Martyn v. Bleakney, 2025 NBKB 91
By: Fiona Costello (Articled Clerk)
This decision relates to a motor vehicle accident which occurred May 21, 2021, and resulted in serious injuries to the Plaintiff. With the trial scheduled for September 2026, the Plaintiff brought a motion seeking advance payment of special damages for loss of income and cost of care under section 265.6 of the Insurance Act. The issue before the Court was the appropriate quantum of the advance payment.
The Court’s analysis relied on the established two-part test from Agnew v Smith, 2001 NBCA 83. In the first stage of analysis, the Court must be satisfied on a balance of probabilities that the final judgment will include an order for the payment of special damages. In the second stage of analysis, the Court must determine the value of special damages a plaintiff is likely to prove at trial and any potential impact of defences and offsets on the advance payment amount.
In the context of this motion, the Defendant acknowledged the first stage of the analysis was met; however, regarding the second stage, the Defendant disputed the Plaintiff’s proposed quantum of the loss of income claim. The disagreement arose from three key factors: the applicable timeframe, the projected income of the Plaintiff, and projected residual earning capacity of the Plaintiff.
With respect to the applicable timeframe, the Defendant calculated loss of income to the date of the Motion, while the Plaintiff calculated the loss of income to December of 2026. The Court rejected both proposed timeframes and concluded that an assessment of loss of income to the prospective date of trial, September 2026, was most appropriate.
Regarding projected income, the Court considered the Plaintiff’s earnings in the two years prior to the accident and saw no evidence that future earnings would substantially differ. It therefore settled on an annual average income based on past earnings. In considering the Plaintiff’s residual earning capacity, the Court noted that her image as an “active young mother pursuing a homesteader, off-grid life” was integral to her personal brand and success within the company she worked for and found that her ability to maintain this image had been diminished due to her injuries. The Plaintiff’s future expected income was based on the continued receipt of commissions of salespeople linked to her, which the Court used to estimate her residual earning capacity. The Court deducted the Plaintiff’s business expenses, residual earning capacity, a 12% income tax rate, Section B Indemnity Benefits, and advance payments already made by the Defendant.
In addition to the advance payment of loss of income, the Plaintiff also sought an advance payment for cost of care; however, the Plaintiff did not quantify the cost of future care in her Motion and the Court found that there was no reliable basis to determine whether granting an advance for cost of care would result in an overpayment. The Court therefore denied an advance payment under this head of damage.
