The onus of proof lies with the Plaintiff in establishing that the Plaintiff is entitled to wage loss benefits under Sections 80 and 86 of the Insurance (Vehicle) Regulations.
The following cases are referenced in this blog post:
Malkin v. Crown Life Insurance Co. (1989), 1989 CanLII 2898 (BC SC), 56 D.L.R. (4th) 296 (B.C.S.C.) at p. 307 Rose v. Paul Revere Life Insurance Company (1991), 1991 CanLII 2340 (BC CA), 62 B.C.L.R. (2d) 48 (C.A.) Halbauer v. Insurance Corporation of British Columbia, 2002 BCCA 5 (CanLII) Andreychuk v. RBC Life Insurance Company, 2008 BCCA 492 (CanLII) Ntibarimungu v. Insurance Corporation of British Columbia, 2013 BCSC 2207 (CanLII) Wright v. Sun Life Assurance Company of Canada, 2015 BCSC 776 Kozhikhov v. Insurance Corporation of British Columbia, 2015 BCCA 515 (CanLII) Powell v. ICBC, 2016 BCSC 1432 (CanLii)
Once the Plaintiff has established a prima facie case for entitlement, then the onus shifts to ICBC to prove that the Plaintiff is not entitled to these benefits.
The Plaintiff’s burden (the test) is to prove on a balance of probabilities that:
- They were an employed person at the time of the collision;
- Injury was sustained in the collision;
- That they were disabled from their employment as a result of those injuries; and
- The disability occurred within 20 days from the date of the collision.
See Kozhikhov v. Insurance Corporation of British Columbia, 2015 BCCA 515 (CanLII) at paras. 25-26
The onus is on the plaintiff to establish that he is disabled under the Plan: Rose v. Paul Revere Life Insurance Company (1991), 1991 CanLII 2340 (BC CA), 62 B.C.L.R. (2d) 48 (C.A.). The defendants concede, however, that if the plaintiff establishes a prima facie case that he is entitled to disability benefits, the onus shifts to the defendants to lead evidence that the plaintiff is not entitled to benefits. The ultimate onus rests on the plaintiff if there is conflicting evidence as to disability: Malkin v. Crown Life Insurance Co. (1989), 1989 CanLII 2898 (BC SC), 56 D.L.R. (4th) 296 (B.C.S.C.) at p. 307.
As “Rose v. Paul Revere” is a leading authority and states that the disability under the “plan” must be reviewed, I wanted to offer some facts of this specific case, which was summarized quite well in Wright v. Sun Life Assurance Company of Canada, 2015 BCSC 776:
“The leading authorities in B.C. in relation to this type of policy wording are Rose v. Paul Revere Life Insurance Co. (1991), 1991 CanLII 2340 (BC CA), 62 B.C.L.R. (2d) 48 (C.A.) and Andreychuk v. RBC Life Insurance Company, 2008 BCCA 492 (CanLII).
In Rose (a case that, co-incidentally, involved a dentist), Mr. Justice Taylor (for the court) discussed a number of issues relevant to this case, including the burden of proof where (as here) the insurer has accepted a claim and paid benefits for a time on the basis of “Total Disability,” and then terminated payments.
On the facts in Rose, the plaintiff was diagnosed as suffering acute depression and hypertension associated with his work as a dentist. He left his practice, and for a period of 15 months, the insurer paid benefits under a policy that provided:
“Total Disability” means that because of sickness or injury:
- You are unable to perform the important duties of your regular occupation; and
- You are under the regular and personal care of a Physician.
The insurer then terminated benefits on the basis that the plaintiff was no longer totally disabled, even though medical opinion evidence indicated that the plaintiff could not return to dentistry. As of trial, the plaintiff was working as the manager of a sporting goods store. His medical opinion evidence did not indicate he was suffering from any underlying major psychiatric or phobic disorder. Rather, his symptoms were only likely to recur if he returned to the practice of dentistry. Dr. Rose’s action, seeking a declaration of entitlement to benefits under the policy, was dismissed at trial.
In framing the issues on the appeal, Mr. Justice Taylor wrote:
 The case is one which turns, in my view, very much on the wording of the policy. It is not, in my view, a disability policy in the broadest sense of the term, but one which protects the insured from income loss during the treatment phase of a sickness causing total disability and in the event the insured suffers one of four forms of permanent disability.
After referring to specific provisions in the policy in issue, Mr. Justice Taylor then wrote:
 So the policy protects the insured against income loss due to disability caused by sickness for so long only as the insured is “under the regular and personal attendance of a Physician” . . . and provided that the sickness “requires the regular and personal attendance of a licensed physician” . . . (my emphasis), unless the sickness results in the loss of speech, hearing, sight or the use of two limbs, in which case benefits are payable without continuing attendance of a physician. It is of obvious importance in this case that the policy does not cover loss of income due to inability to work resulting from sickness not under regular treatment by a physician except when it results in loss of speech, hearing, sight or the use of two limbs. Except in those defined cases, benefits cease when the treatment phase of a sickness ends.
In my opinion, Mr. Justice Taylor’s comments apply here. The Policy is one that protects the insured from income loss during the treatment phase of an Injury causing “Total Disability” (as defined), and in the event the insured suffers from one of five forms of permanent disability (described in the Policy as “Presumed Total Disability”). In the latter case, the insured is not required to be under the regular care of a physician. However, other than in cases of “Presumed Total Disability,” the Policy does not cover loss of income due to inability “to perform the essential duties of [the insured’s] Regular Occupation” resulting from Injury that is not under “the regular care of a physician.”
One of the issues on the appeal in Rose raised the question: on whom does the onus of proof lie in an action on such a policy where the insurer has acknowledged the existence of a valid claim, and paid benefits under the policy, but later asserts that conditions have so changed that benefits are no longer payable? See Rose, at para. 15. Dr. Rose argued that the onus of proving that the disability had ended was on the insurer, and it had not been met. Implicitly, Dr. Wright makes the same argument in this case.
After reviewing the authorities, and noting that, in accordance with the principle normally applied in civil cases that the onus of proof, or the “ultimate risk of non persuasion,” rested on the plaintiff Mr. Justice Taylor wrote:
 . . . In the end, in my view, the fact that the insurer has at one time accepted a claim is something which may or may not weigh in the scales against the insurer, depending on the nature of the coverage and the precise wording of the policy.
 In the present case it seems to me that the insured had the burden of showing that he was still being regularly treated by a physician for a totally disabling sickness, as defined by the policy, after the date when the insurer ceased paying benefits, and that the fact that the insurer had admitted that the insured was earlier suffering from such a sickness and under such treatment, by paying benefits under the policy, involves no admission which can assist the plaintiff in this case.
In my opinion, that same analysis applies based on the wording of the Policy (which includes a specific provision that proof satisfactory to Sun Life of continued disability may be requested by Sun Life at all reasonable times). Dr. Wright has the burden of showing that, during the period after October 2001 and to trial, he was still being regularly treated by a physician as a result of Injury.
“Physician” in the context of the Policy provisions means a medical doctor. Being under the care, for example, of a chiropractor or other medical or health professional is insufficient. See: Rose, at para. 25.
The standard of proof was also discussed in Powell v. ICBC, 2016 BCSC 1432 (CanLii)
Disability benefits for employed persons
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 corporation shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b): …
Disability beyond 104 weeks
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.
The burden rests with the plaintiff to establish a right to wage loss benefits under these sections: but, once a prima facie case for entitlement has been established, the evidentiary burden shifts to ICBC (Halbauer v. Insurance Corporation of British Columbia, 2002 BCCA 5 (CanLII) at paras. 51-55 (Halbauer); Cai at para. 46). Although Cai may seem to suggest that the burden upon the plaintiff is a lower standard, the burden is always upon the plaintiff to establish entitlement to benefits under s. 80 by proving on the balance of probabilities that she was an employed person at the time of the accident, that she sustained injury in the accident, that she became totally disabled from employment as a result of her injuries, and that this occurred within 20 days of the accident (Kozhikhov v. Insurance Corporation of British Columbia, 2015 BCCA 515 (CanLII) at paras. 25-26).
A plaintiff will be totally disabled if she is unable to do substantially all the material acts of the occupation in substantially the usual and customary manner (Halbauer at para. 20). For this reason, the plaintiff’s medical experts must show an understanding of the general requirements of the plaintiff’s job and then opine as to the physical requirements of the job and whether as a result of injuries sustained in the accident, the plaintiff cannot do her job (Ntibarimungu v. Insurance Corporation of British Columbia, 2013 BCSC 2207 (CanLII) at para. 5, aff’d  B.C.J.No. 316 (C.A.)).
(…the underline is my emphasis).
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