Guimond v Guimond Estate: Confirming the Benchmark and Clarifying Apportionment for Section 10 Fatal Accidents Act Claims in New Brunswick

Five years after Mazerall v Nightingale gave New Brunswick’s grief and loss of companionship provisions their foundational principles, the New Brunswick Court of Appeal returned to the same territory in Guimond v Guimond Estate. The case arose from unusual facts (the claims were brought against the estate of the person who had caused the fatal accident) and it addressed a specific question that Nightingale had left open: what happens to the Section 3(4) award when there is only one surviving parent to claim it? And more broadly, does the Act require equal apportionment between parents?

The answers Bastarache J.A. gave, delivered for a unanimous court, confirmed the quantum benchmark established in Nightingale, clarified the apportionment rule in important ways, and introduced the Supreme Court of Canada’s Augustus v Gosset factors into the New Brunswick framework.

The Facts: Claims Against a Tortfeasor’s Own Estate

The Accident and Its Aftermath

On September 9, 1989, Barbara Ann Guimond was involved in a motor vehicle accident. She was found to be fully responsible for the accident. The accident killed both Barbara and her daughter Jessica. Barbara’s second daughter, Angela, was injured in the same accident but survived.

The unusual feature of this litigation is immediately apparent from those facts: the person who caused the accident, Barbara Ann Guimond, was also among the dead. The claims arising from the accident were therefore brought not against a negligent stranger, but against the estate of the family’s own wife and mother. Blain Guimond, the surviving spouse, was suing his late wife’s estate for damages arising from the deaths she caused, including the death of their daughter Jessica.

The Parties and Their Claims

Three claims were advanced by the appellants against the Estate of Barbara Ann Guimond (administered by James W.A. MacAulay as litigation administrator):

Blain Guimond claimed for: the loss of care, guidance and companionship of his daughter Jessica under s. 3(4) of the Fatal Accidents Act; his own loss from the death of his wife Barbara; and special damages.

James Blain Guimond, the surviving son, claimed against his mother’s estate for the loss of his mother. This claim was dismissed at trial and was not revived on appeal.

Angela Jennifer Guimond claimed for: the loss of her mother; general damages for pain and suffering and reduced earning capacity; special damages; and loss of past and future income. Angela had been 13 years old at the time of the accident. Her head went through the windshield, causing extensive facial lacerations requiring 78 sutures. She was hospitalized for six days.

The Trial Decision

Godin J. of the Court of Queen’s Bench awarded $22,677 to Blain Guimond and $39,404.08 to Angela Guimond. The claim of James Blain Guimond was dismissed.

The portion of Blain Guimond’s award that generated the principal issue on appeal was his claim under s. 3(4) of the Fatal Accidents Act for the loss of companionship and grief arising from the death of his daughter Jessica. The trial judge, citing Nightingale v Mazerall and Elliott (1991), 121 NBR (2d) 319, found that a range of $30,000 to $35,000 had been established in that case. He awarded $30,000 to Blain Guimond, the lower end of the Nightingale range. He reasoned that since Blain Guimond had suffered 100% of the parental grief in this case (Barbara, the other parent, being dead), there was no reason to reduce the award for absence of apportionment conditions. The award was, however, reduced by $10,000 because of a payment made pursuant to Section B of Blain Guimond’s motor vehicle insurance policy.

The First Issue: Blain Guimond’s Section 3(4) Claim

The Single-Parent Scenario: No Apportionment, No Halving

The first issue on appeal arose from how the s. 3(4) award should work when there is only one surviving parent. The respondents had argued, on what might have appeared to be a plausible reading of the apportionment provision, that the amount under s. 3(4) should be reduced to reflect the fact that only one parent was present to claim. The logic: if the normal case results in an amount that is then divided between two parents, a single-parent case should perhaps result in half that amount going to the one parent.

Bastarache J.A. rejected this argument clearly. He confirmed the structure of ss. 3(4) and 3(5) as Angers J.A. had explained them in Nightingale: s. 3(4) creates one amount for loss of companionship and one amount for grief in respect of the deceased child. Section 3(5) then provides for apportionment of those amounts among the parents. When there is only one parent making a claim, s. 3(5), the apportionment subsection, simply has no application at all. The one parent takes the full s. 3(4) amount. No artificial reduction by half is contemplated or required.

This holding has direct practical importance. Where one parent has died (or where parents are separated and one is not claiming), the surviving or claiming parent is not penalized by the absence of a second parent to share the award. The s. 3(4) amount is assessed as though apportionment will occur; then, if there is only one parent, the full amount belongs to that parent under s. 3(5) without any artificial halving.

The Apportionment Rule: No Requirement of Equality

Bastarache J.A. then addressed the broader question of how apportionment should work when there is more than one parent. His analysis on this point is important because it differs from how the apportionment rule has sometimes been summarized.

At paragraph 10, Bastarache J.A. stated: “It must also be pointed out that there is no requirement that apportionment be on an equal basis; on the contrary, the Act contemplates the possibility of an unequal apportionment. If the apportionment is to reflect ‘the proportion of the loss’ and ‘grief’, it can certainly be implied that no indirect apportionment is contemplated where there is only one surviving parent.”

The Act’s language in s. 3(5), apportionment “in proportion to the loss of companionship incurred and grief suffered by each parent,” is proportionality language, not equality language. Where the evidence shows that one parent suffered meaningfully more or less than the other in terms of grief and loss of companionship, the apportionment should reflect that difference. The Act does not require a 50/50 split. The presumption, in practice, will often be roughly equal where both parents have lost the same child and the evidence does not establish meaningfully different experiences of the loss; but equality is not the statutory mandate.

Confirming the $30,000 Benchmark

On quantum, Bastarache J.A. found the $30,000 award made by the trial judge to be reasonable. He introduced the Supreme Court of Canada’s decision in Augustus v Gosset, [1996] SCJ No 92, 202 NR 241, a contemporaneous SCC decision that had addressed the quantum of parental grief and companionship damages. L’Heureux-Dubé J. in Augustus v Gosset stated the relevant factors at paragraph 50 (NR):

“Since this exercise is subject to the particular circumstances of each case, the courts should consider the following factors, inter alia: the circumstances of the death, the ages of the deceased and the parent, the nature and quality of the relationship between the deceased and the parent, the parent’s personality and ability to manage the emotional consequences of the death, and the effect of the death on the parent’s life in light, inter alia, of the presence of other children or the possibility of having others. Since monetary compensation of any nature will not mitigate the parent’s grief, the figure will necessarily be arbitrary to a great extent.”

In the circumstances of the Guimond case (the simultaneous traumatic loss of a wife and daughter, the significant disruption to the family unit, and the impact on Blain Guimond’s functioning for a full year after the accident), Bastarache J.A. found the $30,000 award for the loss of daughter Jessica to be reasonable and declined to disturb it.

This confirmation is the source of the $30,000 per child benchmark that New Brunswick practitioners use as their reference point for Section 10 claims. The trial judge in Guimond applied the Nightingale range of $30,000–$35,000 per child, awarded $30,000 for Jessica, and the Court of Appeal found this reasonable. The quantum range from Nightingale, extended and confirmed by Guimond, is the settled New Brunswick benchmark.

The Section B Insurance Deduction

A separate issue was whether the $10,000 Section B payment from Blain Guimond’s own motor vehicle insurer should be deducted from the s. 3(4) award. The trial judge had deducted it; Blain Guimond argued the deduction was improper.

Bastarache J.A. upheld the deduction. Section 257(2) of the Insurance Act, R.S.N.B. 1973, c. I-12, provides that where an insurer makes a payment under a contract of insurance, that payment constitutes a release of the insured’s claim against any person insured under the same type of contract who may be liable. The conditions were met in this case; there was no ambiguity to resolve in Blain Guimond’s favour. The $10,000 Section B deduction stood.

The practical result was that Blain Guimond’s net recovery on the s. 3(4) claim for Jessica was $20,000 ($30,000 less the $10,000 Section B deduction), notwithstanding that the gross award was at the $30,000 benchmark.

The Second Issue: Angela Guimond’s Personal Injury Claim

Angela’s personal injury claim raises issues distinct from the wrongful death/Section 10 framework. Three aspects were addressed on appeal.

First, Angela argued she had sustained a closed head injury in addition to her facial injuries. The trial judge found insufficient evidence of a closed head injury; the symptoms could be explained by the child’s grief reaction to losing her mother and sister. Bastarache J.A. found no palpable error in the trial judge’s assessment of the competing expert evidence and declined to interfere.

Second, despite rejecting the closed head injury claim, Bastarache J.A. found the general damages award of $35,000 inordinately low given the nature of Angela’s physical injuries. Angela was still picking fragments of glass from her forehead four years after the accident. She had pronounced scarring that required her to fashion her hair to conceal it; further operations would be necessary to minimize it. The impact on her schooling was significant: at the time of trial it was already established that her entry into the labour force would be delayed by at least two years. Bastarache J.A. increased Angela’s general damages award from $35,000 to $50,000.

Third, the interest on special damages was adjusted to correct a double-recovery of interest that had inadvertently resulted from the trial judge’s order. The special damages were reduced to the actual Medicare outlay of $3,560.54, with interest at 3.5%.

The Legal Principles Guimond Contributes

Principle One: Section 3(5) Does Not Apply to a Single-Parent Claim

Where only one parent brings a claim under s. 3(4), whether because the other parent is deceased, absent from the proceedings, or otherwise not claiming, there is no apportionment under s. 3(5). The s. 3(4) amount is assessed without reference to potential division. The full amount belongs to the single claimant parent. No artificial reduction to account for the absence of a second parent is appropriate.

Principle Two: Apportionment Is Proportional, Not Necessarily Equal

When two parents are both claiming, s. 3(5) requires apportionment in proportion to the loss of companionship and grief suffered by each. The Act does not mandate equal apportionment. In many cases, equal division will be the practical result because both parents have lost the same child and the evidence does not distinguish materially between their experiences. But the statutory language is proportionality language, not equality language. Where the evidence establishes meaningfully different levels of grief or loss of companionship between the parents (perhaps because one parent had a substantially closer relationship with the child, or because one parent’s grief was clinically different from the other’s), the apportionment should reflect that difference.

Principle Three: The $30,000 Per Child Benchmark Is Confirmed

The Nightingale range of $30,000–$35,000 per deceased child (from Mazerall v Nightingale) is confirmed as the operative quantum reference in New Brunswick. Guimond applies the lower end of that range ($30,000 for the death of a child whose specific age is not detailed in the judgment) and the Court of Appeal finds this reasonable. In conjunction with Nightingale, the settled New Brunswick position is:

• The applicable range per deceased child is approximately $30,000 to $35,000 for the combined grief and loss of companionship amounts
• The specific amount within that range reflects the child’s age, the anticipated duration of companionship, and the circumstances of the family
• Younger children, with more years of expected companionship remaining to age 19, tend toward the higher end; older children toward the lower end
• The total amount per child is then divided between the parents in proportion to their respective losses

Principle Four: Augustus v Gosset Factors Apply

The SCC’s L’Heureux-Dubé J. factors from Augustus v Gosset [1996] SCJ No 92 inform the quantum assessment in New Brunswick. Courts should consider: the circumstances of the death; the ages of the deceased and the parent; the nature and quality of the relationship between the deceased and the parent; the parent’s personality and ability to manage the emotional consequences of the death; and the effect of the death on the parent’s life including the presence of other children or the possibility of having others. These factors operate within the $30,000–$35,000 benchmark range established by the New Brunswick cases rather than displacing that range.

Principle Five: Section B Insurance Deductions Apply to Section 3(4) Awards

Where an insured person has received a Section B payment under their motor vehicle insurance policy, that payment may be deducted from the s. 3(4) award under the operation of s. 257 of the Insurance Act, RSNB 1973, c I-12. The conditions of that provision must be met, but where they are, the deduction is proper and the gross s. 3(4) award is reduced accordingly.

The Significance of Bastarache J.A.’s Authorship

The judgment in Guimond was written by Justice Michel Bastarache. At the time of the decision he was a member of the New Brunswick Court of Appeal. In 1997, the year following this judgment, he was appointed to the Supreme Court of Canada, where he served until his retirement in 2008. Justice Bastarache is particularly known for his contributions to administrative law, bijuralism, and language rights.

His authorship of the Guimond judgment does not alter its legal authority, which derives from it being a unanimous New Brunswick Court of Appeal decision on an established point of provincial law. But it adds context: the framework for fatal accident grief and companionship damages in New Brunswick was, at its appellate formative stage, shaped in part by a jurist who would go on to sit on the country’s highest court.

Guimond and Mazerall Together: What the Two Cases Establish

Mazerall v Nightingale and Guimond v Guimond Estate are the foundational authorities for Section 10 claims under the New Brunswick Fatal Accidents Act. Their respective contributions are complementary:

Mazerall established the principles: two distinct heads of damage (grief and loss of companionship), assessed per child, apportioned between parents, calibrated to conventional Canadian amounts rather than subjective demonstrations of individual suffering. It established the methodology and the range ($30,000 for Kale; $35,000 for Alicia, with higher companionship amounts for younger children with more years of expected companionship remaining).

Guimond confirmed the benchmark ($30,000 per child at the lower end of the range), clarified the single-parent scenario (no apportionment, full amount to the one claimant), corrected a potential misreading of the apportionment rule (proportional, not necessarily equal), introduced the Augustus v Gosset factors as an additional analytical tool, and established the Section B deduction rule.

In practice: Mazerall is cited for the legal structure of a Section 10 claim; Guimond is cited for the quantum benchmark and the apportionment principles. Neither case is fully adequate without the other.

The New Brunswick Framework in Broader Context

What Makes New Brunswick’s Approach Distinctive

The Mazerall/Guimond framework is distinctive in several respects within the Atlantic Canada fatal accident landscape.

First, New Brunswick explicitly provides grief as a separate compensable head of damage distinct from loss of companionship under the same provision. Nova Scotia’s Fatal Injuries Act subsumes both within a single “care, guidance and companionship” assessment; the two-headed structure of the NB provision is a deliberate legislative choice.

Second, the quantum benchmarks differ significantly from those in Nova Scotia and Ontario. Nova Scotia awards for spousal loss of companionship reach $60,000 to $89,000 (Murray Estate v Advocate Contracting Ltd, 2001 NSSC 104); Ontario awards have reached $100,000 to $250,000 per parent. New Brunswick’s $30,000 per child (divided between parents) reflects a deliberately modest calibration of non-pecuniary fatal accident damages.

Third, New Brunswick permits punitive damages under the Fatal Accidents Act, a head unavailable to estates in Nova Scotia under the Survival of Actions Act framework confirmed by MacLean v MacDonald, 2002 NSCA 30 (CanLII), https://canlii.ca/t/4v1f. This makes New Brunswick’s total recovery structure broader in some respects, even while the Section 10 non-pecuniary component remains modest.

Fourth, New Brunswick’s two-year limitation period under the Fatal Accidents Act provides substantially more time than Nova Scotia’s twelve-month period. Nova Scotia’s discoverability principle, established in Burt and Seward v LeLacheur, 2000 NSCA 90 (CanLII), https://canlii.ca/t/1vhhm, addresses that brevity by starting the clock from discovery rather than death in appropriate cases. New Brunswick faces the same discoverability questions but from a more generous baseline.

Conclusion

Guimond v Guimond Estate arrived at the New Brunswick Court of Appeal with unusual facts: a family suing a deceased wife and mother’s own estate for the harm her negligence had caused. In that unusual context, Bastarache J.A. confirmed the benchmark the New Brunswick framework needed to function, approximately $30,000 per deceased child, divided between the parents in proportion to their respective losses, and clarified the two apportionment questions that Nightingale had left open.

The first clarification: where there is only one parent claiming, s. 3(5) has no application and the full s. 3(4) amount belongs to that parent. No artificial halving.

The second clarification: where there are two parents, apportionment need not be equal. The Act requires proportional division based on the actual grief and loss of companionship suffered by each parent. Equal division will be the practical outcome in many cases, but it is not the statutory mandate, and the evidence can support unequal apportionment where the parents’ experiences of the loss genuinely differ.

With these contributions, Guimond completed the framework that Mazerall began. Together, they define what Section 10 of the New Brunswick Fatal Accidents Act provides to parents who have lost a child through another’s negligence, and what it does not.

Quick Reference: Guimond v Guimond Estate

Case Details

• Citation: Guimond v Guimond Estate, 1996 CanLII 4858 (NB CA), (1996) 183 NBR (2d) 125, 465 APR 125 — https://canlii.ca/t/1lxg3 | File 100/95/CA
• Panel: Hoyt C.J.N.B., Ryan and Bastarache JJ.A. | Judgment: Bastarache J.A. (for the court)
• Heard: November 26, 1996 | Delivered: December 12, 1996 | Result: Appeal and cross-appeal allowed in part
• On appeal from: Godin J., Court of Queen’s Bench of New Brunswick (March 15, 1995)
• Governing legislation: s. 3(4) and s. 3(5), Fatal Accidents Act, RSNB 1973, c F-7 (now s. 10(1) and s. 10(2), RSNB 2012, c 104)
• Counsel: William J. McNichol for appellants; Peter F. Blair Q.C. for respondents

The Parties

• Appellants/Plaintiffs: Blain Guimond (surviving spouse, in his own right); Angela Jennifer Guimond (surviving daughter, in her own right); James Blain Guimond (surviving son, by litigation guardian Mark S. Sheehan)
• Respondents/Defendants: Estate of Barbara Ann Guimond; James W.A. MacAulay, Litigation Administrator
• Note: Barbara Ann Guimond was found fully responsible for the accident that killed her and her daughter Jessica; claims are brought against her own estate

Key Facts

• September 9, 1989: Motor vehicle accident; Barbara Ann Guimond found fully responsible; she and daughter Jessica killed; daughter Angela (age 13) injured
• Blain Guimond claimed for loss of Jessica (s. 3(4)), loss of Barbara (spouse), and special damages
• James Blain Guimond claimed for loss of his mother; claim dismissed at trial; not revived on appeal
• Angela Guimond claimed for personal injuries: general damages, scarring, loss of earning capacity
• Trial judge: Godin J. awarded $22,677 to Blain Guimond and $39,404.08 to Angela Guimond

Section 3(4) Claim — Key Holdings

• The trial judge applied the Nightingale range ($30,000–$35,000 per child) and awarded $30,000 for the death of Jessica, CONFIRMED as reasonable by the NBCA; “reasonable and should not be disturbed”
• Where only one parent is claiming, s. 3(5) has NO application; the full s. 3(4) amount belongs to the single claimant parent; no artificial halving to account for the absence of a second parent
• “There is no requirement that apportionment be on an equal basis; on the contrary, the Act contemplates the possibility of an unequal apportionment” (para 10)
• Section B insurance payment of $10,000 properly deducted from the s. 3(4) award under s. 257 of the Insurance Act; net award to Blain Guimond for Jessica = $20,000
• Augustus v Gosset [1996] SCJ No 92 (SCC) factors introduced: circumstances of death; ages of deceased and parent; nature and quality of the relationship; parent’s personality and ability to manage; effect on parent’s life including presence of other children

Angela Guimond’s Personal Injury Claim

• Closed head injury: trial judge found insufficient evidence; NBCA found no palpable error; finding upheld
• General damages increased from $35,000 to $50,000: 78 sutures for facial lacerations; 6-day hospitalization; glass fragments still present 4 years later; permanent scarring requiring concealment and future surgery; at least 2-year delay in entering workforce
• Special damages reduced to actual Medicare outlay of $3,560.54 at 3.5% interest

Principles Established

• Section 3(5) apportionment has no application where only one parent is claiming; the full s. 3(4) amount goes to that parent without reduction
• Apportionment between parents is proportional to actual grief and loss of companionship suffered; the Act does not require equal apportionment
• The $30,000–$35,000 per child quantum range from Nightingale is confirmed as the New Brunswick benchmark
• The Augustus v Gosset factors (circumstances of death; ages; nature of relationship; personality; effect on life) inform where within the range a specific award falls
• Section B insurance payments may be deducted from s. 3(4) awards under the Insurance Act where the statutory conditions are met

Related Articles in This Series

• Mazerall v Nightingale, 1991 CanLII 2716 (NB CA) — https://canlii.ca/t/1p1rx — foundational principles for s. 3(4)/s. 10 claims; two distinct heads of damage; per-child per-head methodology; $30,000–$35,000 range established
• MacLean v MacDonald, 2002 NSCA 30 (CanLII) — https://canlii.ca/t/4v1f — Nova Scotia estate recovery limited to actual pecuniary losses; contrast with NB where punitive damages are available
• Burt and Seward v LeLacheur, 2000 NSCA 90 (CanLII) — https://canlii.ca/t/1vhhm — discoverability and Nova Scotia’s twelve-month limitation period