Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

If you have an ICBC Injury Claim heading for a Jury Trial reasons for judgement were released today demonstrating an effective ‘charge‘ to the Jury where multiple years of past income loss are at issue.
Section 98 of the BC Insurance (Vehicle) Act limits past income loss awards to ‘net’ income loss in negligence claims stemming from BC motor vehicle collisions (Click here to read my previous post on this topic for some background).   This limitation in law can significantly reduce a Plaintiff’s damages in a BC Injury Claim and reasons for judgement were released today demonstrating this.
In today’s case (Wittenberg v. Ellis) the Plaintiff sued for damages as a result of a 2005 car crash.  After a jury trial damages of over $2 Million dollars were awarded which included an award for $1,420,000 in past income loss.  The court was asked to make the appropriate deduction under s. 98 of the Insurance (Vehicle) Act and ultimately decided that the past wage loss had to be reduced by $594,774 in order to comply with the legislation.
In a recent case by the BC Court of Appeal (Lines v. Gordon) the Court clarified how past income awards by juries will be taxed to comply with section 98.  Specifically the Court of Appeal held that “There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred.
Today’s case demonstrates keen trial skills by the Plaintiff’s lawyer as he asked the judge to instruct the Jury to focus on the claimed income loss on a year by year basis.  The Jury did indeed award damages on a year by year basis.  As a result Madam Justice Boyd was able to assess the income tax consequences for each year.  If the Plaintiff’s lawyer was not savvy enough to get this instruction the Jury could have awarded the past income loss as a lump sum and the award could have been taxed as if the money was all earned in one tax year.  This would have resulted in a significantly greater reduction for the Plaintiff.
This case also addressed whether a personal plaintiff can use a corporate tax rate when there is evidence that the past income claimed would have been earned through a corporation.  Madam Justice Boyd held that s. 98 does not permit this and Plaintiff’s need to have past income taxed based on personal tax rates, specifically she held as follows:

[39] I agree with the defence submission that this is the exact result which would occur if the plaintiff at bar is permitted to rely on a corporate tax rate for the bulk of his income loss award.  Like the RRSP deduction, corporate tax rates offer the deferral of the personal tax burden, but only until the owner/shareholder withdraws the corporate funds for personal use, at which time personal income tax must be paid on the funds.  As the award for net income loss will be paid to Mr. Wittenberg and not to his corporation, in effect, it will be as if earnings had been withdrawn from the corporation and taken into Mr. Wittenberg’s personal income.

[40] Permitting the plaintiff to rely on corporate tax rates for part of his income loss award in this case would enable him to avoid entirely his statutory obligation to pay personal income tax rates on personal income theoretically drawn from the corporation.  The result would be over-compensation.  Such an outcome would consequently place Mr. Wittenberg in a better position than he would have been in if he had not been injured.  In my view, this result is impermissible under the Insurance (Vehicle) Act, income tax legislation, and the general principles of damage assessment noted above.

[41] The correct approach is for the jury award for past income loss to be taxed at the personal income tax rate, as required by s. 95 of the Act.

corporate tax rate, icbc injury claims, Lines v. Gordon, Madam Justice Boyd, Net Past Income Loss, past wage loss, personal tax rate, section 98 insurance (vehicle) act, taxes and ICBC Claims, taxes and past income loss in icbc claims, Wittenberg v. Ellis

Comments (47)

  • I just want to mention I am just new to weblog and certainly liked this website. More than likely I’m going to bookmark your blog post . You actually have great well written articles. Thank you for revealing your website page.

  • I would like to convey my appreciation for your generosity for those who really want assistance with this one subject. Your very own commitment to passing the solution all over had become remarkably insightful and have regularly empowered ladies much like me to attain their desired goals. Your insightful guideline entails so much a person like me and a whole lot more to my fellow workers. Warm regards; from everyone of us.

  • Very nice article and straight to the point. I don’t know if this is actually the best place to ask but do you guys have any thoughts on where to hire some professional writers? Thanks 🙂

  • Heya i am for the first time here. I found this board and I to find It really helpful & it helped me out a lot. I hope to provide one thing back and help others like you helped me.

  • I used to be recommended this web site via my cousin. I am now not positive whether this submit is written through him as no one else understand such precise about my difficulty. You are amazing! Thanks!

  • I used to be suggested this blog through my cousin. I’m no longer sure whether or not this submit is written through him as nobody else understand such special about my problem. You are amazing! Thanks!

  • An impressive share, I simply given this onto a colleague who was doing a bit analysis on this. And he in actual fact bought me breakfast as a result of I discovered it for him.. smile. So let me reword that: Thnx for the treat! But yeah Thnkx for spending the time to discuss this, I feel strongly about it and love reading extra on this topic. If potential, as you change into expertise, would you mind updating your weblog with extra details? It’s extremely helpful for me. Massive thumb up for this blog publish!

  • I enjoy you because of your whole work on this web site. My daughter really likes doing investigation and it’s really easy to see why. We hear all of the lively manner you deliver good tricks via your web site and as well as boost participation from other individuals about this concept then our princess is certainly understanding a lot. Take advantage of the remaining portion of the new year. You’re the one carrying out a useful job.

  • Hello there, I found your blog via Google while looking for a related topic, your web site came up, it looks great. I have bookmarked it in my google bookmarks.

  • I have read several excellent stuff here. Certainly price bookmarking for revisiting. I wonder how much effort you set to create any such fantastic informative web site.

  • I needed to send you one very little word to thank you yet again for all the magnificent pointers you’ve discussed here. This has been certainly wonderfully generous with you in giving openly all many individuals would have sold as an ebook to earn some dough for their own end, certainly since you could have tried it if you ever decided. These things in addition acted like a easy way to fully grasp most people have similar passion really like my own to see a good deal more around this condition. I am certain there are thousands of more enjoyable moments ahead for folks who see your blog.

  • Admiring the dedication you put into your site and detailed information you provide. It’s great to come across a blog every once in a while that isn’t the same old rehashed material. Fantastic read! I’ve bookmarked your site and I’m including your RSS feeds to my Google account.

  • It is really a great and helpful piece of info. I’m glad that you shared this useful information with us. Please keep us up to date like this. Thanks for sharing.

  • My spouse and I stumbled over here coming from a different web page and thought I should check things out. I like what I see so i am just following you. Look forward to looking over your web page for a second time.

  • I’m extremely impressed with your writing skills as well as with the layout on your blog. Is this a paid theme or did you customize it yourself? Either way keep up the nice quality writing, it’s rare to see a great blog like this one nowadays..

  • I used to be more than happy to find this internet-site.I wanted to thanks in your time for this excellent read!! I definitely enjoying each little bit of it and I’ve you bookmarked to take a look at new stuff you blog post.

  • I’m still learning from you, as I’m trying to achieve my goals. I certainly liked reading everything that is posted on your website.Keep the information coming. I enjoyed it!

  • I think this is among the most significant info for me. And i am glad reading your article. But should remark on some general things, The website style is great, the articles is really nice : D. Good job, cheers

  • Appreciate you for sharing these kinds of wonderful threads. In addition, the best travel and medical insurance program can often eradicate those considerations that come with traveling abroad. Your medical crisis can soon become expensive and that’s bound to quickly impose a financial weight on the family’s finances. Having in place the great travel insurance offer prior to setting off is definitely worth the time and effort. Thanks a lot

  • Check beneath, are some absolutely unrelated web-sites to ours, having said that, they are most trustworthy sources that we use.

  • Thanks so much for giving everyone an extremely terrific chance to read in detail from this website. It can be very cool and as well , jam-packed with amusement for me and my office co-workers to visit your website nearly 3 times weekly to study the newest stuff you will have. And indeed, we’re at all times amazed with the astonishing tips you give. Selected 4 facts in this post are easily the most effective we have all had.

  • Nice post. I be taught one thing tougher on completely different blogs everyday. It should at all times be stimulating to learn content from other writers and practice slightly something from their store. I’d favor to make use of some with the content on my blog whether you don’t mind. Natually I’ll provide you with a hyperlink in your web blog. Thanks for sharing.

  • I am often to running a blog and i really respect your content. The article has really peaks my interest. I’m going to bookmark your site and maintain checking for new information.

  • I must express my appreciation to you just for bailing me out of this particular scenario. Just after looking throughout the the net and finding proposals which were not helpful, I thought my life was well over. Living devoid of the approaches to the problems you have resolved through the write-up is a crucial case, and those that could have badly affected my career if I hadn’t noticed the blog. Your mastery and kindness in maneuvering a lot of things was priceless. I am not sure what I would have done if I had not encountered such a solution like this. I am able to at this time relish my future. Thank you very much for this expert and sensible help. I won’t be reluctant to suggest your site to any individual who would like guidance about this situation.

  • With every thing that appears to be developing throughout this specific subject matter, many of your perspectives are actually very refreshing. On the other hand, I am sorry, but I can not subscribe to your whole theory, all be it stimulating none the less. It would seem to me that your comments are not totally justified and in actuality you are generally yourself not really completely certain of the point. In any case I did enjoy looking at it.

  • I simply wished to leave a quick comment on your blog post today. I have actually gotten on your site a couple of times over the last couple of months and have actually located a lot of your articles well written and helpful. I am asking yourself if your website approves guest blog posts or posts as I have interest in this particular niche and also would certainly agree to contribute to your site.

  • I’m just commenting to make you know of the excellent discovery my wife’s child developed checking your blog. She came to find many pieces, including what it is like to possess an awesome giving heart to let a number of people with no trouble gain knowledge of some multifaceted subject areas. You truly exceeded my desires. Thanks for rendering these necessary, trustworthy, educational not to mention cool tips about this topic to Gloria.

  • After research just a few of the weblog posts on your web site now, and I truly like your way of blogging. I bookmarked it to my bookmark web site checklist and can be checking back soon. Pls try my site as effectively and let me know what you think.

  • Does your blog have a contact page? I’m having trouble locating it but, I’d like to send you an email. I’ve got some recommendations for your blog you might be interested in hearing. Either way, great site and I look forward to seeing it develop over time.

Comments are closed.


If you would like further information or require assistance, please get in touch.


Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy