Under the legislation in B.C., the definition of “serious impairment” should be known by everyone who works in personal injury law.  Here is the definition as noted in the Insurance (Vehicle) Act [R.S.B.C. 1996] Chapter 231, Part 7 – Minor Injuries:

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

• is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and
• meets prescribed criteria.

Turning now to the criteria that must be established to meet the definition of “serious impairment”, under the Minor Injury Regulation – we must familiarize ourselves with the criteria:

Prescribed criteria for definition of “serious impairment”

3  For the purposes of paragraph (b) of the definition of “serious impairment” in section 101 (1) of the Act, the claimant’s physical or mental impairment must meet the following prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living;

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

*The legislation applies to claims as of April 1, 2019 onwards, and therefore this case / article does not reference Section 3(a)(i), but would like to highlight it:

• the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession

In particular, the Plaintiff has a duty to seek accommodations in the workplace in order to ensure that he or she is mitigating their damages.  There are several referenced decisions which highlight this duty noted within this summary.

We will review a recent case that discusses accommodation in the workplace and an argument that was raised by the defence that the Plaintiff failed to mitigate in that reasonable steps for accommodation in the workplace were not taken.  If this argument is successful, the result will be that a negative contingency will apply or a deduction on the value of that specific claim dealing with economic loss.  The subject case is referenced as Karst v. Foster, 2019 BCSC 1049 (CanLii).

The Court begins this analysis by identifying the legal framework:

[147]     A plaintiff in a personal injury action has a duty to take reasonable steps to limit his or her loss. The defence has the burden of proof on the issue of mitigation. This involves proving two elements: first that the plaintiff acted unreasonably in not taking the steps that the defendant says ought to have been taken, and second that the plaintiff’s loss would in fact have been eliminated or reduced had the step been taken: Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618 at para. 57.

As is noted by the Court, typically we see mitigation arguments that focus on the topic of treatment, that is that the Plaintiff has failed to comply with the recommended treatment plan, thereby resulting in a failure to mitigate argument. However, with the new language surrounding “serious impairment” and more importantly the criteria that must be established to prove “serious impairment” we will definitely start seeing more arguments raised in this regard.

The Court states:

[148]     In personal injury actions, the defence of mitigation often arises in the context of a plaintiff’s failure to pursue a recommended course of treatment. However, the defence may also apply where the defendant alleges that a plaintiff ought to have limited his or her loss by seeking employment accommodation or alternative employment: Mullens v. Toor, 2017 BCCA 384; Hawkins v. Espiloy, 2014 BCSC 2408 at paras. 73–80; Gallina v. Honda Canada Finance Inc., 2014 BCSC 974 [Gallina] at paras. 122–131.

[149]     In considering the defence of mitigation, courts are slow to determine that a plaintiff has acted unreasonably in making good-faith decisions about what treatment and employment steps they will take to address an injury. As stated in Paniccia Estate v. Toal, 2012 ABCA 397 at para 86, cited in Gallina at para. 128:

… the court only lightly reviews the decision of a person injured to try to mitigate his loss. Courts are extremely slow to criticize good-faith decisions by victims of torts about both whether to take steps in mitigation, or which steps, or how much expense or risk to incur in doing so.

Let’s review the arguments raised by both parties, following which we will enumerate the Court’s conclusion.

Defence arguments:

• Defence states that a set of accommodations was put in place by employer
• The accommodations were such that it would have allowed the plaintiff to continue working with modifications
• The said modifications were well suited for the Plaintiff’s individual needs
• The Plaintiff should have continued with working the 250 shift
• The 250 shift would have provided full-time employment (hence the wage loss should be reduced)
• The defence concedes that the 250 shift would be without the added income for shift differential
• In the alternative, the defence states that the plaintiff could have performed the job at the front entrance of the prison (another role)
• The position of the Defendant is that the Plaintiff was unreasonable in failing to pursue workplace accommodation
• The position taken by the defence is that the Plaintiff has failed to mitigate his damages
• The Court states that the argument is “not express on this point” but that the failure to mitigate pertains specifically in relation to the Plaintiff’s claim for damages for loss of past and future earning capacity.
• Ensure the defence is clear – the Court is identifying the claim as it is not clear – that the argument is that the Plaintiff could have reduced rather than entirely eliminated his income loss by more actively pursuing accommodation.

Plaintiff’s arguments:

• Remember, the duty to prove that the Plaintiff has failed to mitigate is that of the Defendant
• The Plaintiff in this case states that the defendant has not established that any accommodation could have in fact reduced the plaintiff’s losses given his current level of pain and incapacity
• The Plaintiff outlined the history of three years post collision
• The Plaintiff showed how he engaged in a “continuous attempt at accommodation” over the 3 year period
• The Plaintiff attempted the 250 shift
• The Plaintiff limited his hours
• The Plaintiff sought assistance from colleagues in performing tasks he was unable to perform (ensure you identify these tasks)
• The Plaintiff used is leave bank to take needed time off work
• The Plaintiff enrolled in the deferred salary program which led to an unsuccessful attempt to modify his employment duties to accommodate his injury
• The plaintiff states that his current circumstances must be considered, including his age and lack of transferable skills and training

Keep in mind, that while the Defendant has a duty to prove that the Plaintiff failed to mitigate his/her damages, the Plaintiff must still be in a position to respond to this defence, and therefore, the details of the Plaintiff’s response to these arguments is very important.

Take note of the Plaintiff’s specific arguments in this case.  Be sure that this type of information is properly documented during the course of the litigation. In this case, the evidence was gathered over a three year period.

Anticipate that these arguments in relation to the accommodations in the workplace will be made more frequently in light of the new legislation.  Be prepared to respond with information that will be helpful to the Court.  Any Plaintiff should be documenting details of accommodations made, attempts to comply and enumerate the tasks that were difficult and challenging, and assistance required by colleagues in every respect.  It is always recommended that legal advice is sought in any matter dealing with a claim in a vehicle action.

Conclusion on Duty to Mitigate

[154]     The issues as they relate to mitigation are clouded by the fact that there is no evidence of direct discussions between the plaintiff and his employer at the time he went off work in July 2018 in relation to the availability of workplace accommodation. The evidence of Mr. Marshall of possible modified duties for the plaintiff is of a hypothetical nature rather than specific to the plaintiff’s individual needs and limitations.

[155]     While I accept that the plaintiff could have been more proactive in exploring the possibility of accommodation at the time he left work at the end of July 2018, I do not find that the plaintiff’s conduct was so unreasonable as to amount to failure to mitigate. As counsel points out, the plaintiff did undertake extensive effort between the time of the Accident and the time he went off work to find some balance that would permit him to continue in his employment. I accept that by the end of July 2018, he had simply reached the limits of his capacity to cope with his back pain and constant fatigue. In my view, it was reasonable at that point in time for the plaintiff to decide to focus on his health.

[156]     Furthermore, and in any event, I agree with the plaintiff that the evidence does not establish that the plaintiff could have been accommodated in any capacity given his condition by the end of July 2018. The accommodations suggested by the defendant assume that the plaintiff’s capacity was as described by Ms. Hull as of March 2018. However, I have accepted the plaintiff’s evidence that his functioning had declined by the end of July 2018 to the point that he was unable to work.

[157]     For these reasons, I reject the defence of mitigation and decline to make any deduction from the damages I have assessed for the plaintiff’s loss of past and future income earning capacity. I do note that my assessment of damages for future loss of earning capacity has accounted for the prospect that the plaintiff may return to work, perhaps on a modified basis. I assume that the plaintiff will continue to explore employment options with his employer to the extent that his health improves. However, I cannot conclude on the evidence that the plaintiff has unreasonably failed to pursue such avenues to date.

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