Ipsofactoj.com: International Cases [2002] Part 9 Case 6 [SCC]


SUPREME COURT OF CANADA

Coram

Dr. Morrill

- vs -

Krangle

McLACHLIN CJ

ARBOUR J

BASTARACHE J

BINNIE J

GONTHIER J

IACOBUCCI J

LEBEL J

L'HEUREUX-DUBÉ J

MAJOR J

24 JANUARY 2002


Judgment

McLachlin CJ

(delivered the judgment of the court)

  1. At the heart of this litigation lies a ten-year-old boy, Mervyn Krangle, and his future care. Mervyn was born with Down syndrome. He is disabled and will require care for the rest of his life. He now lives with his parents. When he becomes an adult, at age 19, he is expected to leave his parents' care and go to a group home provided by the state, which all parties agree will be in his best interests. The issue on this appeal is whether Mervyn's parents, the Krangles, can recover damages for his adult care from Dr. Morrill, who cared for Mrs. Krangle during her pregnancy.

  2. Mervyn's parents have sued Dr. Morrill for the cost of raising Mervyn and related damages, on the ground that he failed to advise Mrs. Krangle of the availability of testing which would have revealed the Down syndrome, in which case she would have had an abortion. All agree that Dr. Morrill was at fault and that as a result the Krangles suffered some loss. The only issue before this Court is the amount of that loss - specifically, whether the Krangles are entitled to damages for the cost of caring for Mervyn after he reaches adulthood. It is conceded that Mervyn himself has no cause of action.

  3. We are of the view that the Krangles are not entitled to damages for cost of care after Mervyn reaches adulthood and that the possibility of loss to them on that account is adequately reflected in the $80,000 contingency award made by the trial judge. Accordingly, we would allow the appeal and restore the judgment of the trial judge.

    I. RULINGS AT TRIAL AND ON APPEAL

  4. The trial judge awarded the Krangles damages for Mervyn's care up to the age of 19, including damages for in-home service, special education, speech therapy, and equipment. He declined to award similar damages for Mervyn's care after the age of 19, on the basis that it was in Mervyn's best interests as an adult to move to a publicly funded group home. Because Mervyn would qualify for benefits under the Guaranteed Available Income for Need Act, R.S.B.C. 1979, c. 158 ("GAIN") (later replaced by the BC Benefits (Income Assistance) Act), S.B.C. 1996, c. 6 (now R.S.B.C. 1996, c. 27) the cost of the group home would be met by a monthly social security payment. He wrote [(1997), 154 D.L.R. (4th) 707, at para. 102]:

    .... it is unlikely that there will be any cost to the adult plaintiffs for the care of Mervyn afer the age of nineteen. The social safety net is likely to be in place at that time to provide the same benefits he would be eligible to receive today .... This is not a collateral benefits situation as argued on behalf of the plaintiffs.

  5. Having concluded that there was at least a 95 percent chance that the benefits provided under the legislation would be available to Mervyn when he reached age 19, the trial judge awarded the Krangles $80,000 against the contingency that this might not be the case. This figure represented 5 percent of what the award would have been had he concluded that the Krangles were responsible for Mervyn's adult care.

  6. Shortly after the trial, the support provisions of the British Columbia Family Relations Act, R.S.B.C. 1996, c. 128, were amended by S.B.C. 1997, c. 20. Section 88(1) stated that "[e]ach parent of a child is responsible and liable" for the child's support. Section 87 defined "child" as including an adult over age 19 who "is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life."

  7. The Krangles were concerned with the possibility that the amendments to the Family Relations Act might make them legally liable to care for Mervyn after he turned 19. They were further concerned that if they were so liable, the Province of British Columbia might seek to recover from them the costs of Mervyn's adult care in a group home under the indemnification provisions of the Family Relations Act and the GAIN or social welfare legislation. They decided to put these issues before the British Columbia Court of Appeal. They argued that in the event the Family Relations Act made them legally responsible for Mervyn's care after he reached age 19, and in the event the government had a right to claim against them on that basis for Mervyn's costs in a group home, the award of damages for Mervyn's adult care should be increased.

  8. The majority of the Court of Appeal allowed the appeal ((2000), 184 D.L.R. (4th) 251) and referred the matter back to the trial judge for an assessment of the cost of adult care. They stipulated that the sum awarded should be placed in a trust to protect that fund from dissipation, insulate it from potential creditors of the parents and ensure that any funds remaining on the parents' death would be available for Mervyn's care should he survive them. McEachern C.J.B.C., dissenting, would have upheld the trial judgment.

  9. The majority, per Mackenzie J.A., held that s. 88(1) of the Family Relations Act imposed a parental obligation to care for disabled adult children. The philosophy underlying the Act, in their view, was that the parents' obligation to support adult disabled children preceded that of the state. Section 91(3) of the Act provided a mechanism for the province to enforce that obligation, by authorizing "any person", including the province, to apply for an order for maintenance of the child if the parents do not discharge their obligation. Thus, if Mervyn went to a group home at age 19, and the province paid for his care under the social security or GAIN legislation, the province would be entitled to apply on Mervyn's behalf for an order obliging the Krangles to reimburse the Province for Mervyn's cost of care.

  10. The majority thus concluded that the Act imposed a legal obligation on the Krangles for Mervyn's adult care which the province might well choose to enforce. It held that they were entitled to be indemnified against that obligation in full. There was no foundation for a contingency discount against the possibility that the province might not enforce the obligation.

  11. The majority held, moreover, that damages for future care must be assessed without any deduction for social security benefits because GAIN is a welfare scheme for people who need its benefits and who are otherwise unable to pay for the cost of their own care. The majority found that the GAIN scheme allows the province to treat the parents' obligation under the Family Relations Act as the primary obligation and either refuse benefits assistance to Mervyn on reaching adulthood or alternatively claim indemnity from the parents under the Act.

  12. The majority of the Court of Appeal rejected the argument that liability must be based on the legislative scheme in place at the time of trial, and that the amendments to the Family Relations Act could not be considered. It held that the damages at issue involved future costs, making it unnecessary to consider the Act's retrospective and retroactive effect. The change in the legislation was a relevant fact before the court. If the change in legislation had reduced the parents' liability for cost of future care, it could not seriously be contended that Dr. Morrill would not be entitled to the benefit of the future cost reduction. The same must hold where the legislation increased those costs.

  13. To address the argument raised by the Court of Appeal that any award for future care might be dissipated before it was required, the Krangles volunteered to put the money in a trust. The Court of Appeal endorsed this suggestion, noting that trusts were awarded routinely in favour of third parties who provide services to plaintiffs. The trust would protect the funds and serve the public purpose of ensuring that any amounts left after the parents' death would go to Mervyn's care, should he survive them.

  14. McEachern C.J. dissented on two grounds. First, he concluded that the Krangles would have no legal obligation to support Mervyn after he reached age 19 because the definition of "child" in the Family Relations Act excludes adult disabled children who have left the "charge" of their parents. "Charge" is equivalent to care. The evidence established that Mervyn would be able to withdraw from the "charge" of his parents and live in a group home, where he would obtain the necessaries of life under GAIN. Having established this, McEachern C.J. turned to the Family Relations Act. Since it was clear that Mervyn would qualify for GAIN benefits at age 19, there would be no authority to require him to assign any maintenance rights he might have under the Act. He would have no costs for which he could claim against his parents. The only contingency was whether GAIN benefits would still be available when Mervyn reached his majority and beyond, and this was satisfied by the trial judge's contingency award. McEachern C.J. added that a moral obligation or willingness to pay for Mervyn's adult care was not enough to impose liability on Dr. Morrill. In response to the argument that Mervyn would be kept in poverty to quality for benefits, McEachern C.J. noted that it was unlikely that he would have any assets or that his economic prospects would be prejudiced, and that beneficial interests in assets up to $100,000 would not disqualify him from GAIN benefits in any event.

  15. Second, McEachern C.J. was of the view that the amendments to the Family Relations Act could not change the trial judgment. Acknowledging the general rule that a new statute does not apply to pending actions in the absence of a contrary intention in the statute, he noted that the difficulty was in identifying the kinds of rights protected by the principle. Where the legislation interferes with the vested rights of a party there is a strong presumption of protection. At the time the proceedings were commenced, Dr. Morrill was not subject to claims by the plaintiffs for future cost of care after Mervyn attained the age of 19 years. He concluded, at para. 74, "that to apply the recently amended provisions to this case would deprive the defendant of a vested right", and that in the absence of a stipulation that the Family Relations Act was intended to trump that right, the Act did not apply.

  16. Finally, McEachern C.J. pointed out difficulties in the trust proposed by the majority and expressed doubt as to its appropriateness.

  17. Dr. Morrill appeals to this Court, seeking reinstatement of the trial judgment.

    II. LEGISLATION

  18. Family Relations Act, R.S.B.C. 1996, c. 128, as amended by S.B.C. 1997, c. 20

    87.

    In this Part:

    (1)

    "child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

    88.

    (1)

    Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

    BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27 (replacing the GAIN legislation), as amended by S.B.C. 1997, c. 15

    15.

    (1)

    A recipient may assign to the government the right to do one or more of the following:

    (a)

    to bring a proceeding under an enactment to

    (i)

    obtain a maintenance order entitling the recipient to maintenance for the recipient or a dependent child, or

    (ii)

    vary or enforce a maintenance order under which the recipient is the creditor;

    24.1

    (1)

    The Lieutenant Governor in Council may make regulations governing the assignment of maintenance rights and the recovery of the amount of income assistance provided in place of maintenance, including the following regulations:

    ....

    (2)

    specifying maintenance rights that are to be assigned to the minister, including, but not limited to, any of the following rights:

    (a)

    to make an application under an enactment of British Columbia for a maintenance order;

    III. ISSUES

  19. The issue on this appeal is whether the Krangles are entitled to damages for Mervyn's adult care. This raises two subsidiary issues:

    1. will they incur costs for Mervyn's adult care on the evidence at trial and the amended Family Relations Act? and,

    2. if so, is the Court precluded from considering the amendments because they were passed after the trial?

    In the event it is determined that an award should be made to the Krangles for Mervyn's adult cost of care in addition to the contingency award made at trial, issues of collateral benefits and trust arise.

    IV. ANALYSIS

  20. The trial judge awarded the Krangles damages for the cost of raising Mervyn to adulthood as well as for the pain, suffering and anguish associated with his birth and his development. These damages are not at issue. We are here concerned only with one item of the damage award - the cost, if any, that the Krangles will incur for Mervyn's adult care.

  21. Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.

  22. The resulting award may be said to reflect the reasonable or normal expectations of what the injured person will require. J. Stapleton, "The Normal Expectancies Measure in Tort Damages" (1997), 113 L.Q.R. 257, thus suggests that the tort measure of compensatory damages may be described as the "`normal expectancies' measure", a term which "more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached . . . had it not been for the tort". The measure is objective, based on the evidence. This method produces a result fair to both the claimant and the defendant. The claimant receives damages for future losses, as best they can be ascertained. The defendant is required to compensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little and unfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair.

  23. This case is unusual in that the claimant is not the person requiring care, but his parents. But the same principles apply. The question is what, on the evidence, is required to put the Krangles in the position they would have been in had it not been for Dr. Morrill's tort, in so far as the law can do so. Applied to the issue of damages for Mervyn's adult care, the question is what is required to indemnify the Krangles for any costs they may incur for that adult care? The Krangles are entitled to be reimbursed for losses they may reasonably be expected to incur on the basis of the evidence and the law, plus an award for the contingency that the projections may not be realized.

  24. The parties to this appeal accept these principles. They differ not on principle, but on what costs the Krangles may reasonably expect to incur for Mervyn's adult care. The appellant says the majority of the Court of Appeal erred in awarding damages for Mervyn's future care for costs which, on the evidence and the law, the Krangles cannot be reasonably expected to incur. The respondents, on the other hand, seek to support the majority's award on the law and the evidence.

  25. It is useful to approach the issue that divides the parties in two stages:

    • first, whether the trial judge erred on the evidence and law as they stood at the time of trial; and

    • second, if not, whether the post-trial amendments to the Family Relations Act change the Krangles' reasonable expectations.

    A. Whether the Krangles Were Under a Legal Obligation to Support Mervyn After Age 19 at the Time of Trial

  26. All the experts agreed at trial that when Mervyn attains age 19 it will be in his best interests to live in a publicly funded group home. This would give him the greatest sense of independence and well-being and offer the best environment for his development. The trial judge accepted these findings.

  27. The next question was whether the Krangles would incur costs for Mervyn's adult care in the group home. At the time of trial, the cost of the group home - $654 per month - would have been paid for by the province under its welfare scheme, GAIN. This would be so even if the parents had the financial means to pay for it. The province's policy at the time of trial was to treat adult disabled persons as individuals, and absent assets of over $100,000, or possibly more, pay for the costs of group care through GAIN.

  28. The remaining question was whether this arrangement would still be in place when Mervyn reaches age 19. The trial judge concluded that it was very likely that the social safety net would be in place at that time. In his view, there was only a 5 percent chance that the state would change its policy of providing group home care free of charge to adult disabled persons, which would result in additional costs to the Krangles. The trial judge awarded the Krangles a contingency award of $80,000, or 5 percent of the projected capital cost of adult care for Mervyn, reflecting the 5 percent chance that the benefits would not be fully available in the future.

  29. Viewing the matter as it stood at the time of trial, the trial judge's holding that the Krangles would incur no cost for Mervyn's adult care and $80,000 contingency award against this possibility cannot be assailed. The findings are fully supported by the evidence and the law. The only question is whether the amendments to the Family Relations Act passed after the trial invalidate these conclusions.

    B. The Effect of the Amendments to the Family Relations Act

  30. The post-trial amendments to the Act raise two broad questions.

    • First, do the changes, assuming they are applicable, alter the situation at trial and raise a probability that the Krangles will incur expenses for Mervyn's adult cost of care?

    • Second, if the amendments have this potential, can the result at trial be changed given their post-trial passage?

    The first question is relatively straightforward. The second is more complex, raising issues of the doctrines of retroactive and retrospective application of legislation, vested rights and the finality of trial determinations. I therefore propose first to address the question of whether there is potential for the amendments to alter the situation at trial. If the answer to that question is negative, we need not address the complexities of applying post-trial legislation on appeal.

  31. The Court of Appeal was divided on the question of whether the 1997 amendments to the Family Relations Act would have made the Krangles responsible for Mervyn's adult care had they been in force at the time of trial. The majority found that the change to the definition of "child" under s. 87 of the Act extended the legal obligation of parents to care for adult disabled children like Mervyn. McEachern C.J., dissenting, held that Mervyn would not be caught by the new definition of "child".

  32. I share the view of McEachern C.J. that the new definition would not operate to catch Mervyn when he turns 19. It is helpful to set out the definition again:

    "Child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

    It is clear that the new definition imposes responsibility on a parent for care of an adult child in some circumstances. But would it do so in Mervyn's case? McEachern C.J. held that it would not because, on the evidence, Mervyn would be able to withdraw from the charge of his parents and obtain the necessaries of life.

  33. The evidence accepted by the trial judge, to recap, is that upon reaching the age of 19, Mervyn could and should leave his parents' care and enter a group home and the cost of the home would be paid for under GAIN. Nothing in the amended definition of "child" changes that conclusion. The only question is whether leaving his parents' home and entering a group home would constitute withdrawing from the charge of his parents under s. 87.

  34. In my view, when Mervyn leaves his parents' home and goes to a group home, he will leave his parents' charge. The term "charge" is not defined in the Family Relations Act either before or after the 1997 amendment. In the Concise Oxford Dictionary of Current English (9th ed. 1995), the term "charge" is defined as including: "care, custody, responsible possession." Black's Law Dictionary (6th ed. 1990), defines "charge" to include "[a] person or thing committed to the care of another". McEachern C.J. equated "charge" to "care" and on this basis concluded that when Mervyn left his parents' care for the group home, he would leave their charge. F. L. Woodman, in her article "Financial Obligations of Parents to Adult Disabled Children, Part I" (1997), 17 Est. Tr. & P. J. 131, at pp. 140-42, states that "charge" involves an inquiry into whether or not the adult actually lives independently. On this approach, if Mervyn is living in a group home, independent of his parents, he is considered to have withdrawn from their charge. It follows that Mervyn will not fall under the s. 87 definition of "child" when he reaches age 19 and that the Family Relations Act could not make his parents responsible for him under s. 88(1).

  35. Against this conclusion, it is argued by counsel for the Krangles that the philosophy underlying the amendments was that the parents' obligation to support adult disabled children is primary and the state's obligation secondary. However, this is far from clear. In my opinion, the better view is that the amendments were not aimed at shifting the burden of caring for adult children from the state to parents, but rather with ensuring that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to assist. This is supported by the wording of the definition of "child" in s. 87. If the intent was simply to shift the burden from the state to parents, it would have been clearer to state that parents with means are responsible for the care of adult disabled children. Instead, the definition includes the qualification that this is so only when the child has not left the "charge" of the parents. The effect generally is that where in fact a child cannot leave home and remains a charge or burden on his or her parents, both must contribute equally. On the other hand, where he is or she able to leave the parents' charge, the s. 88 obligation is inapplicable.

  36. Under s. 1 of the regulations to the BC Benefits (Income Assistance) Act, B.C. Reg. 75/97, a "child" is defined as "an unmarried person under 19 years of age." As well, under s.78 of the regulations, adult disabled children are not included in any of the categories of individuals who must assign maintenance rights to the Minister by s. 24.1 of the BC Benefits (Income Assistance) Act. The fact that there has been no change with respect to the status of adult disabled children in the benefits legislation is a further indication that there is no legislative intention to shift the burden for the care of these individuals to their parents.

  37. The legislative debates also support this view. The Attorney General, in speaking to the amendments, said that the changes to the legislation focus on ensuring that non-custodial parents continue support for a child of the marriage in the event of a marriage breakdown. In the debate, the Attorney General pointed out that the intent of the amendments was to bring the Act in line with the Divorce Act. He stated:

    It is simply bringing our legislation in line with the Divorce Act definition, essentially. Yes, if you're in loco parentis, whether you are a step-parent or a biological parent or you have adopted the child, you are a parent - and a parent is a parent is a parent, a child is a child is a child. That's what we are trying to do away with. We're trying to do away with categories of parents and categories of children. We are simply saying that this definition should apply and the definition of the parent should apply for support and maintenance.

    [Debates of the Legislative Assembly, 2nd Sess., 36th Parl., July 21, 1997, at pp. 6055-56.]

  38. Nor will Mervyn be kept in poverty in order to qualify for benefits under GAIN.

    • First, there appears to be no prospect, other than inheritance, that Mervyn will acquire assets.

    • Second, there appears to be no prospect that he will ever be able to earn money, answering the argument that welfare might discourage him from achievement.

    • Finally, GAIN allows recipients who are accommodated in a special care facility to have up to $100,000 in assets without disqualification.

  39. Counsel for the Krangles argued that even if the Act does not impose a legal obligation on the Krangles for Mervyn's adult care, they have a moral obligation to care for him, one which loving parents should not be expected to relinquish. This argument raises the question of whether moral obligation, as opposed to legal, suffices to ground an award of damages. Will the law force one person to recompense another for expenditures which are not legally required, but which the other in conscience feels obliged to make? No precedent was cited for this proposition.

  40. Moreover, the basis for the suggested moral obligation seems tenuous in these circumstances. It is the policy of the Province of British Columbia to provide care for disabled adults. This policy is expressly stated in the BC Benefits (Income Assistance) Act, which confirms in the preamble that "British Columbians are committed to preserving a social safety net that is responsive to changing social and economic circumstances". When a disabled person becomes an adult, the burden of his or her care shifts from the parents to society as a whole, and it is accepted as fair and just that the continued burden of care of disabled adults should be spread over society generally. At one time, it may well have been the moral responsibility of parents to care for a disabled child for as long as they lived. But for some decades now, that moral responsibility has shifted to British Columbia society as a whole, as expressed by legislation enacted and preserved by successive governments. No evidence was presented for the proposition that it is shameful or wrong for parents to accept the benefits provided by the government which allow adult disabled children to be cared for under the social security network of the state. Great as social and medical progress may be, disability will inevitably strike some members of society, randomly and irrationally. It is not immoral for a society to say that when this happens, the burden will not be confined to the individual and his family, but will be shared by society as a whole.

  41. The same holds for the argument that to accept the benefits of the social security network will stigmatize Mervyn and his parents. British Columbia has, on the evidence, adopted a policy of caring for all disabled adults at state expense, unless they personally have assets greater than $100,000. There was no evidence presented suggesting that there is stigma in accepting the incidents of that policy. There are good social arguments for freeing families from the continued burden of supporting disabled adults and caring for such adults through state-financed programs. Acceptable standards of care are made available to all, regardless of means. The independence of both the family and the disabled individual are enhanced. To participate in this scheme is not shameful. Hence there is a total absence of evidence in this case of stigma associated with group care under the GAIN program.

  42. For these reasons, I conclude that the majority of the Court of Appeal erred in holding that the Family Relations Act, taken at face value, will impose an obligation on the Krangles to care for Mervyn when he becomes an adult. I agree with McEachern C.J. that the cost of Mervyn's care in a group home will be fully met by the social security program in force in British Columbia. The amendments to the Act do not change the situation from what it was at trial.

  43. Of course there remains a possibility that the law will again be changed, this time in a way that makes the Krangles responsible in whole or in part for Mervyn's adult care. There is no reason, however, to suppose that this possibility is greater than the 5 percent determined by the trial judge. The provision of care for adult disabled persons by the state appears to be a constant feature of Canadian social policy; certainly this is so in British Columbia. The contingency award made by the trial judge provides adequate security against the possibility of change.

  44. This conclusion makes it unnecessary to consider whether the amendment to the Act passed after the trial should be considered and whether a trust for adult care damages could be imposed. It also renders moot the issue of whether social security benefits must be disregarded as "collateral benefits".

    V. CONCLUSION

  45. I would allow the appeal with costs and affirm the trial judgment.


Legislations

B.C. Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27, preamble and ss. 15(1), 24.1 [ad. S.B.C. 1997, c. 15, s. 3].

Family Relations Act, R.S.B.C. 1996, c. 128, ss. 87 [am. S.B.C. 1997, c. 20, s. 16], 88(1) [idem, s. 17], 91(3).

Guaranteed Available Income for Need Act, R.S.B.C. 1979, c. 158. [rep. S.B.C. 1996, c. 6].

Income Assistance Regulation, B.C. Reg. 75/97, ss. 1, 78.

Authors and other references

Black's Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, "charge".

British Columbia. Debates of the Legislative Assembly, vol. 7, no. 3, 2nd Sess., 36th Parl., July 21, 1997

Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995, "charge".

Stapleton, Jane. "The Normal Expectancies Measure in Tort Damages" (1997), 113 L.Q.R. 257.

Woodman, Faye L. "Financial Obligations of Parents to Adult Disabled Children, Part I" (1997), 17 Est. Tr. & P. J. 131.

Representations

Christopher E. Hinkson, Q.C., and Raj Samtani, for the appellant (instructed by Harper Grey Easton, Vancouver)

John N. Laxton, Q.C., and Robert D. Gibbens, for the respondents (instructed by Laxton & Company, Vancouver)


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