Canada: Diminished Value - Recent Court Decisions Reveal A Changing Landscape In Alberta On Determining How Much A Vehicle Involved In An Accident Is Worth

Last Updated: January 20 2015
Article by John Gilbert and Scott Matheson

Approximately 11 months after Provincial Court Judge Skitsko provided his decision in the diminished value test case King et al v. Satchwell et al (2013 ABPC 358), the first appeal of a diminished value trial was heard in Alberta. On November 13, 2014, Justice Crighton of the Alberta Court of Queen's Bench, sitting in an appeal and cross-appeal from the Brown v. Hermann et al (2014 ABPC 122) case rendered a decision. That decision, as explained below, must be viewed as a significant success for the defendant and for insurers defending other diminished value claims.

The History

Diminished value claims are based on the notion that a vehicle that has been in an accident is not worth as much as a similar vehicle that has not been involved in an accident. This article focuses on the recent wave of diminished value trials in Alberta, particularly on the evidentiary burden plaintiffs face in proving a claim for diminished value and the evidence that has recently been proffered at trial in support of diminished value claims.

In these recent decisions, the plaintiffs have provided reports by Mr. Ed Grieve in an effort to prove their claims. The first diminished value decision featuring Mr. Grieve that these authors are aware of was an unreported decision, Taylor v. Hrytsak (Action No. 1103600100). In Taylor, the Court accepted the evidence of Mr. Grieve and awarded diminished value.

Following Taylor, the next trial of the issues of diminished value came of the Satchwell test case. In Satchwell, Mr. Grieve's qualifications and the standard for proving diminished value were put through the rigors of the common law. In his decision, Judge Skitsko found that Mr. Grieve was not an appropriate expert on diminished value, noting arbitrariness in his methodologies.

The court did apply Mr. Grieve's methodologies in categorizing three types of diminished value: insurance, repair, and inherent. Judge Skitsko's definition of each type was:

1) Inherent: the value lost due to the "stigma" of having a vehicle involved in an accident;

2) Repair: the value lost due to the repairs not fully returning the vehicle to its pre-accident level; and

3) Insurance: the value lost due to the use of lesser parts during a repair.

After splitting (or "trifurcating") diminished value into three heads, Judge Skitsko refused to award any amounts for insurance or inherent diminished value, but did award $3,500 for repair related diminished value on the stated bases of several factors, including the vehicle's age, prestige, repaired damage (structural/cosmetic), reporting requirements and the quality of the repairs. This method of quantifying repair-related diminished value did not appear to be tied to Mr. Grieve's report.

Following Satchwell, the Alberta Provincial Court saw at least five civil claims proceed to trial, with numerous others filed and presently awaiting trial. Three of the five post-Satchwell trials were presided over by Judge Skitsko, and in each of those three decisions, Judge Skitsko awarded repair-related diminished value. Two of those decisions were subsequently appealed, with the Hermann decision being the only appeal heard to date. It was heard on November 13, 2014 and is discussed below.

In the two decisions not authored by Judge Skitsko the respective judges rejected each plaintiff's claims. In Purschke (Purschke v. Bell and Wawanesa, Action No. 1301500025), Judge Deck granted a non-suit application at the close of the Plaintiff's evidence, In Gordon v. Elves (2014 ABPC 147), Judge Hess dismissed the plaintiff's claim in its entirety at the close of all evidence. Further, Judge Hess rejected the plaintiff's proposition that the court quantify his damages by looking to other jurisprudence where diminished value was awarded. Essentially, the plaintiff asked for the court to quantify damages like it would for a claim for pain and suffering, but the court refused.

This left four decisions awarding repair related diminished value, two completely dismissing the plaintiffs' claims, and none since Taylor awarding what Judge Skitsko would consider inherent diminished value. The overarching theme developing between the cases was that "each claim for diminished value is unique and depends on its facts." With this uncertainty as the backdrop, the Hermann appeal was heard.

The Appeal

In Hermann, both the defendant and plaintiff appealed the trial decision of Judge Skitsko. Judge Skitsko found that Mr. Grieve was not an expert in diminished value, but that as the defendant's expert could "not rule out structural damage to the C-pillar" of the vehicle that an award for repair-related diminished value was appropriate.

The defendant appealed, among other things, on the grounds that Judge Skitsko erred in his application of the facts and burden of proof regarding the damage to the vehicle, and in assessing and quantifying damages to the plaintiff's vehicle for repair-related diminished value. The plaintiff appealed on the grounds that Judge Skitsko erred by, among other things, failing to qualify Mr. Grieve as an expert, assessing evidence in a biased manner, failing to accept common sense and in failing to apply jurisprudence from other jurisdictions.

The defendant was largely successful with regards to arguments on diminished value. To start, Justice Crighton found that it was inappropriate to split (or trifurcate) diminished value into three heads of damage, and that it should be treated as one head, with the categories referred to being potentially useful in the quantification of that head of damage. Further, and of particular note, the court found that, as diminished value is a special damage, any damages claimed under that head must be "specifically claimed and strictly proven."

As there was nothing inherently reliable in Mr. Grieve's methodologies, Justice Crighton rejected the claim for repair-related diminished value (although she did award a small amount for repair fixes). In discussing the quantification of damages, the Justice noted that an analysis akin to general damages (where there is no clear pathway) should not be performed on special damages claims and should consider evidence with regards to the future use of the vehicle.

Moving Forward

Hermann must be viewed as particularly valuable to defendants as it is a Superior Court decision and is binding on the Provincial Court - where the vast majority of these claims are being prosecuted. The decision leaves plaintiffs with the burden to prove their claim and rejects the argument that the Provincial Court can aid them in assessing a special damage, such as diminished value on the basis of common sense or gut instinct. The role of the court remains that of a gatekeeper of evidence and a trier of fact and law. The burden of proving a special damage claim and of quantifying that special damage claim remains with the plaintiff.

Besides the numerous Provincial Court matters currently pending, diminished value is slated to be heard by the Court of Queen's Bench again in 2015 on the Tardif case (Tardif v. Bustos PC 1390303122). Until more Provincial Court judges hear this matter, or until the Tardif appeal is heard, what will remain unclear is what evidence will be sufficient to properly prove a claim for diminished value in Alberta.

Moving forward, plaintiffs in Provincial Court must treat their claims as: (1) special damage claims subject to the burden to prove damages and quantify those damages, and (2) requiring appropriate expert evidence. Whether plaintiffs are able to lead this evidence to the sufficiency required of the courts is a significant question that could have costs consequences. Based on the decisions of Judges Skitsko, Deck, and Hess, as well as Justice Crighton, it appears unlikely that Mr. Grieve's methodologies to date will be sufficient. 

Originally Published by Canadian Underwriter magazine

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions