Sorochan vs. Bouchier, 2014 ABQB 37
The above citation is an Alberta Judgment of Mr. Justice Belzil on January 20th, 2014 which involved primary pain to the plaintiff’s lower back from a bulging lumbar disc. The plaintiff at the time of trial was 65 years of age and resides in Two Hills, Alberta as a retired teacher.
C.T. scans revealed moderate spinal stenosis at the L3-4 and L4-5 level which the neurosurgeon said would be expected of a person of her age. The orthopedic surgeon for the plaintiff and the orthopedic surgeon for the defendant auto insurance company both agreed that the plaintiff has a 21% permanent partial disability.
One of the issues at trial was whether her current condition was from the pre-existing spinal stenosis and she would have ended up this way absent the accident or whether the motor-vehicle caused her current condition.
The court found that the plaintiff proved on a balance of probabilities the defendant caused only half of the injury to her that resulted in a 10.5% permanent partial disability attributable to the motor-vehicle accident.
In the end the J. Paul Belzil awarded the following amounts:
- general damages for pain and suffering, $75,000, plus pre-judgement interest;
- loss of income for the period July 1st, 2007 to June 8th, 2013, nil;
- loss of pension benefits, nil;
- loss of income claim as assistant principal, nil;
- loss of housekeeping services to date of trial, $6,400;
- future loss of housekeeping services, $10,000;
- special damages, $2,000.
So the total Judgment is just over $90,000 for a woman at age 55, 10 years later goes to trial, still suffering, and is now aged 65 with a finding of a 10.5% permanent partial disability receives this astoundingly low amount from Mr. Justice Belzil.
Sorochan v Bouchier, 2015 ABCA 212 (CanLII)
Given the low award, the plaintiff appealed to the Alberta Court of Appeal which heard the case and filed its decision on June 22, 2015. One of the plaintiff’s arguments was that the trial judge, Justice Belzil, misapplied causation principles and made a deduction for pre-existing conditions contrary to the decision of Athey vs. Leonati which clearly held that non-tortious contributing causes of injuries, i.e. pre-existing conditions, do not reduce the extent of the wrongdoer’s responsibility. The Alberta Court of Appeal agreed that the trial judge was in error for making a deduction for her pre-existing condition. However, the Court of Appeal went on to say that the $75,000 awarded even at the end of the day was still an appropriate amount for general damages for pain and suffering and so did not overturn the actual amount despite the error of law on causation discussion.
Again, with the loss of housekeeping claim Justice Paul Belzil’s failure to attribute all of the plaintiff’s disability to the accident was an error and the deduction of 25% by the trial judge, the Court of Appeal commented, it was unclear where this came from. Therefore, the Court of Appeal restored the full amount of out-of-pocket expenses of $8,546 and the Court of Appeal also increased the future loss of housekeeping capacity from $10,000 to $20,000 for future loss of housekeeping services given her 10.5% permanent partial disability.
Loss of income, again, the Court of Appeal concluded that Justice Belzil made a palpable and overriding error in deciding that there was insufficient evidence at trial to award the plaintiff compensation for loss of future income. The Court of Appeal stated that the plaintiff proved this loss and awarded $50,820.00 as a result.
The Court of Appeal said that Justice Belzil, when he concluded that the plaintiff’s decision to retire was voluntary and that she failed to prove she would have retired at a later date had she not been in the motor-vehicle accident, was a palpable and overriding error. This is because firstly the Court of Appeal said Justice Belzil wrongly applied evidence as to the plaintiff’s retirement plans post-accident as if they were admissions of her intention had she not been injured in that accident. As well, the Court of Appeal said Justice Belzil wrongly drew a negative inference from her failure to apply for Long-Term Disability Benefits rather than retire, where that inference was not available on the evidence. Finally, Justice Belzil was in error when he supported his conclusion through reference to statistical data that was, in the Court of Appeal’s opinion insufficiently precise for that purpose. The Alberta Court of Appeal also overturned Justice Belzil on denying the loss of pension benefits from working less and awarded the plaintiff a global award of $15,000 for loss of pension benefits from working less.
Overall, it was a significant victory for the plaintiff at the Alberta Court of Appeal overturning Justice Belzil’s trial decision findings which the Court of Appeal found were replete with errors and unsupported assumptions in his reasoning.
Bottom line: if you are not happy with the trial decision – appeal! The appeal court in Alberta is always a minimum of three justices so you have a much better chance at receiving justice and a fair result as an injury victim than the trial with just one trial judge.
Handel Law Firm is Alberta’s personal injury law firm serving the communities and surrounding areas of Red Deer, Fort McMurray and Grande Prairie.