Tag: Madam Justice Brown

MPIC No-Fault Benefits Not Available to British Columbians Injured in BC By MPIC Insured Drivers


Reasons for judgement were released today deciding the extent of no-fault benefits the Manitoba Public Insurance Company (MPIC) has to pay when a driver insured by them injures a person in British Columbia.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was considered a pedestrian and was struck by a tractor trailer driven by an individual insured with MPIC.  The collision occurred in British Columbia.  The Plaintiff was severely injured but ICBC and MPIC did not agree as to who had to provide coverage.
Ultimately a lawsuit was brought and Mr. Justice Meyers ordered that both MPIC and ICBC had to provide the Plaintiff with benefits with MPIC being the primary insurer.  (You can click here to read my former post summarizing this previous decision)
Unfortunately the legal positioning did not end there.  Manitoba is a true no-fault jurisdiction meaning that people injured in Manitoba motor vehicle collisions have had their rights to sue for damages severely restricted.  As a trade off they have a relatively generous scheme of no-fault insurance benefits.  In today’s case the Plaintiff argued that MPIC had to provide the Plaintiff with the more robust MPIC benefits.  MPIC disagreed arguing that their obligation to pay no-fault benefits is governed by the lesser BC limits.  Ultimately Madam Justice Brown sided with MPIC and ruled that a British Columbian injured in BC by an MPIC insured driver is not entitled to claim the more generous MPIC no-fault benefits.  Madam Justice Brown provided the following reasons:

[16]         The issue before me turns on the proper interpretation of the Power of Attorney and Undertaking filed by the Manitoba Public Insurance Corporation.  In this case, the relevant provisions of the undertaking provide that the Manitoba Public Insurance Corporation undertakes to:

A. … appear in any action … against it or its insured …

C. … not to set up any defence to any claim … which might not be set up if the contract had been entered into in accordance with the laws relating to motor vehicle liability insurance contracts or plan of automobile insurance in the Province … and to satisfy in a final judgment rendered against it or its insured by a court … in respect of any kind or class of coverage … up to the greater of

(a) the amounts and limits for that kind or class of coverage … provided in the contract or plan, or

(b) the minimum for that kind or class of coverage … required by law in such province ….

[17]         There is no issue that the coverage for the kind or class of insurance, being no-fault benefits is greater in Manitoba.  The question is whether its undertaking makes MPIC liable to pay that amount to Ms. Schuk.  In my view, it does not.  The undertaking provides that MPIC will satisfy any final judgment rendered against it “in respect of any kind or class of coverage provided under the contract or plan”, and “in respect of any kind or class of coverage required by law to be provided under a plan” in British Columbia.

[18]         In this case, there is no coverage provided under the contract or plan to Ms. Schuk for no-fault benefits under Part 2 of the Manitoba Act.  To qualify for that coverage, a person must be a Manitoba resident or injured in an accident in Manitoba (s. 74).  As MPIC argues, the Manitoba standard automobile policy does not incorporate PIPP benefits.  PIPP benefits are available based upon statutory entitlement.

[19]         Here, Section B of the contract provided accident benefits “as required by law”.  The Manitoba legislation provides PIPP benefits only to those resident in or injured in Manitoba.  Those benefits are not “required by law” for one, like Ms. Schuk, who is not a resident of Manitoba and not injured in Manitoba.  The driver of a Manitoba licensed vehicle is not required to carry PIPP coverage.  The Section B endorsement carried a charge of $950 for “accident benefits coverage for those drivers not eligible for Personal Injury Protection Plan (PIPP)”.  I accept the submissions of Manitoba Public Insurance that this would be drivers who were not Manitoba residents and were not injured in Manitoba.

[20]         Ms. Schuk did not have PIPP benefits coverage under either the contract or the plan.

[21]         The other portion of MPIC’s undertaking, that is not to set up any defence which might not be set up if the contract had been entered into in the Province of British Columbia, also does not assist the plaintiff.  ICBC could certainly have set up the defence that it does not provide benefits under the Manitoba legislation; that Ms. Schuk does not qualify for PIPP benefits.

Can a Plaintiff be Awarded Significant Funds for Future Wage Loss when their Pain and Suffering is Relatively Minor?

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.
In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.
Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.
Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.

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ERIK
MAGRAKEN

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.

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