Plaintiff Denied A Pre-Trial Lost Income Award Due To Credibility Questions

Arsenault v. Comeau, 2015 NBQB 34

On August 28, 2008, Tammy Lee Arsenault was stopped at a yield sign when her car was hit from behind by a vehicle driven by Rachel Comeau. Arsenault went to hospital with complaints of soft-tissue injuries and jaw pain.

After the car crash, Arsenault continued to run a day-care from her home, then worked at an after-school gymnastics program, then at an elder-care business. In May of 2011, Arsenault left her job, claiming that pain from her 2008 injuries prevented her from continuing to work.

Arsenault filed a lawsuit against Comeau. In January of 2015, she filed a Motion requesting a pre-trial award for all her lost income between 2011 and 2015. She also asked for monthly income replacement payments up until her claim was brought to trial.

Under New Brunswick's Insurance Act, a Plaintiff hurt in a car crash can request an advance payment of financial losses suffered before trial. The Motion Judge hearing the request will make an early award if satisfied that the Plaintiff will, more likely than not, receive this money after trial.

Here, the Motion Judge refused Arsenault's request. Characterizing the crash as a minor one, and noting that Arsenault's injuries are subjective and difficult to pin down, the Motion Judge stated that before he could make any early...