The following three cases have been referenced as the “Benefit Revival Trilogy” cases which were referenced in Symons v. Insurance Corporation of British Columbia, 2014 BCSC 1883 (CanLII) “Symons”, and upheld by BC Court of Appeal in Symons v. Insurance Corporation of British Columbia, 2016 BCCA 207 (CanLII):
- Brewer v. Insurance Corporation of British Columbia,  B.C.J. No. 2031 (S.C.),
- Halbauer v. Insurance Corporation of British Columbia, 2002 BCCA 5 (CanLII)
- Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213 (CanLII)
The facts of Symons:
“In Symons BCSC, the plaintiff had brought a summary trial application for a declaration that she was entitled to TTD benefits under Part 7 of the Regulation. The plaintiff had been healthy before the accident and the medical evidence established that she was totally disabled immediately following the accident from injuries sustained in the accident. She was paid TTD benefits initially and then the plaintiff returned to work full time. Over time, the plaintiff’s back injury worsened until she required surgery and was off work for a time before she returned to work on a reduced schedule. Unfortunately, the plaintiff suffered a further set back and was unable to return to work at all. These injuries were found to be causally related to the accident.”
The issue raised in Symons was that in order for a plaintiff to receive benefits under s. 86 of the Insurance (Vehicle) Regulation, the plaintiff must establish that TTD benefits were being paid by ICBC at the 104 week period, and that at the 104 week mark, the plaintiff was totally disabled as a result of injury sustained in the accident. The argument raised was that if the Plaintiff is not totally disabled and receiving TTD benefits at that time period (104 weeks), and a disability occurs post 104 weeks which is causally related to the injury sustained in the collision, the Plaintiff is not entitled to revive TTD Benefits.
Arguments were raised by Symons that this interpretation was incorrect and that “a purposive approach” should be taken such that if the plaintiff’s injury was continuing at the end of 104 weeks after the accident, then s. 86 TTD benefits should be paid even if total disability and a claim for same occurs later.
After reviewing the “Benefit Revival Trilogy” cases, the Court in Symons states:
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:
- 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.
- 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.
- 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.
For Clear Understanding, this is a necessary quote:
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.]
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.
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 (CanLII) 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.
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.
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.
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.
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.)
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.”
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.
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.
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 CanLII 837 (SCC),  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 (CanLII) at para. 92 et seq.
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 CanLII 1 (SCC),  2 S.C.R. 618 and Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC),  1 S.C.R. 513.
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.
The Court concluded:
“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.”
ICBC appealed the decision in Symons without success. The Court dismissed the appeal and concluded that “benefits may be revived where the original injury later causes total disability. This is true even when total disability occurs after the 104 week mark. This interpretation is consistent with the context and object of the Act and the jurisprudence.”
The Court of Appeal stated:
“if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.”
“Benefit Revival Trilogy” Cases Referenced in:
Powell v. I.C.B.C., 2016 BCSC 1432 (CanLii):
The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident.
The defendant said that the plaintiff’s claim should be dismissed because the evidence did not establish that the plaintiff was unemployable as a result of injuries sustained in the accident.
The Court concluded:
As the treating physicians of the plaintiff, the opinions of Drs. Bootsman and Badii carry considerable weight. Their opinions are detailed both as to history and diagnosis. The credibility of the plaintiff has not been undermined. The doctors’ conclusions as to causation and employability stand alone as Dr. Sovio did not opine on this matter.
After consideration of all of the evidence, it is concluded that the plaintiff has established entitlement under s. 86(1) of the Regulation.
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