In a recent Supreme Court of BC decision referenced as Krepski v Valenciano, 2023 BCSC 2089 (CanLII) the test for failure to mitigate is discussed and referenced from a prior decision Quigley v Jonsen, 2019 BCSC 1812 (CanLII), which states:
[30] The defendants must prove that the plaintiff has acted unreasonably in not acquiring the recommended equipment, and prove the extent to which her damages would have been reduced if she had acquired and made use of the equipment: Chiu v. Chiu, 2002 BCCA 618 at para. 57. The reasonableness of mitigation efforts is tested on the basis of what a reasonable person in this plaintiff’s circumstances would do: Gill v. Lai, 2019 BCCA 103 at para. 26.
The Court took the position that the Plaintiff’s failure to attend for treatment that was recommended by the expert warrants a reduction in the award for future earning capacity by 10% for failure to mitigate. The Court states:
“…..the plaintiff’s failure to follow Dr. G’s recommendations for active rehabilitation warrants a reduction in the amount awarded for loss of future earning capacity. In this regard, I find that she did not undertake the treatment recommended by Dr. G, and that it is likely the treatment would have resulted in some improvement. As a result of the plaintiff’s failure to mitigate her damages, the award in respect of future earning capacity ought to be reduced by 10%, thereby decreasing that award to $22,500.”
Mitigation
[132] The defendants seek a reduction in the total amount awarded to the plaintiff based on a failure to mitigate. Specifically, the defendants argue that the plaintiff failed to follow the recommendations of Dr. G and other physicians.
[133] In 2020, Dr. G recommended a course of active rehabilitation. He did so again in 2023. However, it appears that the plaintiff did not complete either course of treatment. Dr. G testified that there is no way of knowing with certainty what effect the treatment would have had, but he would have expected to see improvement.
[134] Further, the plaintiff’s family physician, Dr. M, and Dr. S have both recommended counselling. The plaintiff attended between 6 and 10 sessions of psychotherapy with three different clinicians but did not continue that treatment. She testified that she has never liked counselling and associates such counselling with counselling that her parents forced her to undergo after they divorced. It was suggested to Dr. S that her mental health issues caused by the accident would have been resolved by psychotherapy, but he could not be certain. Dr. S also testified that people sometimes get better without treatment.
[135] To succeed in their argument on this issue, the defendants must prove, on a balance of probabilities, that the plaintiff acted unreasonably in not undertaking the recommended treatments, and they must prove the extent to which her damages would have been reduced if she had done so: Quigley at paras. 30–31. The reasonableness of mitigation efforts is tested on the basis of what a reasonable person in this plaintiff’s circumstances would do: Quigley at para. 30.
[136] The defendants have not persuaded me that the plaintiff’s decision not to attend counselling was unreasonable, or that attending counselling would have made a significant difference to the outcome.
[137] However, in my view, the plaintiff’s failure to follow Dr. G’s recommendations for active rehabilitation warrants a reduction in the amount awarded for loss of future earning capacity. In this regard, I find that she did not undertake the treatment recommended by Dr. G, and that it is likely the treatment would have resulted in some improvement. As a result of the plaintiff’s failure to mitigate her damages, the award in respect of future earning capacity ought to be reduced by 10%, thereby decreasing that award to $22,500.
The award in this case is noted below:
Conclusion
[159] In summary, Ms. Krepski is awarded damages under the following headings:
| Non-pecuniary damages: | $100,000.00 |
| Past loss of income: | $10,493.00
$24,842.00 |
| Future loss of earning capacity: | $22,500.00 |
| Cost of future care: | $6,200.00 |
| In-trust claim: | $12,000.00 |
| Special damages: | $15,122.40 |
| TOTAL | $191,157.40 |
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