Reasons for judgment were published this week by the BC Court of Appeal addressing the common law principles of subrogation and double recovery in a BC tort claim.
In the recent case (Provost v. Dueck) the Plaintiff RCMP officer was involved in a crash and sued for damages. At trial he was awarded various damages including $27,500 for past income loss for the months his injuries disabled him from work. During this time of disability, however, the RCMP continued to pay his full wages. Payments for other various benefits were made as well. These payments “were not made pursuant to a collective agreement or any other contractual arrangement. Rather, they were made pursuant to the longstanding “practice or policy” of the RCMP to continue to pay the full wage benefits of injured officers during their convalescence“.
The BC Court of Appeal held that in these circumstances the RCMP enjoyed no true rights of subrogation and that the awards should not have been made in tort as they would constitute double recovery. In ordering a deduction of these damages from the Plaintiff’s award the BC Court of Appeal provided the following reasons:
Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.
In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant. The Defendant accepted fault for the rear end crash. The collisions resulted in soft tissue injuries. Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries. The injuries were “expected to continue, to some degree, into the future as well. “.
The Plaintiff was employed as commercial transport mechanic. He missed considerable time from work but eventually was able to return. Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality. In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:
Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, demonstrating that even a modest level of disability can add up to substantial losses when calculated over working years.
In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a 2018 collision caused by the Defendant. The court found the collision resulted in lingering injuries that, while not outright disabling, resulted in a 5% diminished earning capacity. In assessing damages at $80,000 for future economic loss the Honourable Justice Winteringham provided the following reasons:
The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.
In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision. His injuries caused him to miss 7 days of work. He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits. The CRT agreed and dismissed the applicant’s claim. In doing so Tribunal Member Kristen Gardner provided the following reasons:
Reasons for judgement were published today by the BC Court of Appeal confirming it was not an error in law for a trial judge to rely on male labour market contingencies when assessing damages for an injured female plaintiff.
Reasons for judgement were released this week by the BC Court of Appeal upholding an award for diminished earning capacity based on “common sense“.
In the recent case (Ali v. Glover) the Plaintiff was involved in two collisions and suffered chronic aggravation of degenerative issues in his neck and back. The Plaintiff was able to continue working with his long-standing employer although some accommodations were made for limitations his injuries caused. At trial the Court awarded $110,000 for diminished earning capacity on the basis that the Plaintiff’s injuries were permanent and very well could impact earning capacity in the future should he lose his present employment.
ICBC appealed arguing this award was rooted in speculation. The BC Court of Appeal disagree noting it is simply a matter of common sense. In upholding the assessment the Court provided the following reasons:  Mr. Ali’s case for damages for a loss in his earning capacity was based on the injury to his back precluding him from finding employment that would otherwise be available to him should the need arise. The company for which he has worked for over 20 years has made adjustments to accommodate his limitations such that he does not do much of the “heavy lifting” that he once did, but for one reason or another his employment may be reduced in terms of the work available that he can do or be terminated altogether. His loss is essentially one of a capital asset in that, because of his injury, he is less capable of earning income from all types of employment, less marketable, less able to take advantage of all employment opportunities which, save for his injury, may have been available to him, and less valuable to himself as an income earner, all as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.). The judge concluded:  I am satisfied the plaintiff has proven there is a real and substantial possibility of loss of income earning capacity in the future. He has an accommodating employer but she may retire and sell or reduce his wage to one commensurate with the hours he is working on set up and supervising and not allow him to draw on a dwindling overtime bank. If he loses his job he is less valuable to himself and potential employers because he is not fully able to do physical work.  The appellants do not challenge the judge’s determination of the quantum of the award; they contend that no loss has been proven. They maintain the judge’s conclusion is based entirely on speculation that Mr. Ali may not be able to continue working in his present capacity earning the salary he is paid. But the fact remains, Mr. Ali’s marketability has been impaired by the injury he suffered; he is not capable of doing heavy physical work so some employment that would otherwise be available to him is now foreclosed. The judge made no fundamental error in concluding, as she did, there was a real and substantial possibility of Mr. Ali being able to earn less income in the future and giving what amount to examples of why there is no assurance Mr. Ali will always be employed as he is earning the income he does. What is said to be speculation devoid of evidentiary support is largely a matter of common sense.  I would not give effect to the fifth ground of appeal.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding that used vacation time following an injury is not compensable as lost income in a personal injury lawsuit.
In today’s case (McCartney v. McArthur) the Plaintiff missed a week of work due to collision related injuries. He used up vacation time during this period and was paid accordingly by his employer during the week off. In finding that no claim for loss of income for this period can be advanced in his tort claim Mr. Justice Bowden provided the following brief reasons:
 At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.
 The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.
 While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.
Update February 23 2018 – An appeal of the below case was dismissed this week by the BC Court of Appeal
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering whether a Plaintiff’s substantial losses in the stock market could be compensated as part of a personal injury lawsuit. On the facts of the case the Court rejected this claim.
In today’s case (Barta v. DaSilva) the Plaintiff was involved in a 2007 collision caused by the Defendant. The Plaintiff alleged that the collision caused a mild traumatic brain injury and this “destroyed his capacity to earn an income, trading securities on his own account, and has caused him to lose the capital he accumulated and invested in the stock market“.
Around the time of the crash the plaintiff’s total portfolio was valued around $1.8 million. By the end of the 2009 the value plummeted to less than $400,000. In rejecting the claim that a brain injury had anything to do with this diminished asset, Mr. Justice Affleck provided the following reasons:
 By July 31, 2008, a year after the accident, the plaintiff’s portfolio had increased to $2,790,301.95. He had made successful trades in that year increasing his portfolio by almost $921,000. There is no possible inference to be drawn that cognitive impairment had damaged his trading ability during this time period. Then disaster struck. In September 2008 the market “crashed” and the plaintiff testified that he was “hit hard”.
 The plaintiff had purchased Lehman Brothers Holdings prior to the crash and had made a considerable capital gain in a few days. This appeared to have encouraged the plaintiff to hold Lehman Brothers even as his own financial crisis deepened, as did that of the market generally. This the plaintiff argues indicates his impaired judgment following the accident. However, I have no basis to conclude his decision to retain the Lehman Brothers stock was irrational at the time it was made. He had made a substantial quick profit in a few days and I believe he concluded he could eventually continue to make money by holding on. He did not foresee Lehman Brothers would be forced into bankruptcy. Many investors suffered a similar fate…
…The plaintiff engaged in risky stock market trading over several years. He developed a level of expertise that permitted him to earn a reasonable income. However his unwise decisions made in 2008, coupled with the stock market collapse, and the judgment in favour of Mr. Palkovics created financial conditions from which he could not recover. In my opinion the effects of the accident did not compromise his ability to trade on the stock market.
 It is impossible not to have sympathy with Mr. Barta’s disastrous losses on the stock market but the evidence does not satisfy me that he has proven that the defendant’s negligence caused them.
Although damages for past loss of income can be assessed even if a Plaintiff does not accurately report income to Revenue Canada, the figures reported on tax filings have a high evidentiary value in Court. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Saadati v. Moorhead) the Plaintiff was involved in a number of collisions. The Plaintiff worked as a truck driver and advanced a claim for lost income of $6,000 per month for a period of two years. Prior to trial the Plaintiff was declared mentally incompetent and could not testify on his own behalf. The Court was presented with evidence addressing the Plaintiff’s claim for past loss of income, most notably evidence of very low reported earnings in the years prior to the collision. The Court relied heavily on this, accepting the reported earnings as accurate, and dismissed the Plaintiff’s claim for past loss of income. In reaching this decision Mr. Justice Funt provided the following reasons:  It is also clear that the plaintiff earned very little income during his 2001 to 2004 taxation years. The plaintiff did not report any income for his 2001, 2002 and 2003 taxation years and for 2004 only $12,796 in taxable capital gains was reported. In sum, his tax returns for the years prior to the accident show very little income. I note that in 2007 the plaintiff reported $22,500 in employment income.  There was evidence that the plaintiff during the years prior to the July 5, 2005 accident did not appear to be in financial difficulties and was able to provide for his wife and two sons. The Court will not impute income to the plaintiff for these years. He filed tax returns which he would have certified to be correct (the Income Tax Act, RSC, 1985, c. 1(5th supp.) also provides significant penalties for a false tax return). As many people do, he may have kept his financial affairs to himself. The imputation of income would be tantamount to finding possibly gross negligence or tax evasion which is unwarranted, especially having regard to the fact that the plaintiff is not able to testify to explain matters and defend his reputation.  In Hoy v. Williams, 2014 BCSC 234, Justice Kent set forth the test to determine whether an award for past income loss should be made.  Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.  As stated previously, I have found that the July 5, 2005 accident did not aggravate the plaintiff’s pre-existing physical injuries but that it did cause a personality change and cognitive difficulties.  The plaintiff has not provided sufficient evidence that “by reason of his [psychological] injuries, [he was] unable to do many things that, but for his injuries, he could have done to earn income” (Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 34) or would have earned income.  The Court, therefore, dismisses the plaintiff’s claim for an award for past wage loss.
The BC Court of Appeal published reasons for judgement today confirming that it is entirely appropriate for an economist to rely on statistical census data in discussing average earnings.
In today’s case (Smith v. Fremlin) the Plaintiff was injured in a motor vehicle collision. She was a recent law school graduate who just started her career. The collision caused injuries which limited her capacity to work. At trial the Court relied on an economists report which discussed average earnings for legal professionals in helping assess the Plaintiff’s diminished earning capacity. The Defendant objected arguing the report relied on inadmissible hearsay, namely statistical census data. The trial judge found the defendant’s objections to be ‘nonsensical’. Despite this the Defendant appealed. The BC Court of Appeal dismissed the appeal fining statistical evidence is entirely appropriate in these circumstances. In reaching this conclusion the Court provided the following reasons:  The appellants say the Wickson report ought not to have been admitted into evidence at trial. They do not object to the qualification of Mr. Wickson as an expert but say his report is defective and inadmissible in two respects. First, it is said to be based upon evidence that is hearsay. Second, it is said to be irrelevant because it measures the income earning capacity of a group to which Ms. Smith does not belong.  The first of these objections, the hearsay objection, is unfounded. Mr. Wickson expressly describes the source of the data used in the preparation of his report. In addition to relying on published census data, he obtained a special tabulation providing education-specific 5-year age group income data from Statistics Canada. In my view, this data falls squarely within the admissible class of evidence described by Sopinka J. inR. v. Lavallee,  1 S.C.R. 852; it is information derived from enquiries that are an accepted means of arriving at an opinion within an economist’s expertise. The reliability of the data is supported by strong circumstantial guarantees of trustworthiness. It is, in words cited with approval in Lavallee, evidence of a “general nature which is widely used and acknowledged as reliable by experts in that field.”  Such was the opinion of this Court in Reilly. There, the Court noted that while hearsay evidence cannot generally be introduced through the admission of expert reports into evidence:  It is otherwise…with respect to the opinions of … economic experts based on the census data, which are routinely used by experts in their field …  In my view, the words of Smith J.A. in Jones v. Zimmer GMBH, 2013 BCCA 21, are a complete response to the appellant’s objection to the Wickson report and support and justification for the judge’s decision to admit it:  … Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband,  S.C.R. 14 at 21,  2 C.C.C. 6; R. v. Lavallee,  1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.  The second objection, that the Wickson report is inadmissible, as “wholly or largely irrelevant to the Plaintiff’s circumstances,” is equally unfounded. The appellants say the weight of the evidence at trial supported the conclusion that Ms. Smith would likely work within a limited range of the occupations open to a qualified lawyer. They say it was not helpful to receive and not appropriate for the court to rely upon a report describing the earning potential of all female lawyers in British Columbia (rather than, for instance, female lawyers in British Columbia practicing environmental or Aboriginal law in a not-for-profit setting).  This objection should be considered in light of the generally accepted approach to assessment of claims for loss of income earning capacity, which is, first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff.  Average earnings were found to be the proper starting point for the assessment of damages under this head in Reilly, even though there was some evidence of the plaintiff’s specific professional interests. This Court observed:  The trial judge should have considered the possibility that the respondent might not have realized his professional goals or might have changed his goals. Qualifying as a lawyer opens up a number of career possibilities. It is reasonable to assume that the respondent would have remained in the profession. But he might not have developed the professional skills to achieve above-average earnings. He might have decided that he did not want to make the personal sacrifices often required to compete professionally at that level. Other interests, of which he had many before his head injury, or future family commitments, might have persuaded him to alter his goals. He might have chosen other disciplines within the profession with lower remuneration, such as prosecuting, working in the civil litigation departments of the federal or provincial government, or becoming in-house counsel in the private sector. It is well known that in the legal profession interests change and there is great mobility. In addition, there are many above-average lawyers with below-average incomes.  As well, the possibility that the respondent might have earned more money than predicted should be considered, although we consider that the chance of this happening was relatively low given the evidence of the small numbers of lawyers in Vancouver who have achieved outstanding financial success. This award is intended to cover the respondent’s working life to age 70, a period of approximately 36 years from the date of trial. Many things can change during such a long period of time and present-day assumptions are far from immutable.  Evidence of the earnings of the class of workers to which the plaintiff belongs is clearly relevant to the assessment of a loss of earning capacity. At some point, the evidence may be so general or vague as to be of little assistance but, in my view, that cannot be said of the statistical evidence used in this case. Evidence of the lifetime earning capacity of female lawyers in British Columbia, according to Mr. Wickson’s testimony in cross-examination, was the most specific data available. No further breakdown of incomes of female lawyers in this province by areas of practice is available. The Wickson report therefore was the best available evidence of what has been recognized as the starting point of the assessment of the loss of income earning capacity. It was properly admitted by the judge.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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