Canada: Plaintiff Denied A Pre-Trial Lost Income Award Due To Credibility Questions

Arsenault v. Comeau, 2015 NBQB 34

On August 28, 2008, Tammy Lee Arsenault was stopped at a yield sign when her car was hit from behind by a vehicle driven by Rachel Comeau. Arsenault went to hospital with complaints of soft-tissue injuries and jaw pain.

After the car crash, Arsenault continued to run a day-care from her home, then worked at an after-school gymnastics program, then at an elder-care business. In May of 2011, Arsenault left her job, claiming that pain from her 2008 injuries prevented her from continuing to work.

Arsenault filed a lawsuit against Comeau. In January of 2015, she filed a Motion requesting a pre-trial award for all her lost income between 2011 and 2015. She also asked for monthly income replacement payments up until her claim was brought to trial.

Under New Brunswick's Insurance Act, a Plaintiff hurt in a car crash can request an advance payment of financial losses suffered before trial. The Motion Judge hearing the request will make an early award if satisfied that the Plaintiff will, more likely than not, receive this money after trial.

Here, the Motion Judge refused Arsenault's request. Characterizing the crash as a minor one, and noting that Arsenault's injuries are subjective and difficult to pin down, the Motion Judge stated that before he could make any early award he needed to be persuaded by the medical evidence.

The Motion Judge reviewed Arsenault's medical reports, which appeared to support a diagnosis of fibromyalgia. However, the Motion Judge noted that these reports also suggested that Arsenault should have been able to work.

The Motion Judge found that, at trial, Arsenault's lost income claim would be awarded only if she was found to be a reliable and credible witness. In the meantime, the Motion Judge refused to grant her any early award for lost income. Based on the written reports, he did not see it as more likely than not that Arsenault would win such an award at trial, noting that if he was to pay Arsenault the money she was requesting now, she might be overcompensated and have to pay back money to Comeau after trial.

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