IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141008

Docket: S59165

Registry:
Nanaimo

Between:

Heidi Symons

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Baird

Reasons for Judgment

Introduction

[1]            
This is a summary trial application brought by the plaintiff for a
declaration that she is entitled to temporary total disability benefits
(“TTDs”) and medical and rehabilitation benefits under Part 7 of the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83 (“the Regulation” or “Part 7”),
and for judgment against the defendant for the cumulative total amount of those
benefits that she says are payable, but which the defendant has wrongfully and
unlawfully failed to pay, since the plaintiff’s involvement in a motor vehicle
accident in 2008.

The Accident

[2]            
The accident occurred on April 20, 2008, on the Alaska Highway near
Charlie Lake, British Columbia. The plaintiff’s vehicle was struck from the
rear by a large truck. Photographs of both vehicles make it clear that the
collision was a significant one.

Injuries and Disability

[3]            
The medical evidence presented on this application admits of little real
dispute that, as a direct result of this collision, the plaintiff, a previously
hale and hearty young woman with no history of illness or injury, suffered moderate
soft tissue injuries, headaches, facial bruising and, most significantly, a
herniated disc at the L5-S1 level.

[4]            
I have no hesitation in concluding, based on the evidence before me,
that these injuries were totally disabling in the immediate aftermath of the collision.
Indeed, the defendant acknowledged this fact by paying the plaintiff TTDs until
approximately May 2, 2008. After this brief hiatus from work, the plaintiff returned
to work full-time. She felt she had no choice as she had recently started a
business and purchased a house with a mortgage.

[5]            
The plaintiff deposed, and I accept, that although she was still in pain
and not nearly as fit as before the accident, she had a business to run and
bills to pay, so she returned to work. I find that she might well have been
entitled to remain on TTDs for a good deal longer, but in a creditably stoic and
determined manner, she sought to return to productive life and remain
self-sufficient without recourse to the fund of Part 7 no-fault benefits to
which, as insured motorists in British Columbia, all of us contribute.

[6]            
Unfortunately, with the passage of time —
and the present litigation has much to do with the length of time that has elapsed
between the initial period of total disability and the time when the plaintiff
sought to have the benefits reinstated —
her lower back injury has worsened significantly.

[7]            
Immediately following the accident the plaintiff’s back injury was
thought to be right-side sacroiliitis. The plaintiff, on the recommendation of
her medical advisers, was diligently engaged in a course of massage, physiotherapy
and chiropractic treatments in an attempt, as required by section 78 of the Regulation,
to restore herself to the highest reasonably achievable level of gainful
employment or self-sufficiency.

[8]            
Despite these efforts, the back injury became progressively more painful
and debilitating. By August 17, 2009, while the plaintiff’s soft-tissue and other
complaints had improved, she continued to be hampered by steadily worsening lower
back pain that radiated into her right leg. Her family doctor sent her for a CT
scan which revealed a large right-paracentral disc protrusion at L5-S1. This
was confirmed by an MRI on May 17, 2010, which also revealed a displacement of
the S1 nerve root. The plaintiff was referred to a neurosurgeon who recommended
and duly performed discectomy surgery on May 2, 2011. The plaintiff was off
work convalescing from this surgery until early September, 2011. After this she
returned to her previous employment on a reduced schedule and reported an 80
per cent improvement in her lower back pain.

[9]            
Unfortunately, a significant set-back was not far off. On or about
February 12, 2012, while performing everyday housecleaning chores, the
plaintiff turned her head and sneezed. She experienced a sharp and immediate
return of her pre-operative lower back and associated leg pain. Several weeks
later a CT scan confirmed the reoccurrence of disc herniation at L5-S1. A
second discectomy surgery was performed on March 4, 2013.

[10]        
This second surgery was not only unsuccessful, but led to a cerebrospinal
fluid leak which has caused the plaintiff a good deal of additional pain and consternation.
Given the repeated discectomy failure, her attending neurosurgeon has now
recommended spinal fusion surgery, for which she is on a wait-list of
indeterminate length. In addition to her obvious physical deficits, the
plaintiff has, since February, 2013, been under the care of a psychiatrist to
assist her in coping with anxiety and depression associated with her
disability.

[11]        
The plaintiff has been unable to work since the recurrence of the back
injury on February 12, 2012. By means of a letter sent on January 23, 2013, her
counsel requested that ICBC reinstate TTDs. I was given no explanation for the delay
in making this request or for the paucity of response from the defendant in the
weeks and months thereafter. It was the absence of a proper response from the
defendant, in fact, that necessitated the plaintiff’s present application,
filed on February 4, 2014.

[12]        
On the evidence before me, there is no question that the plaintiff’s current
medical difficulties, especially her disc herniation at L5-S1, are causally
attributable to the April 20, 2008, car accident. The compendium of medical
opinion on file is unanimous and emphatic about this. The plaintiff’s prognosis
is guarded, if not pessimistic. It is true that this medical evidence is now a
couple of years old, but all that has happened in the interval, it seems to me,
is a second unsuccessful surgery leading to a worsening of the plaintiff’s
physical competence and capacities. In any event, the medical reports have been
in the defendant’s hands for many months, and despite ample opportunity to do
so, the defendant has failed in any meaningful way to investigate, contradict
or refute the findings and opinions therein.

[13]        
I have no hesitation in concluding that the plaintiff is totally
disabled at present. I have to this effect not only the recent evidence of the
plaintiff herself, which I have no reason to doubt, but also the previously
mentioned corroborative medical opinion evidence, as well as the expert
evidence of a well-known vocational consultant who, even before the
counter-productive second discectomy surgery, offered the firm opinion that the
plaintiff was competitively unemployable across all vocational categories.

Part 7 Benefits

  a) General

[14]        
Sections 79 and 97 of the Regulation mandate that, to be entitled
to Part 7 disability, medical or rehabilitation benefits, a person must:

a)    be an “insured”
person as defined in s. 78 (section 79(1));

b)    have been
injured in an accident involving the use or operation of a vehicle that
occurred in Canada or the United States (section 79(1));

c)     promptly
give ICBC notice of the accident (section 97(1)(a));

d)    give ICBC a
written report of the accident with particulars of the circumstances in which
the accident occurred and the consequences of the accident no more than 30 days
after the accident (section 97(1)(b)); and

e)    give ICBC a
proof of claim within 90 days of the collision (section 97(1)(c)).

[15]        
There was no dispute, on this hearing, that the plaintiff complied with
all of these preconditions to entitlement.

  b) Wage Loss Benefits

[16]        
Section 80 of the Regulation provides:

80(1) Where, within 20 days after an accident for which
benefits are provided under this Part, an injury sustained in the accident
totally disables an insured who is an employed person from engaging in
employment or an occupation for which the insured is reasonably suited by
education, training or experience, the [defendant] shall, subject to section
85, pay to the insured for the duration of the total disability or 104 weeks,
whichever is shorter

(a) the applicable amount of
disability benefits set out in section 2 of Schedule 3 [in this case, $300 a
week].

[17]        
Total disability after 104 weeks is governed by s. 86 of the Regulation,
which provides:

86 (1) Where an injury for which disability benefits are
being paid to an insured under section 80 or 84 continues, at the end of the
104 week period, to disable the insured as described in the applicable
section, the corporation shall, subject to subsections (1.1) and (2) and
sections 87 to 90, continue to pay the applicable amount of disability benefits
to an insured described in section 80 or 84

(a) for the duration of the
disability, or

(b) until the insured reaches
65 years of age,whichever is the shorter

period. [Emphasis added]

[18]        
It was common ground on this application that the plaintiff was:

a)       an
"employed person",

b)       who
sustained an injury in an accident,

c)       which
totally disabled her,

d)       within 20 days after
the accident.

[19]        
As such, she brought herself within the application of section 80(1) of
the Regulation: see Rashella v. Insurance Corp. of British Columbia,
[1997] B.C.J. No. 689 (S.C.) at para. 20. The defendant does not dispute
this. As previously stated, ICBC paid TTDs to the plaintiff in the immediate
aftermath of the accident. Those benefits stopped after only a couple of weeks
when the plaintiff returned full-time to her previous employment.

[20]        
The plaintiff takes the position that, once she met the prerequisites
for total disability within the meaning of Part 7, the fact that she was able
to return to work for a period of time, even a lengthy period, does not
disentitle her to renewed benefit payments after she again became totally disabled
by injuries sustained in the same accident. In her view, the case law interpreting
the Regulation establishes a right to reinstatement of TTDs in the
circumstances at bar. As authority for this proposition she relies on Brewer
v. Insurance Corporation of British Columbia, [1999] B.C.J. No. 2031 (S.C.),
especially at para. 19, as adopted on this point in Halbauer v. Insurance
Corp. of British Columbia, 2002 BCCA 5 at para. 64.

[21]        
The defendant, meanwhile, denies that this proposition is applicable to
the plaintiff’s case. They rely on the plain language of s. 86 of the Regulation
in asserting that the defendant’s obligation to pay TTDs ended when the the
plaintiff was able to return to work in early May 2008. Essentially, they say
that TTDs cannot be revived or reinstated outside the 104-week period referred
to in both ss. 80 and 86 of the Regulation: see the underlined phrase in
s. 86, above, for the wording in contention, along with Rashella at
para. 32 and Andrews v. Roffel, [1998] B.C.J. 631 (S.C.).

[22]        
In response, the plaintiff points to Cai v. Insurance Corporation of
British Columbia, 2013 BCSC 2213, where the court held — albeit in different
circumstances — that an
insured is eligible to apply for a continuation of benefits under s. 86
“whether or not they are currently in receipt of monies from ICBC” pursuant to
s. 80 (para. 44).

c) The Jurisprudence on the ‘Revival’ of TTDs

[23]        
Early case authorities took a strict (and literal) approach to the
interpretation of ss. 80 and 86. In Rashella, the court held that Part 7
is intended “to apply to totally disabled insureds, who make a gradually progressive
recovery” rather than to those who go from partial to total disability (paras.
34-35). If the plaintiff is not totally disabled within 20 days of the
accident, there is no entitlement to TTDs. (I note that this statement — the ratio decidendi of
Rashella — is
still good law and not in question in this case.) The court in Rashella also
commented that the plaintiff, who was not entitled to s. 80 benefits, could not claim under s. 86 as that
section “only comes into play once a person is presently receiving
disability benefits under Part 7” (para. 32, emphasis added).

[24]        
Following that decision, in Andrews, McEwan J. held that there
was no right to revival or reinstatement of TTD benefits, commenting that there
was

20        … no flexibility in the
scheme for relapses following periods of gainful employment. Once an insured
has achieved employment that exceeds the weekly benefit, he or she does not
return to Section 80 benefits if that employment is subsequently lost for an
accident related reason.

[25]        
If the development of the law on this issue stopped after Rashella and
Andrews, the plaintiff’s application for the reinstatement of her
benefits would have to be dismissed. However, more recent decisions have made incremental
inroads on the principles elucidated by those cases. The literal approach has also
given way, in favour of a purposive approach to the interpretation of Part 7
(see Cai at para. 44).

[26]        
In Brewer the plaintiff applied for reinstatement of her TTDs
under s. 80. She had been injured in an accident in 1998, and received 10
weeks’ worth of TTDs before returning to her employment as a waitress. She
stopped working six months later and by the time of trial had not yet returned
to employment. The court framed the issue as follows:

7          The threshold question
in this case is whether a person who initially qualified for temporary total
disability benefits under s. 80 of the regulations, returned to work full-time,
but then, within the time frame for which disability benefits could otherwise
be paid, found herself unable to continue to work by reason of the original
disability, is entitled to have those benefits reinstated.

[27]        
Melnick J. compared BC’s no-fault benefit scheme to that in the other
provinces, and noted that four provinces and two territories specifically
required a “continuous” injury, with benefits paid for no more than 104
“consecutive” weeks. Given that s. 80 makes no mention of a “continuous”
disability (or “consecutive” weeks), Melnick J. concluded that “the legislature
may not have intended the total disability to be continuous in order to attract
benefits” (para. 10). He concluded that Ms. Brewer was entitled to
reinstatement of her benefits, saying as follows:

19        Looking critically at
s. 80 of the regulations, I do not find anything in it which would prohibit a
claimant who had properly established temporary total disability, then returned
to work full-time, and then suffered further total disability due to the
original cause brought about by the motor vehicle accident, from having such
temporary total disability benefits reinstated. While the fact that a
disability temporarily ceased or diminished is a factor to be considered when
determining whether the claimant is currently totally disabled, it should not
be an automatic bar to a claim of "total disability".

[28]        
The Court of Appeal then built upon this foundation in Halbauer.
There, the plaintiff suffered serious injuries in a motor vehicle accident in
1990. ICBC paid TTDs for 3.5 years, transitioning from s. 80 to s. 86 in the
process, before terminating payment in 1995 when the plaintiff obtained
full-time employment. Sometime later he quit his job and did some part-time
work for the family business before leaving employment entirely by 1997 due to
disability. He commenced an action seeking reinstatement of TTDs. The Chambers
judge dismissed the action, but the Court of Appeal overturned.

[29]        
There were a number of issues at play in Halbauer — the case provides the current
definition for “total disability” as applied in Part 7 — but, in dealing with a secondary issue, Esson
J.A. adopted the ruling in Brewer and applied it to benefits under s.
86:

64        In ruling that Mr.
Halbauer ceased to be entitled to disability payments in May 1995 but again
became entitled in October 1997, I adopt the decision of Melnick J. in Brewer
to the effect that the right to disability payments, after having ceased
because the insured for a time is no longer disabled under s. 80, revive when
the insured again becomes disabled because of the original injury.
[Emphasis added.]

[30]        
I note, in passing, that there is nothing in this comment to suggest
that the right to revival turns on the timing of the plaintiff’s subsequent
disability.

[31]        
Cai is the most recent case in this benefit revival trilogy.
There, the plaintiff was injured in a motor vehicle accident in late 2010. He
qualified for, and received, a week’s worth of Part 7 TTDs. After that he received
employment insurance benefits and private insurance benefits available through
his employer. As Part 7 benefits are not available where the insured has access
to employment insurance or private insurance benefits paying at a rate greater
than the maximum payable under s. 80 (see ss. 81(2) and 83), ICBC discontinued
his TTDs during this period.

[32]        
In March 2013 the private insurance benefits came to an end and Mr. Cai
applied to ICBC to revive his TTDs under the Regulation. ICBC refused,
arguing — as they do in
this case — that “only an
insured who is ‘currently’ in receipt of benefits under s. 80 is entitled to
apply for a continuation of those benefits under s. 86” (para. 41).

[33]        
Bruce J. acknowledged the issue that arises from the wording of s. 86,
noting that “a literal reading of the language used in s. 86(1) suggests that
an insured must actually be receiving benefits pursuant to s. 80 to be eligible
for a continuation of those benefits.” However, she went on to say that “this
narrow interpretation of the Regulation would lead to anomalous results and is
contrary to the spirit and intent of the legislation.” In her view, ICBC’s
interpretation would mean that all insured persons who were receiving alternate
wage loss benefits at the 104-week mark would be ineligible for s. 86 benefits,
a result that would be “inconsistent with the legislative intent of s. 86,
which is to continue wage loss benefits beyond the 104-week period based on the
same eligibility criteria in s. 80” (para. 42).

[34]        
She then went on to conclude as follows:

[43]      . . .  In my view, it is only where an insured has
been denied coverage under s. 80, or they are no longer totally disabled within
the meaning of that provision, that they would be ineligible for s. 86
benefits.

[44]      Section 86 should be
interpreted in a purposive manner. Provided the insured remains eligible for
benefits under s. 80, whether or not they are currently in receipt of monies
from ICBC pursuant to that provision, they are eligible to apply for a continuation
of those benefits under s. 86.

d) Is the plaintiff entitled to the revival of her TTDs?

[35]        
Following Brewer, Halbauer, and Cai, insured persons
currently have a right to revive their TTDs (assuming all the other regulatory
requirements are met) in three situations:

1.     Entitlement
and revival under s. 80: the insured person receives benefits under s. 80,
returns to work, and again becomes totally disabled from employment within the
104-week period.

2.     Entitlement
and revival under s. 86: the insured person receives 104 weeks of benefits
under s. 80, transitions to benefits under s. 86, then returns to work for a
period before again returning to total disability.

3.     Entitlement
under s. 80 and revival under s. 86 (intervening alternate insurance benefits):
the insured person receives TTDs under s. 80, then receives private insurance
benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.

[36]        
The plaintiff in this case established entitlement under s. 80, and
seeks revival under s. 86. In my view, the plaintiff is entitled to a revival
of her TTDs. While none of the cases have taken the exact step that the
plaintiff urges upon me, Brewer, Halbauer, and Cai have certainly
cleared the path. Indeed, there is a plausible argument that Cai has
already answered this question in the affirmative. For convenience, I repeat
Bruce J.’s conclusion:

Section 86 should be interpreted
in a purposive manner. Provided the insured remains eligible for benefits under
s. 80, whether or not they are currently in receipt of monies from ICBC
pursuant to that provision, they are eligible to apply for a continuation
of those benefits under s. 86. [Emphasis added.]

[37]        
However, because Cai could plausibly be distinguished (and the
comments on revival limited to circumstances where the plaintiff has received
intervening private or public insurance benefits), I will make some comment on
the way that the principles of statutory interpretation support an extension of
the principles in the revival cases to the circumstances of this case.

[38]        
The Supreme Court of Canada has repeatedly confirmed that the “modern
approach” to statutory interpretation is the “preferred approach”: Bell
ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26. In Bell the
Court set out Professor Driedger’s formulation of the modern approach:

Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the schemes of
the Act, the object of the Act, and the intention of Parliament.

[39]        
Section 8 of the Interpretation Act, R.S.B.C 1996, c. 238,
further emphasizes the need for an interpretation that promotes the legislative
intent:

Every enactment must be construed as being remedial, and must
be given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects.

[40]        
The Regulation is part of a legislative scheme of universal
compulsory vehicle insurance. It is designed to provide “no fault” benefits to
insured persons who are seriously injured in motor vehicle accidents. These
benefits are meant to temper the negative financial consequences — in particular, the loss of
employment or homemaking ability —
that flow from such injuries.

[41]        
Part 7 is also designed to promote the injured person’s rehabilitation,
defined in s. 78 as “the restoration, in the shortest practical time, of an
injured person to the highest level of gainful employment or self-sufficiency
that … is … reasonably achievable”. To this end, Part 7 also includes
rehabilitation benefits under s. 88, including the provision of funds for
various one-time expenses that are likely to promote the person’s recovery (for
vocational training, for example, or alterations to the insured’s residence to
improve accessibility), and funds for medical treatments and rehabilitative
therapies.

[42]        
In other words, Part 7 (at least so far as it is concerned with benefits
following injury, rather than death benefits) has two related objects: to
compensate an insured person for a portion of the financial loss accrued from
temporary total disability caused by a motor vehicle accident; and, where
possible, to do so in a manner that brings about the end of the total
disability by returning the injured person to employment or self-sufficiency. (For
some discussion of these purposes, see Halbauer at para. 41.)

[43]        
In Halbauer, the court rejected the plain meaning of another
provision in the Regulation because that interpretation led to absurd consequences
and frustrated the rehabilitative object of Part 7. A similar concern animated
the court in Brewer, where Melnick J. noted at para. 18 that, absent a
right to reinstatement, “claimants may be reluctant to attempt to return to
work when they experience improvement for fear that, if the improvement proves
to be temporary, their benefits will not be reinstated.”

[44]        
I have similar concerns about the defendant’s interpretation of the
regulatory provisions under consideration in this case. Given that Brewer has
already established a right to reinstatement prior to the 104-week mark, the
plain meaning interpretation of s. 86 would simply encourage claimants to end
any attempt to return to work at the 103-week mark or, as observed in Brewer,
to avoid such an attempt entirely.

[45]        
Consider, for example, a claimant who is totally disabled in an accident
and receives TTDs for 102 weeks. As rehabilitation efforts are going well, the
claimant decides to attempt a return to work (or, perhaps, to attempt an
alternate vocation that the claimant believes he or she may be reasonably
suited for). Three weeks later, it becomes abundantly clear that the injury
continues to disable the claimant from employment. The plain meaning of section
86 would punish that hypothetical claimant for a commendable attempt to return
to work by extinguishing the right to revival of disability benefits.

[46]        
Given that one of the purposes of Part 7 is to promote rehabilitation
and foster efforts to return to work, I cannot imagine that this was a consequence
that the legislature intended. It is a well-known principle of statutory
interpretation that the legislature does not intend that its legislation have
absurd consequences (see Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R.
27 at 27), and an interpretation is certainly absurd that frustrates the
legislative purpose of an enactment: see, for example R. v. Proulx, 2000
SCC 5 at para. 92 et seq.

[47]        
There is another type of absurdity that arises from the defendant’s
interpretation, the type that consists in “making the fate of the parties turn
on something that appear[s] to be foolish or trivial” or where there is “no
rational connection between the consequence and the key determining factor”
(see Ruth Sullivan, Sullivan on the Construction of Statutes 5th ed.
(Markham: LexisNexis, 2008) at p. 311, along with examples cited of the
principle in action in R. v. Paré,
[1987] 2 S.C.R. 618 and Hills v. Canada (Attorney General), [1988] 1
S.C.R. 513.

[48]        
In the present context, a plain meaning interpretation is perfectly
capable of supporting a situation in which a single day could mark the
difference between a person who successfully applies for reinstatement just within
the 104 week period, and an identically situated person who is barred because
he or she is just outside of it. Absent some other meaningful distinction, such
as a failure in proof of causation, for example, there is no rational reason to
treat either claimant differently for the purposes of Part 7 benefits.

[49]        
I therefore conclude that an insured person is eligible to apply for the
revival of TTDs under s. 86 so long as a) they have previously established
eligibility and received TTDs under s. 80; b) they can demonstrate that they
are totally disabled as defined in s. 80; and c) they can show that the total
disability is due to injury sustained in the original accident.

Conclusion

[50]        
I hereby declare that the plaintiff is entitled to temporary total
disability benefits and medical and rehabilitation benefits under Part 7 of the
Insurance (Vehicle) Regulation.

[51]        
I order judgment in the plaintiff’s favour for the cumulative amount of
those benefits that ought to have been paid between May to September 2011 (the
period of total disability following the first discectomy surgery), and since
February 12, 2012 (the present period of total disability).

[52]        
I will leave it to counsel to agree on the amounts payable under the Regulation.
They have leave to apply in the event of an impasse.

The plaintiff will have her
costs on scale B.

“Baird J.”