I have had the opportunity to consider the reasons
    of my colleague LaForme J.A., but, with respect, I do not find them persuasive.
    Had the drafters desired the result my colleague reaches with his
    interpretation, they could simply have included the words and living with in
    s. 48(1) and dispensed with s. 48(3) entirely. That is, section 48(1) could
    have been easily drafted to read:

If a memberdies before commencement of payment of the deferred
    pension, the person who is the spouse of
and living with
the memberon
    the date of death is entitled to[the death benefit].

[37]

Instead, the drafters deliberately chose to include
    a separate provision at section 48(3), which makes s. 48(1) entirely
    inapplicable.

[38]

It seems to me that the analysis he suggests reads
    s. 48(3) as if it provides that s. 48(1) does not apply to the spouse to who
    s. 48(3) applies.  I, on the other hand, read the words of s. 48(3) to provide
    that when it applies s. 48(1) does not apply. I see no words in s. 48(3) to
    indicate that s. 48(1) does not apply only
to the spouse
that triggers
    s. 48(3), leaving room for it to apply to another spouse. My earlier
    observation that the word spouse in s. 48(3) must always refer to a legally
    married spouse--an observation I consider indisputableis not a necessary component
    of my analysis. It matters not that Ms. Quinn does not trigger the application
    of s. 48(3), when Mrs. Carrigan does.

[39]

Moreover, I see no particular policy rationale for
    interpreting the
PBA
to provide unequivocally that in all
    circumstances where there is a legally married spouse and a common law spouse,
    the common law spouse is entitled to the members death benefit. Given the
    diversity of possible relationships, it is more desirable to interpret the
    statute to allow pension members the freedom to order their affairs in a way
    that suits their particular circumstances.

[40]

As I read it, the
PBA
does
    not presume that property division following marriage breakdown is completed until
    divorce. A member with a legally married spouse, but living apart from that
    spouse, may arrange his or her own affairs by designating a beneficiary to
    receive the pension under s. 48(6).

[41]

In this case, Mr. Carrigan never advised the
    pension plan that he was living with Ms. Quinn. He designated his wife and
    daughters as beneficiaries of his pension some years after he started to live
    with Ms. Quinn. In my view, the structure of the
PBA
left it
    to him to decide how his pension, the value of which he accumulated over his
    entire working career, was to be distributed.

E.

Conclusion

[42]

For these reasons, I would allow the appeal, set
    aside the judgment of the trial judge and replace it with a declaration that
    Mrs. Carrigan and the daughters of Mr. Carrigan are entitled to his pension
    death benefit, pursuant to s. 48(6) of the
PBA
.

[43]

I would fix the appellants costs of the appeal in
    the amount of $20,000.00 inclusive of disbursements and HST.

[44]

I would set aside the trial judges disposition of
    the costs of the trial. If they are unable to agree, I would leave it to the
    parties to make written submissions regarding the costs of the trial on a
    schedule set by the courts Senior Legal Counsel.

R.G. Juriansz J.A.

H.S.
    LaForme J.A (Dissenting):

INTRODUCTION

[45]

When Mr. Carrigan died suddenly in 2008, he was living in a common law
    relationship with Ms. Quinn.  He had separated from, but remained legally
    married to, Mrs. Carrigan.  At issue in this case is the interpretation of s.
    48 of the
Pension
    Benefits Act
, R.S.O. 1990, c. P.8 (the PBA), which
    deals with entitlement to death benefits, and the definition of spouse in s.
    1 of the PBA.

[46]

Mr. Carrigan married Mrs. Carrigan in 1973 and they
    had two daughters.  She was named in Mr. Carrigans will in 1986 as the estate
    trustee as well as the sole beneficiary of the residue of his estate after two small
    bequests to his daughters.   She remained living in the jointly owned
    matrimonial home and all of whose expenses were paid by Mr. Carrigan up to the
    day he died.

[47]

Ms. Quinn met Mr. Carrigan in 1996 and they began
    living in a conjugal relationship no later than January 2000.  They lived
    together in a condominium jointly owned by Mr. Carrigan and Mrs. Carrigan as
    joint tenants.  Ms. Quinn and Mr. Carrigan were living together on the day he
    died.

[48]

The trial judge dismissed Mrs. Carrigans action for a declaration that
    she was entitled to Mr. Carrigans pre-retirement death benefits.  She held
    that under s. 48 of the PBA, it is Ms. Quinn who is entitled to the benefit
.
The trial judge also dismissed Mrs. Carrigans unjust enrichment and
    constructive trust claims.

[49]

I have read my colleagues reasons and must respectfully disagree with
    certain aspects of his analysis and his final conclusion.  In particular, I
    disagree with my colleague that Mrs. Carrigan, because she is a married spouse,
    triggers the application of s. 48(3) such that Ms. Quinn is denied a death
    benefit under s. 48(1) and the benefit goes to Mrs. Carrigan and her two
    daughters as designated beneficiaries.

[50]

Before commenting on some of my colleagues decision,
    I propose to briefly review the decision below and explain my reasons for
    agreeing with the trial judges conclusion that Ms. Quinn is entitled to the s.
    48(1) death benefit.

THE TRIAL JUDGES ANALYSIS

[51]

The trial judge rejected the interpretation of s. 48
    put forward by Mrs. Carrigan at para. 52 of her reasons:

The wording of the s. 1 definition of spouse captures both
    Mrs. Carrigan and Ms. Quinn.  Section 48(1) and (3) are clear and unambiguous
    in their language.  The member who dies before being entitled to payment of his
    pension can only have one spouse on the day he died, the spouse, and the
    entitlement to receive the death benefit as a spouse can only be reasonably
    interpreted to be the person who meets one of the requirements in the s. 1
    definition of spouse as well as the requirement found in s. 48(3) that the
    spouse and the member cannot be living separate and apart on the day of the
    members death.  There is, therefore, only one person who meets the
    requirements of both s. 1 and s. 48 of the
Pension Benefits Act
as
    well as the definition of spouse in the pension plan itself: that is Ms.
    Quinn.

ANALYSIS

[52]

The Supreme Court of Canada has endorsed the following modern approach
    to statutory interpretation
in a number of cases,
    including
Bell
    Expressvu v. Rex
, [2002] 2 S.C.R. 559, at para. 26:

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.

[53]

The Supreme Court described the overall purpose of
    the PBA in
Monsanto Canada Inc. v. Superintendent of Financial Services
,
    [2004] 3 S.C.R. 152, at para. 38:

The Act is public policy legislation that recognizes the vital
    importance of long-term income security.  As a legislative intervention in
    the administration of voluntary pension plans, its purpose is
to establish minimum standards
and regulatory supervision in order
to
    protect and safeguard the pension benefits and rights of members, former members
    and others
entitled to receive benefits under private pension
    plans [Emphasis added.]

[54]

Section 48 stipulates what happens when a current, former or retired member
    of a pension plan dies before commencement of payment of a deferred pension.
    It requires that a benefit at least equal to the commuted value of the deferred
    pension be paid to the members spouse, to the members designated beneficiary,
    or to the members estate representative.

[55]

In effect, s. 48 sets out a priority scheme for determining who is
    entitled to the death benefit.  Section 48(1) gives statutory priority to the
    members spouse at the date of death, provided the spouse has not waived his or
    her entitlement to the death benefit and is not otherwise disentitled to the
    benefit by virtue of s. 48(3), which I will discuss more below.

[56]

While the term spouse may have different meanings in different contexts,
    s. 1 of the PBA defines spouse as follows:

spouse means, except where otherwise indicated in this Act,
    either of two persons who,

(a) are married to each other, or

(b) are not married to each other and are living together in a
    conjugal relationship,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the
    natural or adoptive parents of a child, both as defined in the
Family Law
    Act
;

[57]

This definition is important for purposes of the PBA because spouses of
    current, former and retired pension plan members are entitled to certain
    benefits under the Act.  Thus, in assessing entitlements in a particular case,
    it is important to determine whether the person in question has a spouse.

[58]

The s. 1 definition of spouse includes two types of spouses: those
    who are married and those who are in common law relationships.  The definition
    does not give married spouses priority over common law spouses.

[59]

On a plain reading of the two-pronged definition, there is nothing that
    precludes a member from being in a spousal relationship with more than one
    person at a time.

[60]

The definition, which uses the phrase either of two persons, makes
    clear that one must look at the relationship between the two persons in
    question to determine whether the definition of spouse is met.  It does not, in
    my view, preclude the possibility that a person may be a spouse in relation to
    two different persons.

[61]

For instance, in this case, Mrs. Carrigan is a spouse in relation to
    Mr. Carrigan, as she is one of two persons who are married to one another.  Ms.
    Quinn is also a spouse in relation to Mr. Carrigan and she is one of two persons
    who lived together continuously in a conjugal relationship for more than three
    years.

[62]

While it is legally impossible to be married to two
    different people at the same time, I do not see anything in the PBA to suggest
    that a person cannot have a married spouse and a common law spouse at the same
    time.  Also, since I imagine situations like the one in this case are not
    uncommon, I would expect that the drafters of the PBA turned their mind to its
    possibility and drafted accordingly.

[63]

Accepting that both Mrs. Carrigan and Ms. Quinn are
    spouses for the purpose of the Act, the question is how s. 48 applies.

[64]

Section 48.(1) provides:

48.(1)  If
    a member who is entitled under the pension plan to a deferred pension described
    in section 37 dies before payment of the first instalment is due, or if a
    former member or retired member dies before payment of the first instalment of
    his or her deferred pension or pension is due
, the person who is his or her spouse on the date of
    death
is entitled,

(a) to receive a lump sum payment equal to the commuted value
    of the deferred pension;

(b) to require the administrator to pay an amount equal to the
    commuted value of the deferred pension into a registered retirement savings
    arrangement; or

(c) to receive an immediate or deferred pension, the commuted
    value of which is at least equal to the commuted value of the deferred pension.
    [Emphasis added.]

[65]

While s. 48(1) could have provided that a
    married spouse takes priority over a common law spouse in the event that there
    are both kinds of spouse, the section does not do that.  Rather, it refers to
    the person who is the members spouse on the date of death.

[66]

However, not every spouse is entitled to death benefits.  Section 48(3)
    specifies that the spouse must not be living separate and apart on the date of
    death for s. 48(1) to apply:

48.(3)  Subsections (1) and (2) do not apply where
    the member, former member or retired member and his or her spouse are living
    separate and apart on the date of death.

[67]

Section 48(6) and s. 48(7) reiterate that a
    members spouse, if any, will have priority to receive the death benefit under
    s. 48(1), provided that the spouse is not living separate and apart from the
    member on the date of the members death:

48.(6)  A member, former member or retired member
    described in subsection (1) may designate a beneficiary and the beneficiary is
    entitled to be paid an amount equal to the commuted value of the deferred
    pension mentioned in subsection (1) or (2),

(a) if the member, former member or retired member does not
    have a spouse on the date of death; or

(b) if
    the member, former member or retired member is living separate and apart from
    his or her spouse on the date of death
.

48.(7)  The personal representative of a member,
    former member or retired member described in subsection (1) is entitled to
    receive payment of the commuted value mentioned in subsection (1) or (2) as the
    property of the member, former member or retired member if he or she has not
    designated a beneficiary under subsection (6) and,

(a) does not have a spouse on the date of death; or

(b) is
    living separate and apart from his or her spouse on the date of death.
[Emphasis
    added.]

[68]

It is a basic principle of statutory interpretation that the same words
    should be given a consistent meaning throughout a statute:
R. v. Zeolkowski
, [1989] 1   S.C. R. 1378, at p. 1387; Ruth Sullivan,
Sullivan on the Construction
    of Statutes
, 5th ed. (Markham: LexisNexis Canada
    Inc., 2008), at pp. 215-216.

[69]

As noted above, spouse can have one of two meanings under the PBA:
    either a married or a common law spouse.  To read it as having only one meaning
    in s. 48(3) -  that of a married spouse  would be to give spouse a different
    and more restrictive meaning under s. 48(3) than under s.1.

[70]

Applying s. 48(3) on the facts of this case, Mrs. Carrigan is not
    entitled to benefits under s. 48(1).  While she qualified as a spouse on the
    date of death, she was living separate and apart from Mr. Carrigan on the
    relevant date.  Accordingly, s. 48(1) does not apply with regard to Mrs.
    Carrigan.

[71]

Ms. Quinn was also a spouse on the date of death, since she had been
    living with Mr. Carrigan continuously for a period of not less than three years.
     And, on the date of death, she was not living separate and apart from Mr.
    Carrigan.  Accordingly, she is not disqualified from receiving the death
    benefit by virtue of s. 48(3).

[72]

This result is consistent with the evident purpose of s. 48, which is
    to provide a priority scheme for death benefits  a priority scheme that gives priority
    to spouses, as broadly defined under the PBA, who are not living separate and
    apart on the date of death, unless the spouse has made a choice to waive the
    death benefit.

[73]

This result is also consistent with the wording of s. 48(6).  Section
    48(6) provides that a designated beneficiary is entitled to the death benefit
    only if the member has no spouse on the date of death or if the member is
    living separate and apart from his or her spouse on the relevant date.  To
    conclude that Mrs. Carrigan and her daughters are entitled to the death benefit
    is at odds with s. 48(6), since Mr. Carrigan did have a spouse on the date of
    death  Ms. Quinn - and Ms. Quinn was not living separate and apart from him.

COMMENTS CONCERNING MY COLLEAGUES INTERPRETATION

[74]

While I agree with a number of aspects of my colleagues analysis, it
    is evident that my analysis differs from his in a number of respects.

[75]

First, I am prepared to conclude that, for purposes of the PBA, it is
    possible for a person to have two spouses at the same time.

[76]

Second, my colleague takes issue with the trial judges comment that s.
    48(3) imposes a requirement that the spouse and the member cannot be living
    separate and apart on the day of the members death in order for a spouse to
    receive the death benefit.  In my colleagues view, s. 48(3) sets out a
    circumstance - not a requirement - that makes s. 48(1) inapplicable, and so the
    trial judge was in error.

[77]

I disagree.  Whether s. 48(3) is described as
    imposing a requirement or it sets a circumstance that makes s. 48(1)
    inapplicable, it amounts to the same thing.  In my respectful view, nothing
    turns on the distinction.  For a spouse to be entitled to receive a benefit
    under s. 48(1), he or she cannot be living separate and apart from the member
    on the date of death.  In this case, Mrs. Carrigan was while Ms. Quinn was
    not.

[78]

Third, my colleague appears to conclude that because Mrs. Carrigan
    triggers the non-application of s. 48(1), the non-application is in
    connection with any spouse, including Ms. Quinn.

My colleagues conclusion that s.
    48(1) does not apply since Mrs. Carrigan engages s. 48(3) appears to flow from his
    observation at, para. 30, that it is apparent that the word spouse in s.
    48(3) will always mean the legally married spouse.

[79]

As I have explained, to read spouse to mean only a married spouse
    in the context of s. 48(3) is to give the same term a different meaning
    throughout the PBA.

[80]

Accordingly, as I read s. 48(3), it provides that a spouse - either
    married or common law - will not be entitled to the s. 48(1) death benefit if he
    or she lived separate and apart from the member on the members date of death.  In
    other words, while married and common law spouses may, in other legal contexts,
    continue to have certain legal rights even if they are living separate and
    apart - for instance, the right to support under the
Family Law Act
, R.S.O. 1990, c. F.3  s. 48 makes it clear that living separate and
    apart on the date of death precludes a spouse from receiving a death benefit
    under s. 48(1).

[81]

Even if one accepts  that s. 48(3) never applies to common law spouses,
    it is difficult to see how s. 48(3) then disqualifies a common law spouse from
    receiving the benefit under s. 48(1).

[82]

For these reasons, I disagree that the term spouse in s. 48(3) will
    always mean the legally married spouse such that if there is a married
    spouse, and the married spouse is living separate and apart on the date of
    death, a common law spouse will not be entitled to the death benefit under s.
    48(1).  Accordingly, I would dismiss the appellants s. 48 ground of appeal.

OTHER GROUNDS

[83]

Mrs. Carrigan advances other grounds of appeal that are essentially
    founded on her position that it would be manifestly unfair to her and the two
    daughters to award Ms. Quinn the death benefit.  These other grounds include
    claims of unjust enrichment and the application of common law and equitable
    remedies.  I would not give effect to any of these grounds of appeal.  I am
    satisfied that the trial judge adequately addressed these arguments.

[84]

In sum, I am of the view that the express provisions of
s. 48
of the PBA displace the
    common law.  The common law, including the principles of equity and equitable
    remedies, is subordinate to this legislation.  By enacting an exhaustive set of
    rules dealing with pensions, the legislature has occupied the field and
    precluded recourse to the common law as argued by Mrs. Carrigan.

[85]

Accordingly, I would dismiss the remaining grounds
    of appeal.

FINAL COMMENTS

[86]

In my view, the result in this case is dictated by a proper
    interpretation of s. 48 of the PBA and the s. 1 definition of spouse.  However,
    as an aside, I would note that the trial judges reasoning and decision in this
    case do not produce an inequitable result for Mrs. Carrigan.  The PBA provides
    a detailed scheme for handling the claims of divorced or separated spouses, and
    s. 48(13) allows for the subordination of the usual system for distributing a
    death benefit under s. 48 to
Family Law Act
orders, arbitration
    awards or domestic contracts.  None are present in this case.

[87]

For these reasons, I would dismiss the appeal.

H.S.
    LaForme J.A.

Epstein J.A. (Concurring with Juriansz J.A.):

[88]

Mr. Carrigan, after having been separated from Mrs.
    Carrigan for a number of years and while living with Ms. Quinn in what was
    clearly a long-term relationship, made a designation under s. 48(6) of the
PBA
concerning his pension benefits.   The effect of this designation was that in
    the event of his death before payment of his deferred pension commenced and he
    did not have a spouse or was living separate and apart from his spouse, the
    designated individuals became beneficiaries entitled to be paid an amount equal
    to the commuted value of his deferred pension.

[89]

The question on appeal is whether, in the
    circumstances that existed at the time of Mr. Carrigans death, his designated
    beneficiaries; namely, his legally married spouse and their two daughters, became
    entitled to his pre-retirement death benefits.

[90]

I agree with Juriansz J.A. that the answer to this
    question is yes and that the appeal should therefore be allowed.

[91]

Section 1 of the Act recognizes both categories of relationships
    in which Mr. Carrigan was involved at the time of his death - Mrs. Carrigan,
    his legally married spouse and Ms. Quinn, his common law spouse - as spousal
    relationships. The Act therefore contemplates a situation, such as the one in
    which Mr. Carrigan found himself, where an individual can have two spouses
    simultaneously.

[92]

My colleague LaForme J.A. is of the view that since
    s. 1 of the
PBA
allows for two spousal relationships to exist at the
    same time, s. 48 of the Act should be interpreted as being capable of applying
    to two co-existing spousal relationships. My colleague Juriansz J.A. is also
    prepared to accept such a possibility. I respectfully disagree. I am of the
    view that the wording of s. 1 and the wording and structure of s. 48 of the
PBA
make it clear that the legislation can only be interpreted as applying to one
    spousal relationship at any point in time.

[93]

In terms of the plain language of the
PBA
, I
    start, as did Juriansz J.A., with the definition of spouse.  As my colleague
    points out in para. 20 above, s.1 defines spouse as being either of two
    persons, not three, and as belonging to one category  legally married
or
common law.

[94]

This wording leads me to the following conclusion.
    While the Act recognizes two categories of spouse, the scheme in s. 48, which
    determines the recipient of the pre-retirement death benefit,

is
    expressly designed to apply to the situation where the member of the pension
    plan has only one spouse at a time.

[95]

The language used throughout s. 48 reinforces this
    conclusion.  I point specifically to the wording found in ss. 48(1)-(4), (6),
    and (14), each of which is written in contemplation of only one spouse.  For
    example, s. 48(1) refers to
the
person who is
his or her spouse
,
    phraseology repeated or only slightly varied in the other provisions. [emphasis
    added]

[96]

Turning to the structure of the entitlement scheme,
    there is no debate over the fact that the scheme creates a spousal priority, a
    priority that is lost if, at the time of death, the pension member has no
    spouse or lives separate and apart from his or her spouse.  In that event, s.
    48(6) is engaged and the pension benefits go to the person or persons in whose
    favour a designation has been made, failing which the benefits become the
    property of the pension holders estate under s. 48(7).  Notably, under ss.
    48(6)(b) and 48(7)(b), the entitlement of the designated beneficiaries or the
    estate to the pension benefits depends on the pension members not having a
    spouse or living separate and apart from his or her spouse at the time of death..

[97]

As observed by Juriansz J.A., the problem is that
    it is not possible to read s. 48(3) as applying to a common law spouse, as, if
    the member of the pension plan is living separate and apart from an individual
    with whom he is not married, that individual is not a spouse under s. 1 of
    the
PBA.
Obviously, the same observation must be made in relation to
    ss. 48(6)(b) and (7)(b).

[98]

The subsections dealing with the circumstances
    under which a designation may be effective or under which the benefits may go
    to the members estate cannot be ignored.  Once a finding is made, as it was by
    the motion judge, that at the time of death Mr. Carrigan was living separate
    and apart from Mrs. Carrigan, his legally married spouse, then s. 48(3) triggers
    the beneficiary designation under s. 48(6) of the Act.

[99]

Based on this analysis, I agree with Juriansz J.A.
    that s. 48 must be interpreted to mean that if, at the time of death, the
    pension benefit holder had a legally married spouse from whom he or she was
    living separate and apart, a designation that had been made under s. 48(6)
    would apply regardless of the fact that he was living with a person who fell
    within one of the two definitions of spouse.

[100]

At the time of his death, Mr. Carrigan was in that
    position.  He was married to Mrs. Carrigan and he was living separate and apart
    from her.  This engages s. 48(3), which in turn eliminates the application of
    the spousal priority set out in s. 48(1) and allows for the application of s.
    48(6).  The result is that Mrs. Carrigan and the Carrigans two daughters, as
    designated beneficiaries under s. 48(6) of the
PBA
, are entitled to the
    pension benefit.

Gloria
    J. Epstein J.A.

Released:
October 31, 2012

[1]
For simplicitys sake, I use the term common law to refer to a
    person not legally married to but living with the member of the pension plan.
    The term common law is not used in the
Pension Benefits Act
.


COURT OF APPEAL FOR ONTARIO

CITATION:
Di Battista v. Di Battista
    Farms Ltd., 2012 ONCA 721

DATE: 20121029

DOCKET: C55168

Rosenberg, Gillese and Lang JJ.A.

BETWEEN

Antonio Di Battista a.k.a. Tony Di Battista

Applicant (Appellant)

and

Di Battista Farms Ltd., Nicola Di Battista,
    Giovanni Di Battista, Antonio Di Battista, Estate of Pietro Di Battista,
    deceased, and Anna Maria Di Battista, the personal representative of Pietro Di
    Battista, deceased

Respondents (Respondents)

Fernando Souza, for the appellant

Marco Drudi, for the respondent Di Battista Farms Ltd.

Robert S. Kaye, for the respondents Nicola Di Battista,
    Giovanni Di Battista, Estate of Pietro Di Battista, deceased, and Anna Maria Di
    Battista, the personal representative of Pietro Di Battista, deceased

Heard: October 23, 2012

On appeal from the judgment of Justice Pollak of the Superior
    Court of Justice, dated February 13, 2012.

ENDORSEMENT

[1]

The appellant brought an application in which he sought, among other
    things, an order compelling the respondents to consent to and execute such
    documents as are necessary to enable him to sever one acre of land from a
    property located in Kleinberg, Ontario.

[2]

By judgment dated February 13, 2012 (the Judgment), the application was
    dismissed.

[3]

The appellant appeals.

[4]

For the reasons that follow, we would dismiss the appeal.

BACKGROUND IN BRIEF

[5]

The appellant, Antonio De Battista (Tony), and his three brothers,
    Nicola (Nick), Giovanni (John) and Pietro (Peter), worked together in
    construction.  They started a company, the respondent Di Battista Farms Ltd.
    (Farms Ltd.).  Each of the four brothers and their nephew, Umberto Di Battista,
    were equal shareholders in Farms Ltd.

[6]

Farm Ltd. owns property in Kleinberg, Ontario (the Property).

[7]

Difficulties arose among the parties and the appellant was bought out.
    As part of the buy-out arrangement, the four brothers entered into a memorandum
    of agreement dated October 18, 1993 (the Memorandum).  Clause 7 (b) of the
    Memorandum reads as follows:

The Brothers agree:

(b)     they shall cooperate with either or both of Tony and
    Umberto, whoever desires to pursue the obtaining of a building permit for the
    construction of a house on one acre of the [P]roperty similar to the permits
    obtained by each of Peter, Nick and John and/or to obtain a severance of one
    acre of the [P]roperty for the absolute use of Tony and/or Umberto as the case
    may be;

[8]

In the 1980s, Nick, Peter and John all built homes on the Property.
    Later they arranged to have the lots on which their homes had been built
    severed.  Each paid Farms Ltd. the sum of $7,500 for their severed lots.

[9]

In 2009, the appellant prepared an application for a one-acre parcel to
    be severed from the Property.  His lawyer sent copies of the application to the
    respondents, asking for their consents to it.

[10]

In
    2010, when the respondents had failed and/or refused to provide their consents,
    the appellant brought the present proceeding in which he seeks to have clause 7
    (b) of the Memorandum enforced.  He acknowledges that all other aspects of the
    Memorandum have been fulfilled.

ANALYSIS

[11]

Various
    issues were raised in this proceeding.  We need deal with only one, however, as
    it is dispositive.

[12]

The
    application judge dismissed the application because, among other things, there
    is not sufficient certainty on the material and alleged integral terms of the
    [parties] agreement in respect of clause 7(b).

[13]

We
    agree.

[14]

For
    an agreement to be legally binding, there must be sufficient certainty as to its
    essential terms: see
Canada Square Corp. v. Versafoods
(1981), 34 O.R. (2d) 250 (C.A.); 130 D.L.R. (3d) 205,
    at para. 30.
Clause 7(b) lacks the requisite degree of certainty
    on essential terms to be legally enforceable.

[15]

Clause
    7 (b) commits the brothers to cooperate with the appellant if he wishes to
    pursue the obtaining of a building permit for the construction of a house on
    one acre of the real property in question or to obtain a severance for a one
    acre parcel.  It can readily be seen that clause 7(b) is written in general
    language.  For example, the word co-operation itself is open-ended and lacking
    in specificity.  Furthermore, clause 7(b) fails to specify such essential terms
    as: the location of the one-acre parcel in the Property; the dimensions of the one-acre
    parcel; who is to have title if severance is achieved; and, what price, if any,
    is to be paid for the severance of the one-acre parcel.  There is nothing in
    the balance of the Memorandum, construed within its factual matrix, which would
    enable the court to imply these terms.

DISPOSITION

[16]

Accordingly,
    the appeal is dismissed with costs to the respondents collectively, in the agreed
    on amount of $14,000, all inclusive.

M. Rosenberg J.A.

E.E. Gillese J.A.

S.E. Lang J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Degregorio v. Brick and
    Allied Craft Union of Canada, Local 29, 2012 ONCA 724

DATE: 20121026

DOCKET: C55335

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Marcello Degregorio

Plaintiff (Appellant)

and

Brick and Allied Craft Union of Canada, Local 29

Defendant (Respondent)

S. Grillone, for the appellant

C. Sinclair, for the respondent

Heard: October 24, 2012

On appeal from the order of Justice Stevenson of the Superior
    Court of Justice, dated March 9, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge found that the essential character of the dispute
    between the appellant and the respondent union concerned the respondents
    duties of fair representation and fair referral under the
Labour Relations
    Act, 1995
. We agree.

[2]

While the appellant wishes to hive off the issue of termination and be
    permitted to pursue that through the courts, the factual matrix makes it clear
    that the termination was part and parcel of the ongoing dispute with the result
    that the essential nature of the dispute does indeed relate to the duties of
    fair representation and fair refusal. A full and generous reading of the Reply
    does nothing to alter this conclusion.

[3]

Moreover, this court has previously indicated that the unnecessary
    bifurcation of proceedings flowing out of the same factual matrix is to be
    avoided: see
A.C. Concrete Forming Ltd. v. The Residential Low Rise Forming
    Contractors Association of Metropolitan Toronto and Vicinity
, 2008 ONCA
    864 (CanLII), at para. 26.

[4]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    in the sum of $5500, all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Duchesne v. St-Denis, 2012
    ONCA 699

DATE: 20121017

DOCKET: C54652

Weiler and Sharpe JJ.A., and Mackinnon J. (
ad
    hoc
)

BETWEEN

Eric Duchesne

Plaintiff (Appellant)

and

Brian Marcel St-Denis and Danielle Lise Menard
    St-Denis

Defendants

and

Steve Gauvreau
and Jean-Marc Bedard

Third Parties (
Respondent
)

Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant

Pat C. Peloso, for the respondent

Heard: September 4, 2012

On appeal from the order of Justice Heidi S. Levenson
    Polowin sitting as a single justice of the Divisional Court, dated June 23,
    2011, with reasons reported at 2011 ONSC 2282,  277 O.A.C. 291.

Mackinnon
    J. (
ad hoc
):

[1]

The
Limitations Act, 2002,
S.O. 2002, c. 24, came into force on
    January 1, 2004.  The overall question raised by this appeal is whether the
    minor appellants claim was discovered or discoverable by a reasonable person
    with his abilities and, in his circumstances, prior to January 1, 2004.

Background

[2]

On June 23, 2002, the appellant, then age 15 (born September 5, 1986),
    and his two friends, Steve Gauvreau and Jean-Marc Bedard, were invited to the
    home of Brian and Danielle St-Denis.  While at the home, the appellant and his
    two friends commenced a game of football.  A boy standing outside of the pool
    area would throw the football into the pool area.  One of the other boys would
    jump off the deck and into the pool to catch the football in mid-flight.

[3]

In an attempt to catch the ball in mid-flight, the appellant jumped off
    the deck and into the pool.  He struck his head on some part of the swimming
    pool and suffered severe personal injuries as a result.

[4]

The appellants mother sought legal advice regarding her sons injury
    and, in accordance with the legal advice she received, informed her son that he
    had a lawsuit against a bunch of people.  The appellant elected not to pursue
    an action in order to focus on his recovery.  Eventually, he reconsidered and on
    August 28, 2006, issued a Statement of Claim against the defendants St-Denis.  This
    was eight days before he turned 20 (eight days before the expiry of a two year
    limitation period after he reached the age of majority).

[5]

The third parties, Gauvreau and Bedard, were later brought into the
    action by the defendants.  It was not until June 2009 that the appellant
    brought a motion to amend the Statement of Claim to add the third parties as
    party defendants.

[6]

If the appellants claim against Gauvreau and Bedard was discoverable
    prior to January 1 2004, the former
Limitation Act
applies and the
    appellant plaintiff had six years from attaining the age of majority to add
    them as parties.  If, on the other hand, his claim was only discoverable when
    he attained the age of majority after January 1, 2004, a two year limitation
    would apply and he is out of time.  Master Beaudoin dismissed the appellants
    motion.  The appeal from the Master to a single judge of the Divisional Court
    upheld the Masters decision.

[7]

The appeal to this court requires us to engage in an exercise of
    statutory interpretation and, as a result, the standard of review is
    correctness.

[8]

For the reasons that follow, I am of the opinion that both the Master
    and the Divisional Court judge erred.  The finding that the appellant did not
    have actual knowledge of the claim before January 1, 2004 was based on an
    incorrect view of the law.  The question of whether the appellants claim was
    discoverable was conflated with the issue of when a limitation period involving
    a minor starts to run.  Having regard to the plain wording of s. 5(1)(a) and
    (b), it was error of law not to have addressed whether the claim was
    discoverable by a reasonable person with the appellants abilities and in his
    circumstances.  As a result, I would allow the appeal and grant leave to add
    the third party defendants but leave the limitation issue and the question of
    whether the claim was discovered or discoverable before January 1, 2004 to the
    trial judge.

The Relevant Provisions of the
Limitations Act, 2002

[9]

As frequent reference is made to various provisions of the
Limitations
    Act
,
2002
, those provisions are set out here:

4.  Unless this Act provides otherwise, a
    proceeding shall not be commenced in respect of a claim after the second
    anniversary of the day on which the claim was discovered.

5.  (1) A claim is
    discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).

6.  The limitation period established by section 4 does
    not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in
    relation to the claim.

8.  If a person is represented by a litigation guardian
    in relation to the claim, section 5 applies as if the litigation guardian were
    the person with the claim.

24.

(5)  If the former limitation period did
    not expire before January 1, 2004 and if a limitation period under this Act
    would apply were the claim based on an act or omission that took place on or
    after that date, the following rules apply:

1. If the claim was not discovered before January 1,
    2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1,
    2004, the former limitation period applies. [Citations omitted.]

The Order Under Appeal

[10]

As
    indicated, Master Beaudoin held that the plaintiff had not actually discovered
    his claim against the third parties before January 1, 2004.  He concluded that
    the appellant was not aware of any acts or omissions on the part of Gauvreau or
    Bedard that caused or contributed to his injuries, nor was the appellant aware
    that a proceeding against either friend would be an appropriate means to a
    remedy.  He found that the appellant only knew that he had been injured, who
    was present, and that he may have claims against a bunch of people.  This did
    not, in the Masters view, constitute knowledge of the material facts as required
    under common law or s. 5 of the
Act.

[11]

The
    Master also held that, as a minor, the appellant could not be deemed to have
    discovered his claim pursuant to s. 5(1)(b) of the
Act
.  Section 5(1)(b)
    states that a claim will be considered discovered on the day that a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have known of the claim.

[12]

On
    appeal, the Divisional Court agreed that knowledge of the material facts
    requires both knowledge of the specific person who caused the injury as well as
    knowledge that a proceeding against this person would be an appropriate means
    to seek remedy for damages.  It held that it was reasonable for the Master to
    have concluded that neither was known in this case.

[13]

The
    Divisional Court also agreed with the Master that a minor cannot be deemed to
    have discovered his or her claim under s. 5(1)(b) because a minor is presumed
    not to know his or her rights and is protected during the period of
    disability.  It held that to conclude otherwise would run contrary to the
    statutory protection afforded to minors without a litigation guardian.

[14]

In
    reaching their respective decisions, both the Master and the Divisional Court
    questioned whether the drafters intended to use the term reasonable adult
    instead of the term reasonable person in s. 5(1)(b).  Their conclusion would
    have the result that a minor is a person within s. 5(1)(a) but not within s. 5(1)(b).

The approach to be used

[15]

The
    first step in determining whether a claim that arose prior to January 1, 2004,
    is governed by the former or the current
Act

is to apply the
    transitional provisions in s. 24 of the
Limitations Act, 2002
,
    beginning with s. 24(2).  It is only if the current
Act
applies
    that the question would arise as to the applicability of s. 8:  see
Philion
    v. Lemieux Estate
, 2007 ONCA 281, 85 O.R. (3d) 1.

[16]

The
    language of s. 24 itself does not address the applicable limitation period by
    reference to the legal capacity of the plaintiff; rather, it uses the point in
    time when the claim was discovered.  There is nothing in s. 24 to suggest that
    a minor can only discover a claim in the manner described in s. 5(1)(a) (actual
    knowledge) and not by means of deemed knowledge in s. 5(1)(b).  When the
    statutory language is clear and unambiguous, there is no basis for the court to
    provide an interpretation at odds with the actual language used by the
    drafters.  When a statute uses the same word in different provisions,
    consistency favours applying the same meaning throughout.  In
St. Jean
v.
    Cheung
, 2008 ONCA 815, 94 O.R. (3d) 1, at para. 59, the court stated:

It was suggested that to interpret "discovered" by
    reference to ss. 5 and 8 for events that pre-date January 1, 2004, amounts to
    giving the legislation retroactive effect. I disagree. Interpreting the word
    "discovered" in that manner does not have the effect of deeming the
    law to be different from what it was prior to January 1, 2004. Rather, this
    approach enables the court to apply the word "discovered" in s. 24(5)
    in the manner intended by the legislature. It is a basic tenet of statutory
    interpretation that language in a piece of legislation is used consistently. As
    Ruth Sullivan states in
Sullivan on the Construction of Statutes
,
5th edition, at p. 361:
    "[I]t is assumed that language is used consistently, that tautology is
    avoided, that the provisions of an Act all fit together to form a coherent and
    workable scheme." (footnotes omitted) As the meaning of the word
    "discovered", for the purposes of the new Limitations Act is
    contained in s. 5, following this tenet of statutory construction, one would
    apply that same meaning to the word throughout the legislation.

[17]

Nor
    is there any language in s. 5 or s. 9 that would justify ruling that a minor is
    a person for the purpose of s. 5(1)(a) but not for the purpose of
    s. 5(1)(b).

Actual Knowledge

[18]

The
    appellant submits that he was aware of all the material facts in support of his
    claim prior to January 1, 2004.  There is no doubt that he was aware of the
    circumstances and could identify all of the people involved.  It is conceded
    that prior to January 1, 2004, he knew the following facts:

a)

he was playing a game of football with Gauvreau and Bedard;

b)

the game involved jumping into an above ground pool;

c)

he suffered a spinal injury while playing this game;

d)

the pool was located at the premises owned by the St-Denis;

e)

his mother sought legal advice;

f)

he was advised by her that he had a claim against "a bunch of
    people; and

g)

he decided not to pursue an action because he wanted to concentrate on
    his recovery.

[19]

Neither
    the appellant nor his mother deposed an affidavit in support of the motion.
    Transcripts of the appellants examination for discovery and examination as a
    witness were in evidence.  In his examination, the appellant admitted that even
    during 2004, he did not know that he had a case specifically against either
    Gauvreau or Bedard that would result in a damage award in his favour.  He
    testified that he knew he had a case but not specifically against whom.  This
    admission was key to the determination that the appellant had not discovered
    his claim against these particular persons as required by s. 5(1)(a)(iii) and
    (iv) prior to the implementation of the
Limitations Act
, 2002
.

[20]

According
    to the Divisional Court
, at paras. 44 and 45:

It is also my view, contrary to the submission of the
    Appellant, that for the purpose of section 5, knowledge of the "material
    facts" requires more than knowledge of an accidental injury and the
    identities of the persons present. There must be knowledge that there is a
    claim against a person for which liability may attach. Further, section
    5(1)(iv) requires knowledge "that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it." Section 5(1)(iii) and section 5(1)(iv) require knowledge of a
    possible cause of action against specific persons.

I note in this regard that section
    24, which does not contain language referring to a particular person, has been
    interpreted as being defendant-specific. In
Placzek
,
supra
the Court of Appeal stated at paragraph 39
    that the term "acts or omissions" in section 24(2) refers to acts or
    omissions of a defendant. Further, at footnote 6 to paragraph 41, the Court of
    Appeal referred to
St-Jean, supra,
at paragraphs
    57-59 and noted that the Court had held it appropriate to refer to other
    sections of the new Act that describe the meaning of words. Paragraphs 57-59 of
St-Jean
are set out above.

[21]

The
    Divisional Court also stated at para. 47:

A plain reading of section 5 (1)(a) makes it clear that the act
    or omission at subparagraph (iii) must be that of a specific person. In
    addition, a "proceeding" at subparagraph (iv) must be interpreted in
    a manner consistent with section 5, and as such, a "proceeding" must
    be against a specific person. It would be inconsistent with the scheme of
    section 5, and the
Limitations
    Act, 2002,
for a "proceeding" to be interpreted without
    reference to the person against whom it is brought.

[22]

The
    Divisional Court referred to
Placzek v. Green
, 2009 ONCA 83, 307
    D.L.R. (4th) 441 in support of its determination.
Placzek
had a
    unique factual background.  It dealt with when an act or omission occurs in the
    context of a proposed contribution and indemnity
counterclaim
    under the
Negligence Act
, R.S.O. 1990, c. N.1,
in relation to any judgment Ms. Placzek might obtain
    against Mr. Green.

[23]

The
    issue before the court was whether the act or omission alleged by
    Mr. Green in his proposed counterclaim had occurred before or after January 1, 2004,
    as part of the determination of whether the transitional rules would apply.
The court did not doubt that Mr. Green knew who he had
    a counterclaim against.  Rather, the court held that a counterclaim for
    contribution and indemnity does not arise until
after the initial,
    underlying tort has crystallized.  In
Placzek
, this did not occur until
    after the
Limitations Act, 2002
came into force
.  Read in full context, it is clear that the purpose of the reference in
    para. 41 to the acts or omissions, as required to be those of the proposed
    defendant, was to answer the submission of Mr. Green that since Ms. Placzeks
    claim against him had arisen before January 2004, s. 24(5)(2) applied and his
    counterclaim was not prescribed.
[1]
The point the court was making was that the acts or omissions described in s.
    24(5) must be those of the proposed defendants (in
Placzek
, those in the proposed counterclaim) and not
    defendants in some other action (in
Placzek
, those in the initial Statement of Claim).

[24]

The
    interpretation given by the Divisional Court to
Placzek
is
    inconsistent with this courts decision in
Alexis v. Toronto Police Service
    Board
, 2009 ONCA 847, 100 O.R. (3d) 232.  In
Alexis
, the court
    held that the absence of clear legal advice as to the identity of a particular
    proposed defendant was not sufficient to delay the running of the limitation
    period.  In that case, the plaintiff had been escorted by police officers to a
    hospital where she was admitted by a doctor as an involuntary patient for a
    psychiatric assessment.  She was released the next day having been found not to
    be a danger to herself.  Shortly thereafter, she consulted a lawyer who advised
    her that she had a strong case but that he would have to review the various hospital
    and police records before being sure.  In response to the submission that clear
    legal advice is required before a claim can be discovered, the court stated, at
    paras. 9 and 11:

I would not give effect to this submission. Assuming, without
    deciding, that legal advice was required to fulfil this requirement, I note
    that the appellant had obtained legal advice in December 2005 and re-attended
    the lawyer's office in February 2006 and several times thereafter. This advice
    was received in excess of two years before the claim was issued. The
    appellant's evidence is that her counsel consistently expressed his opinion
    that she had a good case. The fact that counsel advised her that he would have
    to review the various hospital and police records before being sure does not,
    in my view, delay the start of the running of the limitation period.

...

As a result of being provided with
    the Form 42, the appellant knew or
by
due
    diligence could have ascertained the name of the physician who completed the
    form. The fact that Dr. Heiber's name as the physician who completed the form
    is difficult to read is no basis for suggesting that the appellant did not know
    the identity of the physician or could not have discovered it with reasonable
    diligence. All that was required was for the appellant to re-attend at the
    hospital to confirm the physician's name.

[25]

Similarly,
    in
Ball v. Amendola
, 2009 CanLII 55309, (S.C.), the court found that
    the plaintiff did have actual knowledge of the proposed added defendant, Dr.
    Pugh, and his involvement at the time the original Statement of Claim was
    issued.  At that time, the plaintiff had medical records that clearly disclosed
    Dr. Pughs identity.  The court rejected the submission that it was not
    until later, when the plaintiff received an expert report identifying Dr.
    Pughs omission to conduct a particular test as potentially below the standard
    of care that the limitation period should start to run.

[26]

The
    decision of the Court of Appeal in
Kowal v. Shyiak
, 2012 ONCA 512, is
    more analogous to the instant case.  In
Kowal
, at paras. 18 and 19,
    the court held that:

Certainty of a defendant's responsibility for the act or
    omission that caused or contributed to the loss is not a requirement. It is
    enough to have
prima facie
grounds to infer that the acts or omissions
    were caused by the party or parties identified.  ...

By August 31, 2007, and certainly by November 1, 2007, the
    respondents were familiar with all the material facts. They knew that they had
    contracted with both Giant Builders and Overall Plastering. They were aware who
    had done the work on their home. They knew they had suffered a loss and that
    the acts or omissions were caused by either the appellants, or the third
    parties, or both.

[27]

These
    cases support the proposition that the legal analysis or advice that would have
    enabled the appellant to sort through the liability of the various individuals
    involved in the activities leading to his injuries may not have been necessary
    in order for him to have actual knowledge of his claim against the third
    parties.  His ability to have obtained that legal analysis prior to January 1,
    2004, would be relevant to the different consideration of whether the claim was
    discovered under s. 5(1)(b).  This was the inquiry in

St. Jean and in
    Macksoud v. Carroll
, 2011 ONCA 108, 104 O.R. (3d) 700.  In
St. Jean
,
    the existence of the doctors sought to be added was readily apparent in the
    hospital records.  Had that plaintiff sought appropriate expert advice in a
    timely way, the proposed new defendants would have been identified from a
    review of the hospital records.  In

Macksoud
, the facts were
    somewhat different; however the Court reached the same conclusion on discoverability
    at para. 24:

In this case, it appears that the claims were not necessarily
    discoverable just from a review of the records by a lay person as in
St.
    Jean
. However, a reasonable person acting as litigation guardian, and in
    this case, acting for herself as well, would retain competent counsel who is
    expected to take whatever are the necessary steps in a potentially complex
    medical malpractice case to identify all the potential defendants against whom
    claims may be made, within the relevant limitation period.

[28]

It
    would also appear that the Divisional Court confused the reference to
    proceeding in s. 24(2)
[2]
which must be a proceeding with respect to the acts or omissions of the
    specific person, and proceeding as used in s. 5(1)(a)(iv).  There the inquiry
    is directed to the nature of the loss or injury and whether its nature would
    warrant a legal proceeding.  Although it was a threshold case, the facts in
Peixeiro
    v. Haberman
, [1997] 3 S.C.R. 549 illustrate this distinction.
    Mr. Peixeiro knew he had suffered a back injury, but did not know he had
    herniated a disc in the accident, and did not sue because he thought his
    injuries were not serious enough to qualify for compensation in tort.  The
    Supreme Court held that having regard to the statutory threshold, the
    limitation period did not begin to run until Mr. Peixeiro knew or could
    reasonably have known that the injury he sustained included the herniated disc.

[29]

Both
    the Master and the Divisional Court erred in their interpretation of previous
    decisions of this court relative to whether knowledge of legal consequences
    that flow from known facts is required in order for actual knowledge to exist.
    Such knowledge may assist in the acquisition of actual knowledge of a claim,
    but it is not a requirement.  The appellant here could have had actual
    knowledge without having had the benefit of the legal analysis that might have identified
    for him the potential liability of various potential defendants.

[30]

As
    the finding of the Master, affirmed by the Divisional Court, that the appellant
    did not have actual knowledge of the claim before January 1, 2004 was based
    upon an incorrect view of the law, that findi
ng must be set
    aside.

Deemed Knowledge

[31]

The
    Divisional Court made no determination of whether the minors claim was discoverable
    pursuant to s. 5(1)(b) of the
Act
.  Rather, the Divisional Court stated
    at para. 72:

In my view, the Appellant's argument that the Appellant or a
    reasonable minor with the Appellant's abilities and in his circumstances ought
    to have known of the matters referred to in section 5(1)(a), runs contrary to
    the statutory protection afforded to minors (not represented by litigation
    guardians) and is contrary to the law. Minors are presumed not to know their
    rights and are protected during their period of disability.
Murphy v.
    Welsh, supra,
is dispositive of the matter. This has been recognized in other
    decisions and is reflected in the
Limitations Act, 2002
itself.

[32]

The
    respondent adopts this view and submits that s. 8 of the
Limitations Act,
    2002
should be interpreted as providing that s. 5(1)(b) can only apply to
    a minor if a litigation guardian has been appointed to represent the minor.

[33]

I
    disagree.  First, s. 8 only applies if a litigation guardian has been
    appointed.  It does not apply if there is no litigation guardian, as is the
    case here.

[34]

Second,
    the Divisional Court relied on
St. Jean
and
Serban Estate (Re)
,
    48 E.T.R. (3d) 78, 2009 CarswellOnt 797,

to
    conclude that only a litigation guardian can discover a claim for a minor.  Neither
    case reached this conclusion.  In
St. Jean
, there was a litigation
    guardian so the point did not arise.  In S
erban
, the issue was whether
    the Office of the Childrens Lawyer, which subsequently did become the minors
    litigation guardian, could be deemed to have discovered the claim on behalf of
    the minor prior to the date of its appointment.  The court decided that a
    litigation guardian cannot be deemed to have discovered a minors claim prior
    to being appointed as litigation guardian.

[35]

The
    Divisional Court also relied on the Supreme Court of Canada decision in
Murphy
    v. Welsh
, [1993] 2 S.C.R. 1069, at p. 1080, where it noted minors and
    others under legal disability are presumed not to know their rights and
    remedies and that it would be unfair to expect them to proceed diligently in
    relation to a limitation period because, implicitly, diligence requires
    awareness of ones rights.

[36]

At
    that time, the suspension of limitation periods for minors set out in s. 47 of
    the
Limitations Act
, R.S.O. 1990, c. L.15 had been found to be
    inapplicable to limitation periods contained in some other pieces of
    legislation.  In
Murphy
, this issue arose with respect to the
    limitation period in s.180 of the
Highway Traffic Act
,
R.S.O. 1980, c. 198.  The Court of
    Appeal had held that the specific
Highway Traffic Act

limitation
    period applied equally to minors and adults.  That decision was overturned by
    the Supreme Court for the reasons set out above.

[37]

The
Limitations Act, 2002
has expressly addressed this issue in sections 6
    and 19.
[3]
The legislature has provided for the protection of minors in s. 6 by
    suspending the limitation period for minors (without litigation guardians).  Resort
    to policy to provide this protection is no longer necessary.  Section 6 also
    implicitly recognizes that minors can discover their claims prior to reaching
    the age of majority.  If they could not do so, the suspension of the running of
    the limitation period would not have been necessary.

[38]

Nor
    was the Divisional Courts concern warranted that application of s. 5 (1)(b)
    to minors could, in non-transitional circumstances, decrease their limitation
    period.  Where it is possible to show that a minor could have discovered his or
    her claim before reaching the age of majority, it will also be possible to show
    that the minor (now an adult) could have discovered the claim on the day that
    he or she reached majority.  Therefore, application of s. 5(1)(b) to minors
    would never decrease their limitation period under the non-transitional rules
    of the
Act
.

[39]

It
    may appear anomalous that application of the meaning of discovered in s. 5
    may, in some circumstances under the transitional rules, extend rather than
    shorten a plaintiffs limitation period.  This is the result of the clear
    language used by the drafters and reflects their balancing of the rights of
    plaintiffs and defendants in transitional circumstances.  A result is that, in
    some circumstances, a plaintiff will benefit from the former, longer limitation
    period.  There is no policy justification to limit that benefit, where it is available,
    only to adult plaintiffs.

[40]

For
    these reasons, it was an error in law not to have addressed whether the claim
    was discoverable by a reasonable person with the appellants abilities and in
    his circumstances.

Disposition

[41]

I
    would allow the appeal and set aside the order of the Divisional Court dated
    June 23, 2011.  I would grant the appellant leave to serve and file a
    Fresh Statement of Claim adding the third party, Steve Gauvreau, as a defendant
    (the action against Jean-Marc Bedard has been settled).  I would leave the
    limitation issue and the question of whether the claim was discovered or
    discoverable to be determined by the trial judge.  I would award costs to the
    plaintiff throughout, in the amount of $15,000.00 for fees in relation to each
    of the motion, the Divisional Court appeal and this appeal, plus disbursements
    and applicable taxes in the all inclusive total amount of $56,005.00.

Released: October 17, 2012 (R.J.S.)

J. Mackinnon J. (
ad hoc
)

I agree K.M. Weiler J.A.

I agree Robert J. Sharpe
    J.A.

[1]
Placzek
,

at para.
    39:

Second,
    in my opinion, the term "acts or omissions" in s. 24(2) refers to
    acts or omissions of a defendant. Further, in the context of a contribution and
    indemnity claim, this must mean the defendant's failure to discharge his or her
    fair share of an injured party's claim before the contribution and indemnity
    claimant's liability to the injured party for a disproportionate share of the
    injured party's damages has crystallized.

[2]

This section applies to claims based on acts or
    omissions that took place before January 1, 2004 and in respect of which no
    proceeding has been commenced before that date.

[3]
19.  (1)  A limitation period set out in or under
    another Act that applies to a claim to which this Act applies is of no effect
    unless,

(a) the provision establishing it is
    listed in the Schedule to this Act; or

(b) the provision establishing it,

(i) is in existence on January
    1, 2004, and

(ii) incorporates by reference
    a provision listed in the Schedule to this Act. 2002, c. 24,                            Sched. B,
    s. 19 (1); 2008, c. 19, Sched. L, s. 3.


COURT OF APPEAL FOR ONTARIO

CITATION:
Edwardson v. St. Joseph's
    Healthcare Hamilton (St. Joseph's Hospital), 2012 ONCA

719

DATE: 20121026

DOCKET: C53352

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Alan Edwardson, Alice Edwardson, personally and as
    Litigation Guardian for the minors Daniel Edwardson and Benjamin Edwardson

Plaintiffs (Respondents)

and

St. Joseph's Healthcare Hamilton  St. Joseph's
    Hospital and
Larry Kahn

Defendants (
Appellant
)

Harry Underwood and Andrew McCutcheon, for the appellant

James A. Scarfone and Lauren Grimaldi, for the
    respondents

Heard: September 28, 2012

On appeal from the judgment of Justice David Samuel Crane
    of the Superior Court of Justice, dated February 1, 2011.

By
    the Court:

[1]

The appellant, Dr. Larry Kahn, appeals the judgment of Crane J. of the
    Superior Court of Justice dated February 1, 2011, awarding damages of
    $404,810.28 plus pre-judgment interest and costs to the respondent Alan
    Edwardson, his wife and their two young sons.

[2]

The respondent suffered a stroke following a cervical rhizotomy, a
    medical procedure performed by Dr. Kahn, an anaesthetist.

[3]

The trial judge found that Dr. Kahn failed to obtain Mr. Edwardsons
    informed consent to the procedure, and that a reasonable person in the
    patients position would not have consented to the procedure had he been
    properly informed of the material risks.

[4]

The trial judge awarded general damages of $200,000 and damages for
    future economic loss of $100,000 to the respondent, and damages of $40,000 to
    his wife Alice, and $10,000 each to his sons Daniel and Benjamin under the
Family
    Law Act
, R.S.O. 1990, c.F.3.

[5]

The appellant appeals on four grounds, two relating to liability and two
    relating to damages.

[6]

First, the appellant contends that the trial judge erred by concluding
    that the respondent did not give his informed consent to the rhizotomy. The
    appellant concedes that the trial judge applied the appropriate legal test on
    the consent issue, as articulated in
Hopp v. Lepp
, [1980] 2 S.C.R.
    192, and
Reibl v. Hughes
, [1980] 2 S.C.R. 880. The appellant also does
    not challenge the trial judges finding that Dr. Kahn personally failed to
    obtain the respondents informed consent to the procedure he performed.
    However, the appellant submits that the trial judge erred by not finding that
    the respondent provided his informed consent to the procedure during a
    consultation with a different doctor (Dr. Beauprie), in a different province
    (Nova Scotia), more than eight months before Dr. Kahn performed the procedure
    in Hamilton, after the respondent had moved from Halifax to Thunder Bay to take
    up a new position as an Anglican clergyman.

[7]

The trial judge carefully reviewed the testimony of Dr. Beauprie, the
    appellant and the respondent, as well as the relevant medical documentation. He
    specifically believed the respondents testimony about his conversations with
    the two doctors and had serious concerns about the credibility of Dr. Kahn. He
    concluded that in the early Nova Scotia consultation with Dr. Beauprie, the
    respondent did not give an informed consent to the stage-three rhizotomy
    performed on him eight months later in Ontario. We can see no basis for
    interfering with this factual conclusion, anchored as it is in application of
    the correct legal test and common sense. In short, it is far removed from being
    a palpable and overriding error.

[8]

Second, the appellant contends that the trial judge erred in his
    conclusion that a reasonable person in the position of the respondent would not
    have consented to the rhizotomy if properly informed of the potential benefits
    and risks of the procedure.

[9]

Again, the trial judge carefully applied the correct legal test  the
    modified objective test  from
Reibl v. Hughes
. He considered the
    potential benefits and risks of the proposed procedure, a rhizotomy. He also
    reviewed the testimony of the respondent and his wife relating to the
    respondents medical condition, new employment in Thunder Bay as a clergyman,
    recent marriage, and birth of two children. These are precisely the types of
    factors mentioned as being worthy of consideration by the court in
Reibl v.
    Hughes
, at pp. 898-99.

[10]

Combining
    these factors, we can find no basis for interfering with the trial judges
    conclusion that a person in Mr. Edwardsons circumstances would reasonably
    decline the rhizotomy procedure, particularly at C2, 3 if fully and lawfully
    informed of the benefits and risks.

[11]

Third,
    the appellant contends that the award of general damages of $200,000 is too
    high.

[12]

We
    disagree. The trial judge carefully documented the physical, psychological and
    emotional effects on the appellant of the stroke caused by the failed
    rhizotomy. His award of general damages is entitled to great deference.

[13]

Fourth,
    the appellant contends that the trial judges award of $100,000 damages for
    future economic loss was speculative and should not have been made.

[14]

We
    do not accept this submission. The trial judge carefully reviewed the
    respondents previous and current medical condition. He also took account of
    both the professional successes and disappointments in the years following the
    failed medical procedure. Both the trial judges decision to award some damages
    in this category and the quantum of his award seem reasonable to us.

[15]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at $20,000, inclusive of disbursements and applicable taxes.

Released: October 26, 2012 (J.C.M.)

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

R.A. Blair J.A.