The recent New Brunswick Court of Appeal case of Higgins Estate v Arseneau, 2014 NBCA 65, will be of interest for anyone involved with fatality claims in New Brunswick. It confirms that in such cases, the Estate of the deceased is not permitted to claim future "lost income" which the deceased person would have earned, had the tort not resulted in their death. In successfully defending the case, David G. O’Brien, QC and Patrick Dunn, of Cox & Palmer, argued that claimable damages in a fatal accident case are limited to claims of dependants, as defined by the Fatal Accidents Act, and claims by the estate under the Survival of Actions Act for "actual pecuniary loss", interpreted so as to exclude post-death loss of income. The Court of Appeal agreed.
The Estate's argument, claiming what is essentially the lost "value of the Estate", has been raised previously in New Brunswick cases, but the issue had never before made it to the Court of Appeal. The argument originated with a 1997 decision from the Alberta Court of Appeal, which endorsed such claims. At that time, the Alberta statute wording was the same as the present New Brunswick Survival of Actions Act. The Alberta statute was later changed by their Legislature to expressly avoid such claims. Nova Scotia, Prince Edward Island and Newfoundland/Labrador Courts have previously ruled on this issue, with the same final result as this most recent Higgins Estate decision from the New Brunswick Court of Appeal.
The time to serve and file an application for leave to appeal to the Supreme Court of Canada (60 days) has not yet run.