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Vancouver ICBC Claim – How to Prove Income Loss

Vancouver ICBC Claim – How to prove income loss with limited financial records.

In the 2005 decision of Pelletier v Khaw [2005] BCJ No. 1966 the Plaintiff, Cynthia Pelletier was self employed earning a living working with horses including operating a pony-riding business she called Laughing Stock.

Ms. Pelletier operated the business as a “cash and barter” system and kept little or no financial records.  However, she was still able to receive compensation in excess of $110,000 for her lost income as a result of a Vancouver ICBC Accident claim.

If you have been injured in cyclist, pedestrian, rollerblade, truck, motorcycle, or car accident and can make an ICBC claim (in Vancouver, the Lower Mainland, or anywhere else in the Province) but are worried about whether or not you can prove how much income you have lost as a result you owe it to yourself to contact the experienced ICBC claims and personal injury lawyers at MacLean Law.

We have four conveniently located ICBC and personal injury claims offices in Vancouver, Surrey, Kelowna and Fort St John.  You can reach us in Vancouver at 604-602-9000, or from anywhere in North America by calling toll free 1-877-602-9900.  You may also contact us online by completing our simple online form.  Your initial consultation is always FREE, and if you hire us you don’t pay us anything until your case is settled.

On January 18, 2001, Ms. Pelletier was injured in a motor vehicle collision in Vancouver, en route to the airport.  Ms. Pelletier was driving a 3/4 ton pickup truck and heading to the Vancouver airport when she was struck, without warning.

The impact from the collision caused Ms. Pelletier’s head to hit the driver’s side window and her left knee to hit the emergency brake handle.  Following the collision, Ms. Pelletier says that she was stiff and in a lot of pain.  She suffered from bad headaches and her left eye constantly twitched. She had “sharp achy” pains in her neck and two fingers on her left hand were numb.  She had shooting pains in her knee and says that it was “agony” to get in and out of a vehicle and that it was “difficult” to negotiate stairs.  She says that her neck pain radiated down her back from her shoulders to her mid-back and below.  She described herself as, in a word, a “mess.”
In relation to her work, the injuries prevented her, and continue to prevent her, from operating her pony-riding business without considerable assistance.  She quickly found that she could no longer lift children onto the ponies, or walk for more than 20 minutes.  She could no longer stoop to clip the ponies.  She turned down business (estimated at $8,600) and, to keep the business operating, she hired help: a farrier to maintain the ponies, and a pony-ride assistant.

As for other ranch duties, Ms. Pelletier was prevented from:

(a) removing manure and dumping it;

(b) leading, handling, and training horses because if they “act up” she doesn’t have the strength to control them;

(c) lifting the harrow used to keep the ground of the arena level;

(d) winding a manual horse-trailer hitch;

(e) picking up feed bags; and,

(f) saddling a horse with western and show saddles.

After the collision Ms. Pelletier was unable to properly care for several of the horses that she owned. She consequently sold some for a loss and gave some away. She described it as a “fire sale” to cut her losses because the condition of the horses was rapidly declining and, along with it, their worth.

Ms. Pelletier claimed that her business was a growing and profitable enterprise at the time of the accident, notwithstanding that she did not report the income to the Canada Revenue Agency.  She sought damages for loss of business revenue and additional expenses that she incurred as a result of the accident.
The defendant argued that Ms. Pelletier did not have a viable and ongoing business prior to the collision. In support of this contention, the defendant relied upon income tax returns which did not report income from self-employment in the years 1996-2000.
The defendant also pointed to a lack of documentation to support Ms. Pelletier’s testimony regarding unreported income from Laughing Stock Ranch that she claimed to have earned.

In rendering his decision the Honourable Mr. Justice Bernard indicated the following:

In relation to Ms. Pelletier’s equestrian business, I am satisfied that, at the time of the accident, it was a small business, but one that was viable and growing, with healthy future prospects (many of which have come to fruition). I accept that it was a small, rural, “cash and barter” business and that its records (including tax returns) do not accurately reflect the revenue it generated.

I find that Ms. Pelletier took reasonable steps to keep the business running and her “dream” alive, by: (a) hiring others to do the physical tasks she was no longer able to perform; and (b) sharing pony-ride profits with Michele Chasles.

The special losses claimed by Ms. Pelletier arise from revenue losses sustained in the early stages of her injuries and extra costs incurred because of her inability to perform physical tasks herself.

Documentary evidence of these amounts is unsatisfactory and, in some instances, non-existent. However, documentary evidence is not the only method of proof.  The gist of the collective viva voce [live, spoken testimony] evidence in the plaintiff’s case is that these losses and expenses occurred, and I am satisfied that this is so.

It is the quantification of the losses which is problematic. In this regard, the plaintiff asserts that where the figures are not proved by documentation, they are conservative estimates. In other words, the plaintiff has put forward the lowest amount in recognition of unsatisfactory documentary evidence.

In many circumstances, the absence of documentary evidence would be troubling and perhaps raise a concern about the legitimacy of the claims. In the instant case, however, I accept the evidence of Ms. Pelletier that she is a chronically poor record-keeper and that, at the relevant times, she was struggling with her injuries, endeavouring to keep her business alive, and not thinking about proving expenses for the purposes of litigation.

It is important not to lose sight of the nature of this business enterprise. It was not one run out of an office, with bookkeepers and support staff to maintain careful records of business transactions. It was a “one-woman show” described as a “cash and barter” business.

For the foregoing reasons, the plaintiff is awarded the special damages sought, totaling $110,624.00.


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