Arsenault v. Comeau, 2015 NBQB 34

Judge:Morrison, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 29, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 34;(2015), 430 N.B.R.(2d) 332 (TD)
 
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Arsenault v. Comeau (2015), 430 N.B.R.(2d) 332 (TD);

    430 R.N.-B.(2e) 332; 1121 A.P.R. 332

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. FE.014

Renvoi temp.: [2015] N.B.R.(2d) TBEd. FE.014

Tammy Lee Arsenault and Cody Arsenault by His Litigation Guardian, Tammy Arsenault (plaintiffs) v. Rachel Nicole Comeau and Daniel Comeau (defendants)

(F/C/191/10; 2015 NBQB 34; 2015 NBBR 34)

Indexed As: Arsenault v. Comeau

Répertorié: Arsenault v. Comeau

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

February 4, 2015.

Summary:

Résumé:

In April 2008, the parties were involved in a motor vehicle accident. The plaintiff sued for damages for injuries suffered. She moved for an order for advance payment under s. 265.6 of the Insurance Act and rule 47.03 of the Rules of Court. The plaintiff claimed advance payment for special damages, i.e., loss of income, cost of medications, treadmill and orthopedic bed and continuing costs (loss of income, personal trainer, psychologist and medications).

The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion in part, ordering advance payment of prescription medications. The motion was otherwise dismissed.

Practice - Topic 5205

Trials - General - Advance payment of damages - In April 2008, the parties were involved in a motor vehicle accident - The plaintiff sued for damages for injuries suffered - She moved for an order for advance payment under s. 265.6 of the Insurance Act and rule 47.03 of the Rules of Court - The plaintiff claimed advance payment for special damages, i.e., loss of income - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion - The threshold question was whether it was probable that the plaintiff would recover special damages for loss of income - Given the lack of objective evidence to support the plaintiff's injuries and the subjective nature of her complaints the plaintiff's success at trial hinged on her credibility - It was impossible to make that kind of assessment based on the affidavit evidence in this motion - Further, there was evidence to support the view that the plaintiff's pre-trial income was negligible and that she would have continued in this work but for the accident - There was also evidence that the plaintiff's post-accident income was greater than that of her pre-accident income raising a serious question of whether the plaintiff had suffered any loss - Finally, there were real issues concerning whether the plaintiff could have engaged in an alternative form of employment thereby significantly mitigating her losses - See paragraphs 9 to 22.

Procédure - Cote 5205

Procès - Généralités - Paiement anticipé de dommages-intérêts - [Voir Practice - Topic 5205 ].

Cases Noticed:

Smith v. Agnew (2001), 240 N.B.R.(2d) 63; 622 A.P.R. 63; 2001 NBCA 83, refd to. [para. 5].

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167; 1011 A.P.R. 167 (C.A.), refd to. [para. 22].

Counsel:

Avocats:

J. Brent Melanson, for the plaintiffs;

Steven R. Barnett, for the defendants.

This motion was heard on January 29, 2015, by Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on February 4, 2015.

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