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30 Sep 2019

Court refuses to order advance payment due to lack of evidence supporting same

by Jason Caissie
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Comeau v. Thomas, 2019 NBQB 187

The Plaintiff Christina Comeau was involved in a motor vehicle accident on January 16, 2011.  The Plaintiff had a sporadic work history and had been laid off from her waitress/bartending job 8 months before the accident and was not working at the time of the accident.

The Plaintiff filed a motion seeking a $65,000 advanced payment related to loss of income, day care costs for her child, loss of services and cost of care. 

Since her accident, the Plaintiff had been involved in two subsequent motor vehicle and was also convicted of assault and spend 3 months in jail.  She continued to work sporadically and in 2017 started working as a “31 Consultant” for a company named Thirty-One Gifts. 

The Plaintiff was relying on a Functional Capacity Evaluation and a Cost of Care and Loss of Valuable Services Report to support her claim.  The Defendant argued that the Functional Capacity Evaluation was of limited value as the Plaintiff had not showed up for the 2nd day of testing and many of the findings relied on the Plaintiff’s subjective complaints of pains and limitations.  The Court agreed with the Defendant.

The Court found that there was no medical evidence to support the Plaintiff’s argument that she was unable to earn the same income as before the accident, and also found that there was no evidence that the Plaintiff would actually undergo the medical treatments suggested in the Cost of Care and Loss of Valuable Services Report, as there was evidence that the Plaintiff had not followed prior medical recommendations related to physiotherapy.

Justice Doyle ultimately decided that there was insufficient evidence to establish that the trial judge will more likely than not award the damages that the Plaintiff was seeking as an advanced payment.  The Plaintiff’s motion was dismissed, and no advance payment was awarded.

You can read Comeau v. Thomas in its entirety here.

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