At Trial, the Defendant’s negligence was found to have caused the Plaintiff to die of cancer six months earlier than if he had received proper treatment. The Defendant then refused to pay the Plaintiff’s bereavement damages pursuant to the Fatal Accidents Act, RSA 2000 c F-8 (“FAA”), and other special damages that related to “alternative therapies”. In determining whether the Defendant was required to pay these damages, Shelley J. considered whether the Trial Decision required revision pursuant to Rule 9.13, which provides that at any time before a Judgment is entered the Court may vary, change or modify it. 

At para. 47 of the written Judgment, Shelley J. indicated that the FAA does not operate where there is negligence and, as a result of the negligence, a person dies from a certain cause but at an earlier date than they would otherwise have died. The Defendant refused to pay the Plaintiff’s bereavement damages on the basis that para. 47 of the Judgment indicated that the Defendant had no legal obligation to do so.

Shelley J. held that Rule 9.13 provides broader authority to vary a Judgment or Order than existed under the former Rules. Rule 9.13(a) gives the Court broad discretion to vary the Judgment or Order where the Judge has determined variation is necessary. Rule 9.13(a) contemplates circumstances in which a Judge has re-thought a matter or wishes to clarify it. While Rule 9.13(a) provides authority to make any change the Judge considers appropriate, the authority should only be exercised after the Judge has:  (1) indicated to the Parties that a Judgment or Order may be varied via Rule 9.13(a); (2) identified the nature of the proposed variation; and (3) allowed the parties to make submissions on the proposed variation. Shelley J. further held that Rule 9.13(a) must be considered in the context of the Foundational Rule, Rule 1.2. In order to be fair and just, a result must also be timely and cost effective.

Shelley J. held that the potential benefits of judicial intervention pursuant to Rule 9.13(a) include averting an unnecessary and costly Appeal. Further, if an Appeal is warranted after an Order or Judgment has been modified, the Appeal Court has the benefit of a more fully developed Trial Decision. Moreover, Rule 9.13(a) ensures that an incorrect statement of law can be corrected that might otherwise confuse future judicial analysis and inappropriately bind lower Courts.

Shelley J. held that the statement in para. 47 of the Judgment was incorrect and required correction pursuant to Rule 9.13(a). Shelley J. held that para. 47 was obiter, had no effect on the Trial’s outcome, and should be eliminated from the Judgment.

Shelley J. also addressed an issue regarding Rule 9.13(b), which provides that a litigant may ask the Court to address a question that was not asked at Trial. Shelley J. held that an application pursuant to Rule 9.13(b) would have been the proper mechanism by which the Defendant could have asked the Court to consider whether special damages relating to alternative treatments were appropriate. The Defendant did not make an Application pursuant to Rule 9.13(b). In any event, the Application would have been rejected. As such, Shelley J. refused to entertain the special damages issue raised by the Defendant during the Application.

The Defendant was ordered to pay Solicitor-Client Costs on the basis that the nature of the Defendant’s special damages claim was contrary to Rules 1.23(a) (Obligation to Identify the Real Issues in Dispute and Facilitate the Quickest Means of Resolving the Claim at the Least Expense), 10.33(2)(a) (Conduct That Unnecessarily Lengthened the Proceeding), 10.33(2)(d) (Improper Step), and 10.33(2)(g) (Serious Form of Litigation Misconduct).