The disputed footage showed the plaintiff reacting to suspected surveillance near his home construction site, getting into his truck, following the investigator’s vehicle, and at one point attempting to cut it off. The defence sought to rely on that video as part of its challenge to the plaintiff’s claimed limitations.

Minimal Probative Value

The court found that the video had little or no real probative value. The plaintiff’s case was not that he was incapable of ever driving a vehicle. Rather, his claim concerned his inability to perform the sustained and physically demanding work of commercial trucking. There was no meaningful dispute that he could still drive his own pickup truck for short trips.

Prejudice Outweighed Any Value

Relying on R. v. Seaboyer and Sweitzer v. The Queen, the court confirmed that even relevant evidence may be excluded where its prejudicial effect outweighs its probative value. Justice Veenstra accepted that the “car chase” nature of the footage risked creating hostility or disapproval toward the plaintiff and distracting from the real issues at trial.

Even though this was a judge-alone trial, ICBC surveillance was not automatically admissible. Where the footage is dramatic but does not meaningfully address the actual medical or vocational issues in dispute, the court may exclude it as more prejudicial than probative. This would be salient if it were a jury trial.

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The Supreme Court of British Columbia’s decision, 2025 BCSC 2006, stands as one of the larger personal injury awards in recent provincial history. This case was decided under the old tort type system, before the introduction of British Columbia’s “minor injury” and no-fault insurance model. It demonstrates how, under the former law, courts could properly compensate seriously injured people for all of their losses: physical, psychological, and financial.

Why This Case Matters

The case involved a multi-vehicle collision that left the claimant with ongoing vestibular dysfunction, migraines, cognitive fatigue, and neck pain. Despite liability being admitted, the defence disputed causation and the extent of damages. After extensive medical and economic evidence, the Court found that the claimant’s injuries were life-altering and permanent, awarding significant compensation across every category of damages: Non-pecuniary damages for pain and suffering;Past and future loss of earning capacity; Future care costs and housekeeping assistance; Special damages for out-of-pocket expenses

Comprehensive Case Presentation

The outcome was the result of thorough preparation and exceptional advocacy by Jacqueline Small, who acted for the plaintiff throughout the trial.

Key features of the case presentation included:

• High-calibre expert evidence in neurology, psychiatry, physical medicine, occupational therapy, and economics.

• Successful defence of expert admissibility, allowing the Court to consider specialized neurophysiology evidence about vestibular injury mechanisms.

• Compelling narrative evidence that connected medical facts to the claimant’s day-to-day realities, including the cognitive fatigue and sensory overload that limited her work and family life.

• Modern damages analysis, grounded in appellate authorities such as Rab v. Prescott and Athey v. Leonati, to quantify lifetime losses with precision.

The court repeatedly referenced the credibility and reliability of the plaintiff’s evidence and found the expert opinions presented on her behalf to be well supported and persuasive.

A Model of Effective Advocacy

The case also highlights the importance of preparation and precision in trial advocacy. Through careful cross-examination, Ms. Small exposed weaknesses in the opposing experts’ opinions, including incomplete record reviews and unsupported speculation. Her closing submissions on causation and mitigation were accepted by the Court.

Justice Giltrow rejected the defendants’ attempt to reduce damages for alleged failure to mitigate, finding that the plaintiff had made every reasonable effort to manage her symptoms and continue working.

This level of courtroom advocacy reflects the high professional standard expected in complex personal-injury litigation.

A Word of Caution: This Case Was Decided Before ICBC No-Fault

It is important for readers to understand that this case was decided under the former tort-based system, which applied to accidents before April 1, 2019. Under that system, injured people could sue the at-fault driver for full compensation,including pain and suffering, lost income, and cost of future care. Judges determined fair damages based on the evidence presented at trial.

Since then, however, major legislative reforms have dramatically eliminated the rights of accident victims in British Columbia:

• The “Minor Injury Cap” (effective April 1, 2019) restricts compensation for many soft-tissue and psychological injuries to a small fraction of what courts previously awarded.

• The “Enhanced Care / No-Fault” system (effective May 1, 2021) has eliminated most lawsuits entirely. Today, compensation is paid through ICBC-administered benefits, regardless of fault, and injured people cannot sue the driver who caused the crash except in rare circumstances.

Because of these changes, any accident occurring after April 1, 2019 is subject to major limitations on compensation and access to the courts.

If you were injured before these dates, your claim remains governed by the tort system. If your accident occurred after, you have severely limited legal options under the new law.

Final Thoughts:  Losing Access to Justice

The decision in 2025 BCSC 2006 is a landmark reminder of what access to justice looked like under the tort system. It showcases how thorough preparation, credible evidence, and experienced advocacy can lead to life-changing outcomes for those seriously injured by negligence.

Although legislative changes have since limited these rights, this case remains a powerful example of what the courts once achieved, and what dedicated legal representation can still mean for injured British Columbians seeking fairness and dignity in the process.

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The court reaffirmed the two-stage admissibility test articulated by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”), following R. v. Mohan, [1994] 2 SCR 9 and R. v. Abbey, 2009 ONCA 624. As summarized in Mand v. Cheema, 2024 BCSC 1701 at paras. 34–36, the party proffering expert evidence must first establish its:
a) relevance;
b) necessity to assist the trier of fact;
c) compliance with exclusionary rules; and
d) the existence of a properly qualified expert.

The second stage requires a discretionary balancing of the potential risks and benefits of the evidence.

Limits on Legal and Regulatory Interpretation

Justice Branch emphasized that experts must not step into the shoes of the Court or regulators. He relied on Walsh v. BDO Dunwoody LLP, 2013 BCSC 1463, where Justice Fitzpatrick held that expert opinions on domestic law are generally unnecessary and risk distorting the fact-finding process. Judges are presumed capable of interpreting domestic law without expert assistance.

This principle was further supported by The Owners, Strata Plan 4249 v. Travelers Insurance Company of Canada, 2018 BCSC 114, where Justice Adair rejected expert reports that attempted to interpret the Building Code, finding such interpretations to fall squarely within the purview of the Court.

Application to the Facts

Several expert reports were partially excluded for overstepping the permissible bounds. For example, portions of reports by Drs. Barrow and Andruski were struck because they expressed views on how Health Canada might interpret or apply its monographs. Justice Branch noted that while contextual references to regulatory frameworks are acceptable, assertions about how regulators should interpret those frameworks cross the line.

In contrast, Dr. Velazquez’s reports were largely admitted because they explained technical chemical matters from the perspective of a qualified expert, without assuming the role of a decision-maker. The Court emphasized that questions directed to experts must be framed to elicit opinions within their field of expertise, not interpretations of law or regulatory mandates.

Conclusion

Krishnan v. Jamieson affirms that expert evidence must stay within the bounds of technical expertise and not stray into legal interpretation or regulatory decision-making. The Court reiterated that the necessity and relevance of expert evidence are subject to strict scrutiny, especially where there is a risk of usurping the role of the judge or regulatory authority.

Key Cases Cited

• R. v. Mohan, [1994] 2 SCR 9
• White Burgess, 2015 SCC 23
• R. v. Abbey, 2009 ONCA 624
• Mand v. Cheema, 2024 BCSC 1701
• Walsh v. BDO Dunwoody LLP, 2013 BCSC 1463
• The Owners, Strata Plan 4249, 2018 BCSC 114

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Divisibility of Injuries

The Court reiterated the established principle from Athey v. Leonati that damages must be apportioned where injuries are divisible, that is, when distinct injuries result from separate causes and their consequences can be independently traced. In contrast, indivisible injuries are those where causation cannot be separated between multiple causes.

In this case, the trial judge found that the defendant was liable not only for the physical injuries but also for her ongoing mental health issues, which were not subject to any causal apportionment. However, Justice Gomery held that this was a legal error. While the ankle and back injuries were causally linked to the original 2018 incident, the claimant later suffered numerous unrelated injuries, such as from a motor vehicle accident in 2020, abdominal hernias, ovarian cysts, and other complications, none of which were attributable to 7-Eleven’s negligence.

Despite this, the trial judge treated the claimant’s sadness and depression as a monolithic, indivisible consequence of the original injury without making a necessary finding that the original ankle injury materially contributed to the psychological harm. This failure to analyze causation and address whether the mental health issues were themselves divisible rendered the damage assessment legally unsound.

Comparative Commentary: Behnke v. Pannu

This case can be directly compared with the Court of Appeal’s reasoning in Behnke v. Pannu, 2025 BCCA 182. In Behnke, the Court dealt with overlapping injuries from multiple incidents and carefully parsed out divisible and indivisible components. The critical question was whether certain injuries (notably psychological and functional ones) could be allocated between tortious and non-tortious causes. Like in 7-Eleven, the trial judge in Behnke failed to apply a robust divisibility analysis, although in Behnke the appellate court upheld the conclusion based on sufficient factual foundation.

However, 7-Eleven differs materially in that the trial judge entirely omitted the required analysis on causation and failed to grapple with the implications of Neufeldt v. ICBC, 2021 BCCA 327, a case that emphasized the need to separate out overlapping injuries when multiple incidents or conditions contribute to a plaintiff’s loss. Neufeldt cautioned that where injuries are divisible, especially with psychological consequences stemming from multiple events, the Court must not treat the entire aftermath as a single block of damage.

Justice Gomery underscored that, absent a finding that the ankle injury contributed materially to the psychological deterioration, it was legally improper to include the mental health consequences in the damages flowing from the 2018 incident. In contrast to Behnke, where overlapping injuries may have been indivisible due to temporal and functional overlap, 7-Eleven presented a clearer case for segmentation, as the claimant’s mental state had been significantly affected by independent, non-compensable injuries and social dislocation stemming from those later events.

Clarification of the Current Law in British Columbia

The Court’s ruling in 7-Eleven clarifies and reaffirms several key principles of BC tort law:

1. Mental Health as a Consequential Injury: Mental injuries, even when real and severe, must still be traced back to compensable injuries through appropriate factual findings. The presence of sadness and depression alone does not make a defendant liable in damages without causation analysis.

2. Mandatory Analysis of Divisibility: Courts must explicitly assess whether overlapping injuries or consequences, especially mental health conditions, are divisible when sequential, unrelated injuries occur.

3. Standard of Review: The decision confirms that the failure to apply the proper legal framework to causation and divisibility constitutes a legal error, subject to appellate correction even where factual findings may appear reasonable on their own.

4. Limitation on Judicial Inference: The Court signaled a warning to trial judges against conflating sympathetic evidence of current suffering with the legal requirements for causation. A plaintiff’s current state, however compelling, must be tied through evidence and reasoning to a specific tortious act.

7-Eleven v. Tommy reinforces that courts must clearly identify the causal connection between a defendant’s negligence and any claimed mental health injury, especially where the plaintiff has experienced multiple, unrelated subsequent injuries. However, this decision should not be viewed as raising an onerous barrier for plaintiffs. The requirement to assess divisibility and causation is not a rigid or overly technical evidentiary hurdle.

This decision does not signal a retreat from the compensability of mental health injuries. Instead, it is a reminder that trial judges must make the necessary factual findings and apply a clear causal lens when evaluating overlapping harms. The task is well within the ordinary function of a trial court, particularly given the increasing recognition of mental health as a legitimate head of damage in personal injury claims. This case provides clarification, not restriction, and encourages more precise reasoning without foreclosing fair compensation.

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Under s. 24(5), a plaintiff must demonstrate that all reasonable efforts have been made to ascertain the identity of the unknown owner or driver. In addition, s. 24(2) requires that ICBC be provided with notice of the accident within six months. While the plaintiff phoned ICBC the morning after the collision, she did not report a personal injury claim at the time, as symptoms had not yet emerged. She later retained counsel who placed newspaper ads seeking witnesses, but did not contact police, highway authorities, return to the accident site, or use social media or signage to find the source of the tire. Despite her personal hardships, caring for a young child, working nearly full-time, and being in an abusive relationship, the Court concluded she had not taken all reasonable steps required by s. 24(5).

Justice Saunders rejected the plaintiff’s argument that ICBC, as a public insurer, had breached a duty of good faith by failing to inform her of the need to identify the unknown driver or take specific investigative steps. The Court held that ICBC is under no legal obligation to advise claimants of their statutory duties under the hit-and-run provisions, even when a personal injury is reported. Because the plaintiff failed to satisfy the statutory prerequisites, her claim against ICBC was dismissed.

The hit-and-run provisions of s. 24 no longer apply to vehicle accidents occurring after May 1, 2021, when British Columbia was forced to a no-fault insurance model. This case remains relevant only for accidents occurring before that date.

The Unfairness of ICBC’s y Role as a Public auto insurance monopoly

The Eberhardt decision exemplifies the  persistent unfairness in how ICBC administers pre-May 2021 hit-and-run claims. As a state-mandated monopoly, ICBC controls access to compensation, yet is under no obligation to inform injured claimants of their legal duties—however obscure or technical those may be. The plaintiff in this case promptly reported the incident but was unaware of the strict investigatory steps required to preserve her claim. This knowledge gap, which ICBC could have easily remedied with a simple advisory, ultimately resulted in the complete denial of compensation.

Similar results have occurred in cases like Slezak v. ICBC, 2003 BCSC 1679, where claims failed due to technical deficiencies rather than merit. In both cases, the plaintiffs were left uncompensated, not because the injury lacked basis, but because of failure to navigate procedural traps unknown to the average driver.

Unlike a private insurer that competes for business, ICBC holds a monopoly and operates under a mandate to serve the public interest. Given this status, it is unjust that it owes no duty to guide claimants through legal requirements that only a lawyer might reasonably understand. Even a minimal duty to inform claimants—especially when they call ICBC immediately after an accident—would promote fairness and avoid disproportionate hardship.

Although s. 24 no longer governs post–May 1, 2021 accidents, many cases involving earlier incidents remain active. The courts’ continued unwillingness to impose even a basic advisory duty on ICBC highlights a misalignment between public expectations and legal doctrine in the administration of state-run insurance.

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Intervening Events

The  Court of Appeal addressed whether a defendant’s liability for injuries arising from a motor vehicle accident should be reduced where the plaintiff’s injuries were subsequently aggravated by non-tortious events. The defendant  argued that two intervening events, a slip-and-fall at work and a later motor vehicle accident, broke the chain of causation and should reduce his liability. The Court rejected this submission, reaffirming the principles established in Athey v. Leonati, [1996] 3 S.C.R. 458, and Blackwater v. Plint, 2005 SCC 58.

In Athey, the Supreme Court held that while a defendant is not liable for injuries they did not cause, damages may only be reduced where the defendant proves that an independent event caused or contributed to the plaintiff’s loss or that there was a real and substantial possibility the plaintiff would have suffered the loss regardless of the defendant’s negligence. The Court in Behnke confirmed this framework and held that the trial judge properly applied it. Despite the claimant’s subsequent injuries, the judge concluded that the defendant failed to establish that these events independently caused additional, severable harm. Rather, the subsequent events aggravated injuries that had already been caused in the first accident. Therefore, there was no basis to reduce damages on account of the later events.

Indivisible Injuries

The Court also addressed whether the injuries were divisible or indivisible for the purpose of apportioning liability. The Defendant submitted that the trial judge erred by presuming indivisibility and failing to conduct the proper legal analysis. The Court rejected this argument, finding that the judge had made a reasoned and factual determination that the neck, back, and shoulder injuries were indivisible, despite subsequent aggravation.

The leading authority cited on this point was Bradley v. Groves, 2010 BCCA 361, which held that where successive injuries merge into one condition and it is not possible to apportion the damage, the harm is indivisible, and full liability may rest with the first tortfeasor. The Court in Behnke also endorsed Neufeldt v. ICBC, 2021 BCCA 327, confirming that aggravation of an existing injury often results in an indivisible injury unless the subsequent harm is distinct and separable.

Justice Butler emphasized that indivisibility is a finding of fact, not a presumption, and the judge’s decision that the injuries could not be separated in a meaningful way was supported by the medical evidence and consistent with the governing legal principles. Therefore, the defendant remained fully liable for the entirety of the injury-related damages, despite later aggravating incidents.

The British Columbia Court of Appeal heard the matter and rendered its decision on June 6, 2025. The Court dismissed both the appeal and cross-appeal, affirming the trial judge’s findings on causation, indivisibility, and assessment of damages.

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In April 2025, a vehicle-ramming attack at Vancouver’s Lapu Lapu Day Festival tragically killed 11 people and injured many others. The incident has brought attention to the limitations in compensation available to victims and their families. These limitations stem from two key aspects of British Columbia law: the ICBC “Enhanced Care” no-fault insurance system (in effect since May 2021) and BC’s outdated Family Compensation Act (governing wrongful death claims). This article compares the current no-fault regime to the pre-2021 tort-based system, which was eliminated by the NDP government.

Enhanced Care No-Fault Insurance: Benefits and Maximums

Under ICBC’s Enhanced Care (no-fault) model, people injured in motor vehicle accidents receive accident benefits regardless of fault, but their right to sue the at-fault driver is largely removed. Instead, compensation is provided through a schedule of capped benefits. As of 2025, the key benefit maximums and features include:

1. Medical and Rehabilitation Benefits: There is no overall maximum limit for accident-related medical care and rehabilitation expenses under Enhanced Care. (Previously, under the old system, there was a $300,000 lifetime cap on medical/rehab coverage from ICBC’s Part 7 benefits.) All necessary treatments – physiotherapy, chiropractic care, counseling, medication, home modifications, etc. are supposed to be covered as needed. This unlimited coverage is meant to ensure long-term care for injured victims without running out of funds. However, these benefits have caps and most treatment will cost more than ICBC provides.
2. Income Replacement: Victims unable to work receive income replacement of 90% of net income, up to a gross annual income cap (the maximum insurable earnings). As of April 2025, the cap is about $119,000 gross per year. This means a maximum of roughly $107,000 per year (90% of $119k) in tax-free wage loss benefits. Higher earners cannot recover income loss beyond this cap under basic coverage (though optional “top-up” insurance can be purchased separately). By comparison, before 2021 the basic wage loss benefits were much lower (previously capped at a weekly amount), but an accident victim could sue the at-fault driver for full loss of income above the ICBC limit. Under no-fault, that lawsuit option is gone, and any earnings beyond the cap are uncompensated unless optional coverage was in place.
3. Permanent Impairment Compensation: For serious permanent injuries, ICBC pays a lump-sum based on the degree of impairment. For the most severe catastrophic injuries, the maximum lump sum is approximately $307,000 (indexed annually; this was the April 2025 maximum). Lesser (but still permanent) injuries receive a lower amount on a sliding scale. This is a one-time payment for loss of bodily function. Under the prior tort system, an injured person would instead claim non-pecuniary damages for pain and suffering (capped by case law at roughly $414,000 in 2025 dollars for the most severe cases) – a category now largely eliminated under no-fault (see next section).
4. Death Benefits (Funeral and Counseling): If a crash is fatal, Enhanced Care provides fixed benefits to the family to cover specific expenses. As of 2025, ICBC will pay up to $10,616 for funeral and burial costs per deceased victim. In addition, each immediate family member of the deceased (spouse, partner, child, parent, grandparent, sibling, etc.) is entitled to up to $4,440 for grief counseling services. These amounts are prescribed in ICBC’s regulations and are updated periodically. They help with practical expenses and offer some support for emotional trauma through counseling, but they do not compensate families for the pain and suffering of losing a loved one (no amount for grief beyond counseling is provided, as explained later).
5. Death Benefits (Lump-Sum to Survivors): Enhanced Care also pays lump-sum compensation to the surviving dependants of a person killed in a crash. The amounts are determined by the victim’s role (spouse or parent) and the survivors’ status:
   • Spousal Benefit: A surviving spouse or common-law partner receives a lump-sum based on the deceased’s age and income. ICBC uses a factor between 1 and 5 multiplied by the victim’s gross annual employment income (capped at the maximum insurable income) to calculate this benefit. Younger deceased earners yield a higher multiplier (reflecting more lost years of financial contribution), older victims yield a lower factor. If the deceased had no income (unemployed) and thus no income-based calculation, the spouse gets a minimum lump sum of $77,889 (2025 value). Example: If a 30-year-old victim earned $60,000/year, the surviving spouse might receive roughly 5 × $60,000 = $300,000; if a 60-year-old victim earned the same, the spouse might get around 1 × $60,000 = $60,000 (in both cases subject to the $119k income cap). The minimum ~$77.9k applies if the formula yields less or if the victim had no earnings. If there is no spouse, this spousal benefit amount is instead divided among any dependent children (see below).
   • Dependent Children: Dependent children of the deceased receive a separate lump-sum benefit. Each dependent child is entitled to an amount depending on their age at the time of the parent’s death, ranging from about $36,994 up to $69,764 per child. (A younger child gets closer to the maximum $69k, an older teen gets less, around $37k, reflecting fewer remaining years of dependency.) If the deceased was a single parent, the children receive two sets of benefits – their own dependent-child benefit plus a share of what a spouse would have received. This doubles up the compensation for children who have lost their sole caregiver.
   • Dependent Parents or Other Dependants: A parent of the deceased (or other relative) can also qualify for a lump-sum as a dependant if they were financially dependent on the deceased. For example, an elderly parent whom the deceased supported, or a disabled adult child dependent on the deceased, would each receive $36k–$69k based on age. Additionally, if a dependant is a person with a disability (unable to work), they receive an extra $34,076 on top of the base dependent amount.
   • Non-Dependent Family: If a fatally injured person leaves no spouse or financial dependants, ICBC provides a small default benefit to immediate family. In such cases, each surviving parent or adult child of the deceased (who wasn’t financially dependent) is given $17,346 as a lump sum (this is essentially a token amount acknowledging the loss, even though the family member did not rely on the deceased for support).

These Enhanced Care death benefits are preset by regulation, effectively a “chart” of pre-set amounts that apply regardless of the actual impact on the family. They replace what used to be determined through court in wrongful death lawsuits. Lawyers note that these fixed benefits are often far lower than what could be obtained under the old tort system for a deceased breadwinner. In fact, for families of victims of the Lapu Lapu tragedy, it’s estimated the new benefits will amount to only “tens of thousands of dollars” per child, roughly one-quarter to one-third of what the family might have recovered in a lawsuit under the previous system. This gap is discussed further in the comparison section below.

Limits Under the Wrongful Death Law

British Columbia’s Family Compensation Act (FCA) is the statute that governs wrongful death claims, i.e. lawsuits by family members when someone’s death is caused by another’s negligence or wrongdoing. The FCA is widely criticized as outdated and extremely limiting. Key points about the FCA as of 2025:

• Pecuniary Losses Only: The FCA limits recovery to pecuniary (financial) losses suffered by the survivors. This means family members can claim actual economic contributions lost due to the death – for example, the portion of the deceased’s income that would have supported the family, the value of lost household services, loss of future inheritance, etc. The law’s purpose is to put dependants in the financial position they would have been in had the death not occurred. While this can be substantial if the deceased was a primary breadwinner, it requires detailed proof and calculations. Crucially, no damages are allowed for grief, mental anguish, or loss of companionship under the FCA. In other words, there is no compensation for the emotional pain and suffering of losing a loved one – the law views such non-economic loss as “not recoverable.”
• No Statutory Bereavement Awards in BC: Unlike some provinces, BC’s FCA sets no fixed awards for the spouse, children, or parents of a deceased. For example, Alberta’s Fatal Accidents Act provides a set amount for bereavement: about $82,000 to a surviving spouse or parent, and $49,000 to each child (figures periodically adjusted). BC has no equivalent automatic bereavement payment. A reform bill introduced in BC in 2011 proposed adding such amounts (e.g. $75,000 to a spouse, $75,000 to split between both parents, and $45,000 per child), but this was never enacted. As of 2025, therefore, the FCA offers no prescribed dollar amounts for loss of a spouse/child/parent – any recovery must be proven as actual financial loss. In many cases (death of a child, an elderly parent, or anyone not supporting others financially), this means families recover little or nothing because there is no income to base a claim on. This harsh result has led advocates to say that under BC law these lives are treated as having “no value” in court compensation.
• Funeral Expenses: The FCA does at least allow families to recover reasonable funeral and burial costs from the wrongdoer. In a car accident context, however, ICBC’s no-fault benefits now already cover funeral expenses up to ~$10.6k, so a lawsuit for those costs is usually unnecessary.
• Family Members Who Can Claim: Only the deceased’s spouse, children, or parents (including common-law spouse and certain step-family) are eligible to claim under the FCA. Siblings or other relatives cannot sue for wrongful death benefits in BC. If multiple family members are eligible, there is just one collective lawsuit (brought by the estate on behalf of all) and any award is divided among them.

It is critical to note that with the advent of ICBC’s Enhanced Care in 2021, the ability to bring an FCA lawsuit for motor vehicle deaths has been virtually eliminated. By law, you cannot sue the at-fault driver for wrongful death if the death was caused in a motor vehicle accident, except in very narrow circumstances (criminal conviction – see next section).  Families are essentially limited to the benefits prescribed by ICBC. That means all those scheduled benefits (funeral, grief counseling, lump sums) discussed in the Enhanced Care section have supplanted the wrongful death lawsuit for motor crashes. If a victim died in a car incident, the family typically cannot pursue additional damages in court, even if the ICBC benefits fall short of their true financial losses. The total compensation under Enhanced Care for a fatality is often a small fraction of what a court might have awarded previously for loss of future earnings. Families of the Lapu Lapu tragedy, for example, may receive only modest lump sums (perhaps $50–$100k per family in some cases) instead of potentially several hundred thousand dollars had civil suits been possible.

No Compensation for Pain and Suffering Unless Driver is Criminally Responsible

One of the most significant limitations of BC’s no-fault system is the elimination of “pain and suffering” damages for accident victims. In a traditional tort claim, an injured person (or the family of someone killed) could seek non-pecuniary damages, a money award to recognize physical pain, emotional suffering, and loss of enjoyment of life. Under Enhanced Care, ICBC provides no equivalent benefit for pain, suffering or loss of amenity. All compensation is focused on economic losses and care. The only way to obtain money for pain and suffering now is to step outside the no-fault regime by meeting a specific exception: the at-fault driver must have committed certain serious Criminal Code offences.

• The Criminal Conviction Carve-Out: When it created Enhanced Care, the BC government included a narrow legal exception allowing lawsuits in cases of criminal drivers. If the at-fault driver is convicted of a prescribed Criminal Code offense related to the crash (such as impaired driving, street racing, or in the Lapu Lapu case, potentially serious charges like dangerous driving or murder), then victims may sue that driver for damages not covered by ICBC. In such a lawsuit, one can claim non-pecuniary damages (pain and suffering) and potentially punitive damages against the offender. This is the only scenario where pain-and-suffering compensation is available for motor vehicle accidents post-2021. However, even this path has practical challenges and limitations:
  • No-Fault Benefits Remain Primary: Even if a lawsuit is allowed, ICBC’s accident benefits still cover the victim’s medical bills, income loss, etc. The lawsuit would be only for additional damages like pain and suffering or punitive awards. There is no double recovery – for example, one cannot sue for lost wages that ICBC already pays for. Essentially, the tort claim would be mostly for the intangible losses (since tangible losses are largely handled by ICBC).
  • Conviction Required: The exception kicks in only upon conviction of the driver. This means the victim must wait until the criminal process concludes and the driver is found guilty. This can take years, and if the driver is not convicted for any reason, the right to sue never arises. Notably, if the driver is found Not Criminally Responsible (NCR) due to mental illness (i.e. not convicted of a crime), then by law the exception does not apply. In the Lapu Lapu incident, for example, if the accused driver were to be found NCR due to a mental disorder, the victims’ families would not be able to sue for pain and suffering at all – they would be confined to the ICBC no-fault benefits, despite the horrific losses. The relevant statute (Insurance Vehicle Act, s. 116) specifically requires a criminal conviction for civil action to be permitted. This creates an “all or nothing” situation dependent on the outcome of criminal court.
  • Limited Practical Recovery: Even when a lawsuit is allowed (say the driver is convicted), the actual ability to recover significant money is dubious. Under the old ICBC system, the at-fault driver’s insurance policy would cover the damages awarded in a lawsuit. However, under the new model, ICBC generally does not indemnify a convicted criminal driver for pain and suffering awards (the driver effectively loses insurance coverage for those illegal acts). Any court-awarded non-pecuniary or punitive damages would likely have to come from the offender’s personal assets. If the driver is not wealthy (which is often the case), then even a successful lawsuit may result in no actual payout. In sum, the criminal-conviction exception is largely symbolic, it offers a chance at justice on paper, but rarely yields substantial compensation in reality. It also delays any closure for victims, as they must await the outcome of criminal proceedings and then civil proceedings, potentially fighting for years.
• No Pain & Suffering for Families of Deceased: It’s worth emphasizing that wrongful death claims in BC have never included pain and suffering for surviving family under the FCA, and this remains true. Even if a driver is convicted, the estate of the deceased might claim the victim’s pre-death pain and suffering (if the victim survived for a time before passing), but the family members’ own grief is not compensable in a lawsuit except via statutory bereavement damages, which BC lacks. The criminal driver exception doesn’t change the categories of damages available in wrongful death; it only lifts the bar on suing the driver. Since the FCA doesn’t allow family claims for grief, a conviction would mainly allow the deceased’s estate to sue for non-pecuniary damages the victim could have claimed if they had lived (which is often minimal if death was instantaneous) or possibly for punitive damages (which courts are hesitant to award if the driver was already punished criminally). In other words, for fatal cases, even the rare right to sue may not translate to meaningful compensation for the bereaved.

In summary, pain and suffering compensation has been eliminated for the vast majority of motor vehicle victims in BC. Only in extreme cases of criminal wrongdoing can victims or families seek those damages, and even then, collection is uncertain. This was a deliberate trade-off of the no-fault scheme: it prioritized guaranteed care benefits and lower premiums over full civil accountability. As a result, many victims feel the system “re-victimizes” them by denying acknowledgment of their suffering.

Comparison of No-Fault 2025 vs. Pre-2021 Tort-Based System

The following table highlights the differences in available compensation between the current Enhanced Care no-fault regime and the previous tort-based insurance system (prior to May 2021). This is particularly focused on areas of pain and suffering and wrongful death claims, which have seen the most change:

Notes: All figures are in Canadian dollars and reflect 2025 values where applicable. sources confirming these details include ICBC documentation and BC legislation analysis.

Summary

The 2025 Lapu Lapu Festival tragedy highlights a painful reality in British Columbia’s current system: survivors and families receive limited financial compensation for catastrophic losses. Under ICBC’s Enhanced Care no-fault scheme, victims are assured coverage for medical care and some income support, but they cannot claim damages for pain and suffering, and families of those killed are restricted to preset benefits that often fall far short of their actual losses. The Family Compensation Act offers no relief for the deep grief of losing a loved one – it never has, and the move to no-fault has further constrained even the economic claims that were once possible. Only if an at-fault driver is found criminally responsible (through conviction) can victims step outside this regime, and even then, practical recovery is uncertain.

As of 2025, BC’s approach remains that caring for immediate needs outweighs tort-based compensation. The Trial Lawyers Association, argue that this re-victimizes those hurt or bereaved by denying them full justice and recognition of their suffering. The comparison with the pre-2021 system shows a trade-off: some benefits (medical/rehab coverage) are now more accessible, but the ability to obtain comprehensive damages, especially for intangibles like pain, trauma, or the loss of a family member’s companionship,  has been sharply curtailed. Families like those of the Lapu Lapu victims face the added frustration that, in legal terms, their loved ones’ lives seem to have a low predetermined value under the no-fault schedule.

This article is based on British Columbia law as of 2025, including the Insurance (Vehicle) Act and regulations (Enhanced Accident Benefits) governing ICBC’s no-fault scheme, and the Family Compensation Act (RSBC 1996, c.126) for wrongful death. The information in this publication is intended to provide general information only and is not intended to provide coverage, legal or professional advice. You should follow the more detailed wording and requirements of current applicable laws and regulations, even if they contradict the wording and requirements set out in this publication.

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In Lewis v. Gibeau, 2025 BCCA 127, the Court of Appeal addressed the trial judge’s error in applying the capital asset approach rather than the earnings approach to assess Ms. Lewis’s loss of earning capacity. The earnings approach is typically used when a plaintiff has a clear, established work history and measurable income loss, while the capital asset approach is reserved for plaintiffs with uncertain career paths or no clearly quantifiable earnings history.

Ms. Lewis had worked as a hairstylist for nearly 40 years, maintained a consistent client base, and had a steady earnings trajectory prior to the collision. After the accident, she continued to work until January 2022, when she retired prematurely at age 58 due to collision-related injuries. The Court found that the trial judge incorrectly reasoned that there was “no identifiable loss of income” simply because Ms. Lewis’s income did not immediately decline post-accident — overlooking that her complete cessation of work in 2022 represented an identifiable and measurable loss.

Given Ms. Lewis’s stable and proven earning history, the Court concluded that the earnings approach should have been applied. The trial judge’s reliance on the capital asset approach was found to be an error in principle, leading the Court of Appeal to substitute its own assessment of loss based on the earnings method, valuing the past and future loss of earning capacity accordingly.

Use of Contingencies

The Court also found that the trial judge improperly applied negative contingencies to reduce Ms. Lewis’s damages award. Two specific contingencies were identified: (1) the possibility that Ms. Lewis could have continued working part-time if she spaced out her workdays, and (2) the possibility of recovery from her frozen shoulder condition through surgery.

The Court ruled that the trial judge failed to properly analyze the relative likelihood of these contingencies impacting Ms. Lewis’s future earning potential. Further, the judge incorrectly applied these future uncertainties to both past and future loss of earning capacity, despite the fact that neither contingency had materialized by the time of trial. As a result, the award for past loss should not have been reduced at all based on these speculative factors. As stated:

[70] First, the trial judge erred by assessing the claims for past and future loss of earning capacity in a single analysis, and in considering the contingencies without acknowledging that they applied only to the future loss and not the past loss. Neither: (i) the possibility that Ms. Lewis might have been able to return to work on a staggered schedule, nor (ii) the possibility that Ms. Lewis’s frozen shoulder might improve, had materialized by the time of trial. These contingencies therefore had no relevance to Ms. Lewis’s past loss of earning capacity claim. Their only possible relevance was in relation to the claim for future loss of earning capacity. The judge did not acknowledge this in her reasons, and it is impossible to tell how it factored into her “global” award of $89,641.02 for loss of past and future earning capacity.

For future loss, the Court accepted that while some adjustment for the frozen shoulder recovery was appropriate, its likelihood of meaningfully restoring Ms. Lewis’s ability to return to work was minimal. The Court therefore applied only a 10% reduction to the future loss award for that contingency, finding the original 70% reduction (implicit in the trial award) to be excessive and unsupported.

In the result, the Court awarded Ms. Lewis $25,955 for past loss of earning capacity (subject to statutory tax deductions) and $206,583.56 for future loss of earning capacity, replacing the trial judge’s lump sum of $89,641.02.

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 Failure to Instruct Jury on Obligations Between Drivers

The appellant argued that the trial judge failed to provide sufficient legal instruction on drivers’ duties, particularly the obligations to yield when merging, to avoid impeding traffic, and to maintain safe following distances. The Court of Appeal found that the trial judge’s generalized standard-of-care instruction was insufficient in light of both parties’ closing submissions, which referenced the legality of the plaintiff’s driving conduct. This failure constituted a legal error, as the jury was not adequately guided to apply the law to the facts.

 Potential Misunderstanding of Illegality and Liability

The Court held that the jury may have been misled into believing that any illegality on the plaintiff’s part (e.g., driving slowly or merging unsafely) automatically absolved the defendant of liability. However, the law requires an assessment of whether the defendant exercised reasonable care, even when another driver may have been partially at fault or breached a statute.

 Miscarriage of Justice Warranting a New Trial

Given the trial judge’s omission and the influence of potentially misleading submissions by counsel, the Court concluded that a properly instructed jury might have reached a different verdict. The failure amounted to a miscarriage of justice warranting appellate intervention.

The appeal was allowed. A new trial was ordered on the issue of liability.

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Failure to Take Recommended Medication

The claimant appealed a personal injury damages award arising from a 2016 motor vehicle accident caused by a TransLink bus. While the respondents admitted liability, the trial focused on damages. The trial judge reduced various heads of damage by 70%, finding the claimant failed to mitigate her losses by declining pharmaceutical treatments, including Botox. In almost every report, the medical experts recommended various forms of pharmaceutical treatment for the appellant’s injuries. The claimant lawyer conceded her knowledge of the recommendations. The Court of Appeal did not however endorse the use of the law of agency in these circumstances.

The Court of Appeal held that the trial judge applied the correct legal test for mitigation: whether the claimant acted unreasonably in refusing treatment and whether those treatments would have lessened her injuries. The judge found that both treating and non-treating physicians had recommended pharmaceutical options that the claimant failed to pursue without reasonable justification. The Court upheld this finding.

Misapprehension of Evidence

The claimant argued the trial judge misapprehended expert medical evidence by favouring the opinion of a neurosurgeon, Dr. Heran, over that of other specialists. The Court of Appeal found that Dr. Heran was properly qualified to give evidence and did not defer to other experts inappropriately. His conclusions were supported by his own expertise and consistent with the trial evidence. The trial judge’s preference for his opinion was not an error.

Credibility Findings

The claimant also challenged findings regarding her credibility, particularly concerning underreported income and treatment decisions. The Court found that while the judge approached her credibility cautiously, he was entitled to accept parts of her evidence. The claimant’s actions, such as submitting false tax returns and failing to pursue treatment, supported the trial judge’s conclusions.

Cross Appeal – Loss of Income

The respondents cross-appealed, arguing the trial judge erred in accepting the claimant’s testimony about income loss. The Court rejected this, affirming that despite her credibility issues, the claimant’s evidence was supported by witnesses and documents. The judge’s findings were within his discretion.

Outcome

The appeal was allowed only to reverse the 70% reduction of special damages. The remainder of the appeal and the cross appeal were dismissed. Each party was ordered to bear their own costs.

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