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Court Clarifies the Weight of Video Evidence and the Law on Advance Payments

LeBlanc v Losier and Losier, 2023 NBQB 23.

Reading Time: 6 minutes (approx.)

By: Weston McArthur (Articled Clerk)

Tammy Leblanc, the Plaintiff was involved in a motor vehicle accident with Julien and Guy Losier (the Defendants) on September 15, 2018, in Bartibog, New Brunswick. The Plaintiff took action against the Defendants and subsequently brought a motion for the advance payment of special damages for lost income pursuant to section 265.6 of New Brunswick’s Insurance Act, RSNB 1973, c I-12.

The Plaintiff stated that she used to be employed as a full-time nurse but had been unable to work since the accident. While the Defendants conceded on liability, they argued that the motion for advance payment was premature given that not all documents had been disclosed yet and the medical evidence was inconsistent.

Justice Ferguson dealt with several legal issues in this case.

The first involved the use and weight of video surveillance as evidence in the courtroom. The Defendants submitted video evidence of the Plaintiff as support for their argument that her limitations were not as severe as she claimed, but Justice Ferguson found that the activities shown in the video did not convince him of the point the Defendants attempted to prove, writing “[t]his video evidence does not paint Ms. Leblanc in a convincingly negative light” [para 52]. Further, Justice Ferguson noted that video evidence must be weighted by considering all other evidence available and found that the Plaintiff’s work history and medical records conflicted with the video evidence.

The second issue was whether the Plaintiff was entitled to an advance payment. Justice Ferguson applied the framework outlined by the New Brunswick Court of Appeal in Smith v Agnew, 2001 NBCA 83. The first question under the Smith test is whether the Plaintiff will “more probably than not” be awarded the special damages in the final judgement [para 14]. If this is answered in the affirmative after considering whether the defendant will establish a complete defence, the Court must then ask whether the defendant will likely prevail with “particular defences they have pleaded” [para 64]. An example of one of these defences could be contributory negligence.

Justice Ferguson felt that the Plaintiff met the burden at the first stage of Smith test on the preponderance of the evidence. Regarding the second step, Justice Ferguson did not address the defences that the Defendants pled because it was unknown whether they would ultimately prevail on these. Instead, he noted that there remained considerable uncertainty with respect to the factual and legal significance of several pieces of evidence. For example, one of these was “the significance of the change in work status to parttime from fulltime leading up to the accident” [para 66].

Justice Ferguson outlined his approach to calculating the amount of the advance payment for lost income at paragraph 68. He stated that “I do not believe that quantification of this award in this instance should represent a percentage of what will more likely than not be proven at trial. Instead, it represents a conservative calculation of a portion of provable lost income to the standard required” [emphasis provided].  Without outlining his calculations, Justice Ferguson ruled in favour of the Plaintiff and found that the advance payment for lost income was $97,833.50.

Link: https://www.canlii.org/en/nb/nbkb/doc/2023/2023nbqb23/2023nbqb23.html?autocompleteStr=2023%20nbqb%2023&autocompletePos=1

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