Ronald J. Jewitt
Cummings Andrews MacKay LLP

Main Entry: con’Esor’Etium
Pronunciation: k&n-’sor-sh(E-)&m, -’sor-tE-&m \&\ as a and u in abut

Etymology: Latin, fellowship, from consort-, consors
Date: 1829
1 : an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member
2 : ASSOCIATION, SOCIETY
3 : the legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other

© 1998 by Merriam-Webster, Incorporated

The cause of action known as “loss of consortium” has been codified in Alberta by Section 43 of the Domestic Relations Act, c. D-37 R.S.A. 1980 which reads as follows:

43(1) When a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm on a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable to an action for damages by the married person in respect of the deprivation.

(2) The right of a married person to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the spouse has, or any action that the married person in the name of the spouse has, for injury inflicted on the spouse.

While the cause of action of “Loss of consortium” is often trivialized or overlooked altogether, the best place to begin when assessing these claims in Alberta is the case Woelk v. Halvorson [1980] 2 S.C.R. 430, where McIntyre, J. states as follows:

…In my opinion, it is not open to the Court to treat the new cause of action as trivial and deserving of only token award. It is not open to the Courts to consider that the Legislature of Alberta in passing s.35, (now s.43 of The Domestic Relations Act, RSA 1980) intended to preserve the old jurisprudence, which had gone far to eliminate the right and render damage awards insignificant. I am not prepared to accept such an approach. It is my view that the Legislature having created the right of the wife to damage and having omitted any restrictions on damage awards, the Courts must endeavour to assess the damage realistically, according to the evidence of each case. The Legislature did not intend, in my view, to perpetuate an action leading only to insignificant recovery nor can it be said that it regarded the recovery as anomalous.

It is clear that in Alberta the cause of action of loss of consortium is not a derivative claim as in many other Provinces. The claim belongs to the spouse of the injured party and it is clearly and unequivocally their right to make a claim assuming they can prove damages resulting from an injury to their spouse. As with any tort claim each case must be decided on its own facts and with reference to the effects that the injury has had on the family, and in particular, the spouse.

The difficulty with most of the cases, which will be briefly summarized below, is that the Courts have not found sufficient evidence to support the claims, or alternatively, have not found sufficient evidence to award substantial damages. This may be partly due to the fact that the facts of the cases do not support higher damages. Or, in some cases, it may have to do with the fact that the loss of consortium claim is treated as a “throw in” cause of action by counsel, and hence insufficient evidence is lead.

To date, the indexed value of Alberta loss of consortium claims has yet to exceed the range of $25,000.00. Given the strength of the statements made in the Woelk v. Halvorson case, and with thorough preparation to present evidence on the key elements of the cause of action, I believe there are instances where an Alberta Court may grant substantially higher damages than Alberta has seen to date. In severe and permanent head injury cases, or cases of paraplegia or quadriplegia, where the injured party is no longer functioning mentally or physically to the same capacity as prior to the accident, a Court might award substantial damages. That is, if the correct evidence is lead.

The following are important elements that should be proven to the Court to establish this cause of action, and the damages flowing from it:

1. The injured party suffered injury as a result of a third parties¡¦ negligence.

2. The injuries are the cause of a loss of comfort and society within the marital relationship. This may seem trite, but if you do not tie the effect the tortious act has had on the relationship to the accident in question, the court will not award damages.

3. There is a substantial reduction or extinction of marital relations. Though there is more to the claim than a reduction in sexual relations, it is a very important factor taken into consideration by the courts.

4. The nature of the relationship between the spouses has been dramatically changed as a result of the injuries suffered. The nature and extent of the change in the relationship should be fully explored in evidence. The pre-accident relationship status should be compared to the post-accident status. If a husband after an accident is more akin to the third son the family never wanted, the damages should be substantial.

5. Though it is not necessary that the loss of comfort and society within the relationship be total, it is important that the injury, resultant damage and the effect on the relationship is clearly documented. It is clear from the cases that partial loss of consortium is compensable.

The practical difficulties with loss of consortium claims are two-fold. Firstly, it is not always desirable to have the injured Plaintiff¡¦s spouse examined for discovery because it opens another avenue for the Defence to collect evidence under oath about the injured party. Secondly, the injured party and the spouse are usually too embarrassed or too shy to proceed with these claims to the extent needed to prove the claim properly. If one decides not to pursue a loss of consortium claim for tactical reasons, however, one must query whether it puts the lawyer in a conflict of interest situation.

The following are some recent Alberta cases with brief summaries:

1. Benstead v. Murphy (1992) 7 Alta. L. R. (3d) 38, Varied (1994) 23 Alta. L. R. (3d) 251 (C.A.). – The husband’s loss of consortium case was dismissed on the basis of him having signed a general release for his own injury damages prior to the issuance of Statement of Claim. The wife’s loss of consortium was combined with loss of housekeeping capacity in the Court’s assessment of the general damages.

2. Quinton v. DeBoice (1997) 7 Alta. L. R. (3d) 38 – $10,000.00 was awarded to the spouse for loss of consortium but her loss of income claim was rejected as being too remote.

3. Phillips v. Rost (1996) 185 A.R. 241 – This case provides a good discussion by Moreau, J., on the current law in Alberta. $10,000.00 was awarded to the wife for partial loss of her spouse’s society and comfort.

4. Joyce v. Canadian Pacific Hotels (1994) 161 A.R. 53 – The loss of consortium claim was dismissed in this case because there was no evidence that the inability of the couple to have marital relations had any impact on the couple’s relationship and the comfort that the injured husband provided to his wife.

5. Bell v. Tilden Car Rental Inc. (1996) Alta. L. R. (3d) 152 – The Alberta Court of Appeal upheld the dismissal of a loss of consortium claim by the Trial Judge because the couple had a bad marriage prior to the accident.

6. LaPointe et al v. Keefe Estate (1986) 72 A. R. 1 – $15,000.00 was awarded to the spouse in this case.

7. Brouwer v. Grewal (1995) 168 A. R. 342 – In this case $5,000.00 was given to each the husband and the wife for loss of consortium when both individuals were involved in the motor vehicle accident.

8. Jessal v. Maxwell (1995) 167 A. R. 258 – $750.00 was awarded to the spouse for loss of consortium.

9. O’Hara et al v. Belanger (1989) 69 Alta. L. R. (2d) 158 – In this case the loss of consortium award was included in the overall general damage claim as the Plaintiff claiming Loss of consortium was also a passenger in the vehicle. This case dealt with a fatality situation where the Plaintiff’s spouse was killed. The Court makes a statement that the Domestic Relations Act does not purport to create a cause of action for spouses in a fatality except when there is a period of time between the date of the accident and the death.

10. Lakusta v. Fischer [1997] A.J. No. 84 – $5,000.00 was awarded to the spouse.

11. . Labonte v. Sowers (1994) 158 A.R. 350 – The spouse was awarded $4,822.88 for loss of consortium.

12. Gilchrist v. Oatway (1995) 168 A.R. 56, affirmed (1997) 209 A.R. 225 – $5,000.00 was awarded to the spouse for loss of consortium.

13. Smith v. Armstrong (1991) 123 A.R. 285 – The spouse was awarded $3,000.00 for loss of consortium.

14. Lawrence v. Smith (1991) 124 A.R. 288 – An 18-month loss of consortium claim resulted in a $5,000.00 award to the spouse.

15. Campbell v. Calgary Power (1987) 70 A.R. 161 – The spouse was awarded $15,000.00 for loss of consortium.

16. Lim v. Hyndman Transport (1992) 119 A.R. 19 – $5,000.00 was awarded to the spouse in this case.

17. Haydu v. Calgary (City) and Sano (1992) 116 A.R. 161 – The court dismissed the claim for loss of consortium because the injured Plaintiff was responsible for the accident. Justice Lomas went on to say that if he is wrong even though part of their loss of sexual relationship was because the spouse did not want to hurt his wife, he also had a heart condition which contributed to the loss and the Judge failed to make an award.

Conclusion

In summation, in Alberta loss of consortium is a separate cause of action, belonging to the spouse of the injured party. As such, although one of its very elements is the injury to another, it is not properly considered a derivative claim, nor is it in the strict sense a separate head of damage. To date, Alberta courts have been very conservative in awarding damages. However, given the Supreme Court¡¦s direction that this cause of action not be trivialized, it is the writer¡¦s opinion that in the right case substantial damages might be achieved with proper attention to the evidence which forms the foundation for the claim.