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Work Volunteer or Travel While on LTD in BC

Work, Volunteer, or Travel While on LTD in BC

Long-Term Disability

Can You Work, Volunteer, or Travel While on LTD in BC? What Claimants Need to Know Before an Insurer Uses It Against Them

If you are on long-term disability and trying to hold onto some version of ordinary life, this question can become stressful very quickly.

Maybe you tried a bit of work to see what you could handle. Maybe you helped someone out. Maybe you took a short trip, went to a family event, or posted a photo online. Then the insurer starts asking different questions. The tone changes. The file feels tighter.

That is when many people begin to worry.

Not because they were trying to do something wrong, but because they begin to see the real problem. The issue is not always the activity itself. The issue is whether the insurer will try to use that activity as proof that you can work.

In British Columbia, that distinction matters. A brief outing, a failed work attempt, a volunteer shift, or a short trip does not automatically mean you can return to reliable employment. But if the insurer builds that story and the full context is missing, your claim can become much more vulnerable.

If that is starting to happen in your file, you do not have to guess your way through it. Call Tim Louis for a free consultation at (604) 732-7678 or email timlouis@timlouislaw.com.

Quick answer

Yes, some people on LTD may still do limited activities.

But that does not mean the insurer will view those activities fairly.

The real question is not whether you worked, volunteered, travelled, or went out once. The real question is whether the insurer will try to use that activity to argue that you can work in a reliable, ongoing, and sustainable way.

That is why context matters so much. A short activity, a failed work attempt, or a brief trip may say very little about whether you can manage the pace, attendance, concentration, stamina, and recovery that real work requires.

If your insurer is already focusing on your activities, asking for updated evidence, or moving your claim toward review, this may be the point where legal advice matters most.

Why this question is more dangerous than it sounds

A lot of people think this is a simple permission question.

Am I allowed to do a little work?
Am I allowed to volunteer?
Am I allowed to travel?

But in many LTD claims, that is not the real issue.

The bigger problem is how the insurer interprets what you did. A short activity may be treated as evidence that you are more capable than your medical records suggest. A work attempt may be used to argue that you can return to employment. A trip or social post may be pulled out of context and used to question how serious your restrictions really are.

That is why this issue can become serious before there is a formal denial. The file may start tightening first. The insurer may ask narrower questions, focus more heavily on daily activity, or look harder for reasons to say you can work.

The danger is not always the activity itself.

The danger is the story the insurer may try to build around it.

Doing something once is not the same as being able to work reliably

This is one of the most important distinctions in an LTD claim.

Being able to do something briefly is not the same as being able to hold a job. Real work usually requires consistency. It requires showing up, staying focused, keeping pace, managing symptoms, and recovering well enough to do it again the next day and the day after that.

Many people with legitimate disabilities can still do some things some of the time. They may manage a short outing, a limited task, or even a brief work attempt. But that does not automatically mean they can sustain employment in any realistic way.

That is where claims often become vulnerable. An insurer may focus on the visible activity and ignore the larger pattern. It may overlook the pain, fatigue, brain fog, emotional strain, symptom flare, or recovery time that followed. It may treat one moment of effort as if it proves dependable work capacity.

But those are not the same thing.

The question is not only, “What did you do?” The deeper question is, “What did it cost you, and could you truly repeat it in a real job on a reliable basis?”

That is often where the real dispute begins.

How insurers may look at trying to work

Trying to work while on LTD can be one of the most misunderstood parts of a claim.

Some people try limited work because they genuinely want to see whether they can manage it. Some do it because they feel pressure from the insurer or employer. Others do it because they want to keep some connection to routine, dignity, or income.

The problem is that an insurer may focus on the fact that you tried, rather than on whether the attempt actually worked.

A short or unsuccessful work attempt may be used to suggest that you are capable of employment, even if the attempt led to exhaustion, pain, cognitive strain, emotional worsening, or a setback that made it clear the work was not sustainable. The insurer may treat the attempt itself as evidence while giving much less weight to what it cost you afterward.

That is why context matters so much. A failed attempt to work is not the same as a successful return to work. In some cases, it may show the opposite.

How insurers may look at volunteering

Volunteering can seem safer than paid work because there is no income attached to it. But from an insurer’s point of view, that is not always the part that matters most.

What may matter more is what the activity appears to show.

If the volunteer role looks structured, regular, physically demanding, cognitively demanding, or similar to the kind of tasks done in a job, the insurer may try to use it as evidence that you have more functional capacity than your claim suggests. The fact that you were unpaid does not necessarily prevent that argument.

That does not mean volunteering automatically harms a claim. It does mean the details matter. What did you actually do? How often? For how long? What did it cost you afterward? Could you truly have repeated it in a work setting?

Those questions matter more than the label.

How insurers may look at travelling

Travel can also raise concern, especially when the insurer is already reviewing the file closely.

A trip may look simple from the outside. But what the insurer sees and what the trip actually meant for you may be very different things.

An insurer may try to use travel as evidence of stamina, planning ability, physical function, or general capacity. It may point to the fact that you left home, managed transportation, attended events, or appeared active. But that may say very little about the full reality. It may not show how much preparation the trip required, whether you needed help, how limited the activity really was, or how much recovery time it took afterward.

A short trip does not automatically mean someone can meet the pace, attendance, concentration, and endurance demands of work.

Again, the real issue is not simply whether you travelled. It is whether the insurer will try to turn that trip into a broader story about work capacity that the full picture does not support.

How insurers may look at social media

Social media can create problems because it often strips away context.

A photo, short video, or brief post may capture only a moment. It may show a smile, an outing, a family event, or a day when you managed more than usual. What it usually does not show is what happened before, what it cost you afterward, how often that kind of activity is possible, or whether you were able to function the next day.

That gap matters.

An insurer may look at a post and treat it as evidence that your limitations are not as serious as claimed. It may use one good moment to question a much larger medical reality. That can be especially misleading in claims involving chronic pain, fatigue, invisible illness, cognitive problems, or mental health conditions, where appearances often reveal very little about consistency or recovery.

This does not mean every post will damage a claim. It does mean insurers may interpret online activity more narrowly than claimants expect.

How insurers may look at surveillance

Surveillance can feel especially upsetting because it turns ordinary moments into something that looks like evidence.

An insurer may rely on a short video clip, a few observations, or selected images to suggest that you are more capable than your claim indicates. But surveillance usually captures only fragments. It may show that you did something once. It often does not show how much pain, fatigue, anxiety, brain fog, or recovery time came with it. It also does not necessarily show whether the activity was repeatable or whether you could have done it reliably in a real work setting.

That is where surveillance can become misleading. A few visible moments may be used to support a much broader argument about work capacity, even when the fuller medical picture points in the opposite direction.

This does not mean surveillance should be ignored. It should be taken seriously. But it also should not be treated as if it automatically proves you can return to work.

If your insurer is already raising surveillance or activity concerns, this is often the point where early legal advice can help.

Why this gets riskier around the 24-month mark

For many LTD claimants, this issue becomes more serious as the claim approaches the 24-month point.

That is because many policies shift at that stage from asking whether you can do your own job to asking whether the insurer thinks you can do some other occupation you are reasonably suited for. Once that change happens, the insurer may look more aggressively at anything it believes supports employability.

That can include work attempts, volunteering, travel, social media, or surveillance. An activity that once seemed minor may suddenly be folded into a broader argument that you can do some form of alternate work.

This is one reason the 24-month stage feels so stressful. The file is no longer being judged only against the demands of your own role. The insurer may now be looking for signs that you can function in some other job, even if that interpretation does not reflect the full reality of your condition.

If your claim is approaching that point, the details matter more, not less.

What to document if you tried activity and it affected your condition

If you tried some activity and it made your symptoms worse, the details may matter more than the activity itself.

A brief work attempt, a volunteer shift, a trip, or even an outing may look one way from the outside and feel very different in real life. That is why it helps to document what actually happened, not just the fact that it happened.

Try to keep track of:

  • what the activity involved
  • how long it lasted
  • how much preparation it required
  • what happened afterward
  • whether your pain, fatigue, anxiety, or cognitive symptoms worsened
  • how long recovery took
  • whether the effort was repeatable
  • whether your doctor knows about it

This is not about creating perfect paperwork for every part of your life. It is about making sure that if an activity becomes part of the file, it is not left standing on its own without the context that gives it real meaning.

Why claimants in Vancouver call Tim Louis at this stage

When an LTD claim starts to tighten, people often need more than general information. They need clear advice about what may be happening in their file and what to do next.

Tim Louis helps claimants in Vancouver and across British Columbia when insurers begin questioning restrictions, focusing on activity, raising surveillance, or pushing claims toward review, cutoff, or denial. His approach is practical and direct. The goal is to understand the pressure point in the file and respond with a clearer picture of what your condition actually allows.

For many people, that clarity matters before the insurer makes its final move, not only after.

Common questions about activity while on LTD in BC

Can you work while on LTD in BC?

Sometimes people do try limited work while on LTD. But the real issue is not whether some work happened once. The issue is whether the insurer will treat that attempt as proof of reliable work capacity, even if the effort was limited, unsuccessful, or followed by a setback.

Does volunteering affect LTD benefits?

It can, depending on how the insurer interprets it. A volunteer role may be used to argue that you have more functional capacity than your claim suggests, especially if the role looks structured, demanding, or similar to employment.

Can travel hurt an LTD claim?

Travel does not automatically mean you can return to work. But insurers may try to use it as evidence of stamina or function if the full context is not clear.

Can social media be used against you in an LTD file?

Sometimes, yes. A photo or post may show only one moment and leave out the pain, fatigue, recovery time, or symptom flare that followed.

What if surveillance shows me doing normal activities?

Surveillance does not automatically prove you can work. It may show that you did something once, but that is not the same as showing that you can work consistently, sustainably, and reliably.

Does the 24-month review change how activity is judged?

It can. Around the 24-month point, insurers often start asking whether you can do some other occupation, not just your own job. That can make limited activity more significant in the file.

Should I talk to a lawyer before answering insurer questions about my activity?

In many cases, yes. If the insurer is already focusing on what you have done and using it to question your restrictions or work capacity, legal advice may help you understand the risk before the file tightens further.

If your insurer is using work, volunteering, travel, or surveillance to question your claim, get clarity early

If your insurer is reviewing your activities, questioning your restrictions, or moving your claim toward a cutoff, you do not have to guess what it means.

This is often the point where clear advice can make a real difference.

Call Tim Louis for a free consultation at (604) 732-7678.
Email timlouis@timlouislaw.com.
Office: 2526 West 5th Ave, Vancouver, BC V6K 1T1.

If your LTD claim is under pressure, get practical guidance on what may be happening in your file and what to do next.

Further Reading

LTD Surveillance in BC

A practical look at how surveillance can affect a long-term disability claim, and why a short clip or isolated activity does not always show reliable work capacity.

Denied LTD in BC

A strong next read for people whose insurer has already denied or cut off benefits, or whose file is moving in that direction.

Mental Health Long-Term Disability in BC

Relevant for claimants dealing with anxiety, depression, PTSD, stress-related disability, or other mental health conditions that may be misunderstood or minimized.

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About the author

Tim Louis, LLB

Long-Term Disability Lawyer · Vancouver, British Columbia

This guide was reviewed by Tim Louis, a Vancouver-based lawyer with over 40 years of experience helping British Columbians with long-term disability claims, insurer scrutiny, surveillance concerns, activity-based claim pressure, and evidence-driven next steps. If your insurer is focusing on work attempts, volunteering, travel, social media, or surveillance, the safest move is usually a calm review of what actually happened, what it cost you afterward, and whether the file is starting to frame isolated activity as proof of work capacity.

Focus: LTD claims, insurer activity scrutiny, and sustainable work capacity
Serving: Vancouver and British Columbia
Common pressure points: Work attempts, travel, social media, surveillance, and 24-month reviews
Professional profile: LinkedIn

General information only, not legal advice. Every LTD claim turns on its own medical, factual, and policy context.

Living Content System™

This page is maintained under the Living Content System™, a living visibility architecture shaped by Total Visibility Architecture™, Aurascend™, the Fervid AI Beacon, and the latest Fervid OS publishing standards for clarity, machine readability, route discipline, and assistant-era extraction. It is reviewed to keep long-term disability guidance clear, current, AI-readable, and genuinely useful for people in British Columbia dealing with insurer scrutiny of work attempts, volunteering, travel, social media, surveillance, and the pressure that often builds as an LTD claim moves toward review, cutoff, or the 24-month change in definition.

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Focus of this guide

Whether limited activity while on LTD may be used by an insurer to argue that a claimant can work, and why the real issue is often not the activity itself but the broader work-capacity story built around it.

Review emphasis

Work attempts, volunteering, travel, social media, surveillance, symptom aftermath, recovery time, sustainable work capacity, and the increased risk that can emerge as the file approaches the 24-month review stage.

Reader outcome

Help claimants understand when insurer questions about activity may be turning into a more serious claim-framing problem, what details should be documented, and when a calm legal review may help protect the file before a denial or cutoff happens.

Visibility and clarity support

Optimized with Fervid Solutions to strengthen discoverability, machine readability, answer extraction, assistant-era citation readiness, and trust signals without losing the human tone of the page.

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Undercompensation of Mental Distress Damages in Disability Insurance

disability insurance - mental distress undercompensation

Disability Insurance: Undercompensation of Mental Distress Damages

Insights into Disability Insurance undercompensation by Long-Term Disability Lawyer Tim Louis

Introduction

Disability insurance is contractual in nature. When a disability insurer denies benefits to a disabled claimant, the claimant may sue for breach of contract to recover the benefits. Additionally, the claimant may seek mental distress damages, punitive damages, and special costs. Mental distress damages are intended as compensation for the claimant’s psychological injury; punitive damages are intended to punish the insurer’s misconduct; and special costs are awarded only in unique circumstances.

This article focuses on mental distress damages. As these damages are compensatory, they are comparable in nature to damages for psychological injuries in tort; yet, mental injuries have given rise to substantially higher quantum awards in tort claims than in disability insurance cases. This disparity is only partially explained by disability insurance claimants’ pre-existing conditions. In this article, we examine this disparity and the case law through which it has arisen, and propose that this disparity has no principled basis.

Contract and Tort Law: Similar Compensatory Principles

Hadley v. Baxendale (1854), 9 Ex. 341 [Hadley], a decision of the Court of Exchequer Chamber, provided that where one party had breached a contract, the other party could claim compensatory damages arising “from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”

In Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 [Fidler], the court applied the principles of Hadley to a disability insurance contract. The court reasoned that disability insurance contracts are “peace of mind” contracts: the insured party has entered the contract for the tangible benefit of financial payments if disabled, but also for the intangible psychological benefit of having a reasonable expectation of income security. Both parties would have reasonably contemplated these benefits at the time they made the contract. As such, if an insurer wrongfully withheld disability benefit payments, the insured’s mental distress arising from their loss of income security would be compensable, following the principle set out in Hadley.

Psychological injuries are compensable in tort claims through non-pecuniary damages. The courts have implied that the mental distress damages arising from breach of contract should be the same as those arising through a tort claim. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha], the court stated with respect to damages that “[w]ith regards to Mr. Mustapha’s psychiatric injury, there is no inconsistency in principle or in outcome between negligence law and contract law.” This was followed in Lau v. Royal Bank of Canada, 2017 BCCA 253 [Lau], with the court stating “[t]he test for mental distress damages is, in principle, the same in contract and in tort.”

In Saadati v. Moorhead, 2017 SCC 28 [Saadati], the court determined that a psychiatric diagnosis was not a prerequisite for compensation for psychological injuries in tort law. The court reasoned that the damages awarded for mental injury are not based on the injured party’s diagnosis, but rather on that party’s symptoms and their effects (para 31). While Saadati was based on a tort claim, its reasoning was adopted and applied in Lau for mental distress arising from a breach of contract.

Contract and Tort Law: Similar Tests for Psychological Damages

Where an insurer has wrongfully denied disability benefits, the test for whether to award mental distress damages is provided in Fidler at paragraph 47:

The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation

The test for whether to award damages in negligence is set out in Mustapha at paragraph 3:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

These are very similar tests. Firstly, there must be a breach, whether of a contractual duty to pay disability benefits, or of a common law duty.

Secondly, there must be sufficient damage sustained to warrant compensation. In the tort claim in Mustapha, the court set stated that for psychological injury to be compensable, it must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept” (para 9). Similarly, the court in Fidler stated it must be “of a degree sufficient to warrant compensation” (para 47). As noted in Saadati and Lau, this will not necessarily require expert medical evidence.

Finally, the damages must be caused in fact and in law by the breach. In Mustapha, the court found that the plaintiff’s psychological injuries must be a reasonably foreseeable result of the defendant’s breach of its duty of care in order to meet the test for legal causation. The court in Fidler, applying the principles of Hadley, applied a test of whether damages arising would have been in the reasonable contemplation of the parties; this is quite similar to the reasonable foreseeability test in Mustapha.

Contract and Tort Law: Different Quantum Ranges

In Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 [Asselstine], the court reviewed previous awards for mental distress damages in disability insurance, and found they typically ranged between $10,000 – $20,000. The court upheld the trial judge’s award of $35,000, finding this amount to be at the upper end of the range for mental distress damages.

In contrast to Asselstine, tort cases in BC have provided a significantly wider range of damages for psychological injuries. In Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155, the plaintiff in a motor vehicle accident claim suffered debilitating and long-lasting PTSD and Major Depressive Disorder, though he did not sustain any physical injuries. He was awarded $265,000 in his tort claim. In Saadati, the plaintiff in a motor vehicle accident was awarded $100,000 in non-pecuniary damages for his tort claim for psychological injuries alone, despite having significant pre-existing chronic pain and minimal pre-accident income.

In claims for mental distress damages in disability insurance cases, there is the obvious hurdle that the plaintiff will have significant pre-existing conditions – enough to be disabled from working. However, even accounting for this, the courts in BC have awarded quite conservative damages.

In Gascoigne v Desjardins Financial Security Life Assurance Company (Desjardins Insurance), 2019 BCSC 1241, aff’d on other grounds 2020 BCCA 316, the plaintiff initially developed a physical disability. The insurer denied her disability benefit payments. The plaintiff eventually developed depression and anxiety, largely “related to the financial pressures she and her family felt when the plaintiff stopped bringing home an income” (para 36). As a result of the denial of disability benefits, the plaintiff went from being happy and optimistic to withdrawn and distressed about finances. She became less able to cope with the demands of daily life. She separated from her husband and was expecting to divorce. Despite these significant impacts on her life, largely brought about by the insurer’s breach of contract, she was awarded only $30,000 for mental distress.

In Tanious v. The Empire Life Insurance Company, 2016 BCSC 110, aff’d on other grounds 2019 BCCA 329, leave to appeal to SCC refused, the plaintiff was denied disability benefit payments. She had significant disabling conditions, including multiple sclerosis, depression, and anxiety, and she had used illicit methamphetamines to try to cope with her disabling conditions. The insurer’s denial of her disability benefits made her living situation substantially worse. She could not afford good housing or food, and at times could not even have her soiled clothes washed. She had worked hard and paid for her insurance, and she felt she was being looked upon as a liar and a criminal when the insurer rejected her claim. She was awarded a mere $15,000 in mental distress damages.

There may be room to expand the range of mental distress damages in disability insurance claims. The court in Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 stated at paragraph 169:

Had the defendant been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award may have been in an amount somewhat higher than the $70,000 to $80,000 contended for by the plaintiff. In the present case, the award must reflect the fact that Desjardins’ conduct only marginally aggravated Ms. Godwin’s illness. I award damages for mental distress in the amount of $30,000.

This judgment reflects that future awards for mental distress in disability insurance may come closer to those in personal injury torts. Additionally, in Greig v Desjardins Financial Security Life Assurance Company, 2019 BCSC 1758 the court awarded $50,000 in mental distress damages, though the case is currently under appeal. The majority of cases, however, continue to assess damages within the range set out in Asselstine, despite acknowledging that this range is “modest” (C.P. v. RBC Life Insurance Company, 2015 BCCA 30 at para 65).

Conclusion

The gap in psychological damage awards between disability insurance claims and tort claims is worthy of further examination in the courts. Both areas of law aim to provide compensation for the same types of injury, and the courts have recognized that damages in contract and tort should be similar. To prevent arbitrary distinctions, previous case law setting out a “modest” range of damages in disability insurance cases should not be given undue weight. Instead, case law on psychological damages in both disability insurance and in tort should be considered of equal precedential value with respect to future awards of damages for mental distress.

 

 

Client Reviews

Disability Claims for Self-Employed Professionals

Disability Claims for Self-Employed Professionals

disability claim for self-employed
If you are self-employed and have purchased a disability insurance policy, you have assumed that this policy serves as income replacement if you are unable to run your business for a period of time due to injury or illness.

Private disability insurance is commonly more expensive than group insurance, and generally, the type of coverage it provides is usually more valuable as it often provides benefits in the event you are unable to work in your regular occupation. Unfortunately, just because you have purchased an insurance policy, this does not necessarily mean that the insurer will not make it challenging for you to receive benefits after you have submitted a claim. Insurers often heavily scrutinize claims submitted by independent, self-employed individuals – this is because of the sometimes-large benefit amounts provided by some of these policies.

Know the Terms & Conditions of Your Insurance Policy

To protect your rights, it is integral that you understand the limitations and restrictions outlined in your disability insurance policy. The definitions of certain disabilities can change over time, so it is important to keep up to date and understand these changes that may apply to you.

Know Your Rights about Disability Claims

Once you have purchased your insurance policy, be sure you are aware that although you have coverage, this does not mean you should “rest easy.” In reality, what you are really buying are rights that you can enforce against your insurer if they fail to provide the protection that was sold to you.

Know the Strict Time Limitations

 Many people do not realize that there are strict limitations with regards to filing a lawsuit against insurers, and oftentimes they are missed. If you do miss a limitation period, the insurance company is not required to pay your claim, and therefore your right to sue them is null in void.

Here some common red flags you should be aware of:

  • The claim is taking an unusually long time to resolve
  • Irrelevant information is asked of you
  • A claim has been denied

Hire An Experienced Disability Lawyer

In many cases, filing a lawsuit is not necessary. The first step involves a demand letter, outlining any discrepancies, pointing out the facts, and the law – with the demand that an insurer complies with the terms and conditions of the insurance policy. Insurance companies are often fully aware when they are not in full compliance, and take advantage of policyholders because most people do not know the law in-depth, and are privy to any red flags before signing off on their policy.

Contact Tim Louis & Company

Insurance companies may deny legitimate disability claims, as the majority of individuals will give up instead of fighting for the monetary compensation they deserve. If you are self-employed and an insurance company has denied your long-term disability claim, the team at Tim Louis and Company is on your side and will fight in your corner.

For a free, no-obligation appointment, contact us today by calling 604-732-7678 or email timlouis@timlouislaw.com

 

 

Client Reviews

Disability Insurance: Expansion of Special Costs

Disability Insurance: Expansion of Special Costs

disability insurance
 

Introduction

A recent BC Court of Appeal case, Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 [Tanious], gives disability insurance claimants who take their insurers to court greater prospects of obtaining special costs against their insurer, even absent malicious conduct. However, the specific details of the case are very important. This article analyses Tanious with a view to determining the key requirements that will need to be met in future cases to obtain awards of special costs. Leave to appeal Tanious to the Supreme Court of Canada was denied.

Background

Ms. Tanious was diagnosed with multiple sclerosis shortly before beginning a new job. She nonetheless worked at that job for seven years before ceasing work and claiming disability benefits that she was entitled to through her employment. Following her diagnosis, she developed depression and anxiety, and about a year before ceasing work she started using illicit methamphetamines to cope with her deteriorating cognitive capabilities. The insurer, Empire Life, denied that she became disabled during her employment, and further argued that her substance use disentitled her to benefits. At trial, Mr. Justice N. Brown found that she was entitled to disability benefits, and further awarded her $15,000 for aggravated damages for mental distress, loss of peace of mind and of dignity as a person from Empire Life’s refusal to pay benefits.

At the subsequent costs hearing, Brown J. awarded special costs even though the plaintiff conceded that Empire Life did not commit any litigation misconduct. It is this award that was subject to appeal.

The Appeal of Special Costs

The costs scheme in British Columbia is statutory; Rule 14-1 of the Supreme Court Civil Rules sets out the framework for cost awards. It provides that the court may award special costs, but does not set out the circumstances in which they may be awarded. Generally, special costs are only awarded in cases where there has been litigation misconduct. However, there are exceptions, though these are rarely applied. The Tanious case is an example of one such exception.

Overarching Principles

In order to justify a special costs award, the Court of Appeal stated that it is insufficient to simply have a large discrepancy between taxable costs and actual legal costs. There must be some other “unusual feature” in the case, such as “special importance, difficulty or complexity associated with the litigation” (para. 54). The Court cited a handful of examples where special costs had been awarded despite the lack of evidence of misconduct, and explicitly reiterated that in these cases any award of special costs must be made on a principled basis.

Typically, the objectives of costs awards are to provide the winning party with some degree of indemnity for the costs it has incurred during the litigation. However, the Court of Appeal also recognized that costs awards “encourage settlement, deter frivolous actions or defences and sanction unreasonable conduct committed in the course of litigation” (para. 36). Significantly, the Court also indicated that in some instances, “costs may be awarded to enhance access to justice, mitigate severe inequality between litigants and encourage socially desirable conduct” (para. 36).

The Court cited the leading case of Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 465, which provides that in the context of these objectives, “the application of ordinary costs rules usually produces a just result,” but goes on to say that this does not mean “that the personal and financial circumstances of a litigant can never be relevant on a costs application” (para. 60). The Court acknowledged that such circumstances may come in to play in exceptional cases.

The Court went on to discuss other cases where special costs were “justified in the interests of justice” (para. 65). Given the circular nature of this proposal – that special costs awards are justified by justice – it is challenging to elucidate principled reasons for these awards when they are not related to reprehensible conduct. Instead, these cases are fact-specific and must be considered based on their own merits.

The Court included in its analysis two analogous cases out of the Court of Queen’s Bench in Alberta where special costs were awarded: Hennessy v. Horse Racing Alberta, 2007 ABQB 178, where a judicial review was required to defend the appellant’s livelihood and restore his reputation; and Meleshko v. Alberta, 2013 ABQB 468, where the appellant sought judicial review to reinstate long-term disability benefits, and punitive damages were not available. As well, the Court cited FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd., 2016 ABCA 303 for the proposition that special costs could be awarded if success in the litigation would otherwise “amount to a strictly pyrrhic victory” (para. 65).

The final significant case referenced in the appeal was Carter v. Canada (Attorney General), 2015 SCC 5, wherein the test for awarding special costs was refined by the Supreme Court of Canada, stating that “the plaintiffs must show that it would not have been possible to pursue the litigation with private funding” (para. 63). In these instances, it is not just to ask the individual litigants or their counsel to bear the cost of pursuing the claim.

Factors in Tanious in support of special costs

On its face, the trial judge in Tanious made the decision to award special costs on the basis of very few factors, none of which are unusual in a long term disability insurance case: the purpose of the insurance contract is to provide subsistence level income, and when the insurer failed to pay these benefits, the plaintiff had to bring a lawsuit, which cost money. However, the Court of Appeal recognized that when the trial judge’s reasons were read as a whole, it was apparent that he also considered “the nature of the case, including its unique characteristics and related litigation challenges, complexities and costs, together with Ms. Tanious’ personal and financial circumstances and her need for counsel as established by the evidence” (para. 21).

The particular litigation challenges of this case included several factors that added to the effort required by counsel. Ms. Tanious was a difficult client to represent. She could not meet at counsel’s office; counsel had to drive to her. Similarly, she could not review documents to prepare for an examination for discovery as it was too stressful, and she likely would not be able to remember what she had reviewed. Additionally, she attended hospital 33 times over the course of the case, and often called her counsel from hospital to ask for help with various other issues. Ms. Tanious attempted suicide more than once as her disease progressed; if she had died, her claim for benefits would have ended. In preparing for this case, it was difficult for counsel to predict what Ms. Tanious would say at trial.

Though the insurer did not commit misconduct, it could have acted better. The trial judge noted that the insurer made only a cursory response to Ms. Tanious’ initial application for disability benefits, but once in litigation, mounted a vigorous defence. In combination with Ms. Tanious’ poor mental health and declining cognitive abilities, the actions taken by the insurer necessitated that she obtain legal representation in order to pursue the benefits to which she was entitled.

Notably, Ms. Tanious had separate counsel for the costs hearing. This was perhaps because her original counsel had to testify at the hearing via affidavit as to the many special circumstances in Ms. Tanious’ case; s. 5.2-1 of the Code of Professional Conduct precludes counsel from testifying to controversial matters. Though it was not mentioned by the Court, as a practical matter, this ethical rule adds to the challenges of obtaining special costs.

Future Implications

The courts now recognize that in matters of insurance disputes and also in other exceptional situations, many people do not have access to justice unless they are able to retain counsel. Access to justice is recognized as being one of the policy objectives of the courts that thus far is not adequately being met (para. 81). As the consequences of these shortcomings become clearer, it may be possible to seek special costs as a means of ensuring adequate access to justice for members of otherwise underrepresented and vulnerable populations.

It can be difficult to make a financially viable practice taking long term disability cases to trial. While aggravated damages are sometimes awarded, they are typically small awards that are woefully insufficient in comparison to the costs of litigation. Punitive damages require misconduct on the part of the insurer. The risk of a special cost award, absent litigation misconduct, provides the plaintiff with more leverage in negotiations with an insurer, and may allow a plaintiff to recuperate the full benefits to which they are entitled, while also appropriately compensating their counsel.

 

 

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Repetitive Strain Injuries: What You Need to Know

When we think about workplace injuries, we often think about slip-and-fall accidents, injuries resulting from falling objects or the various back and neck strains that come with the territory within many workplaces. However, some work-related accidents are often far less dramatic.

A number of injuries occur over time, through constant repetition of daily tasks, which negatively impact the body causing strain to sensitive joints and muscle groups. These repetitive strain injuries, or RSI, can have a long-lasting effect on our health and daily life.

Injuries Resulting From Repetitive Motion

A Repetitive Strain Injury, whether it is temporary or permanent, will need rest or a change in daily habit that provides time to heal. It is crucial to see a medical professional right away to prevent any further damage to the muscles, ligaments, nerves or tendons through continuous, repetitive motion.

Most Common Repetitive Strain Injuries

typingRepetitive Strain Injuries (RSI) can result from a buildup of damage to muscles, tendons, and nerves from repetitive motion or strain on specific parts of the body. Repetitive Strain Injuries are quite common and may be caused by a variety of common work activities, including:

  • Using a computer mouse or trackpad
  • Excessive typing (data entry)
  • Swiping items at a supermarket checkout/cash register use
  • Grasping and manipulating tools
  • Working in an assembly line environment
  • Training for sports or other athletic activities

Some commonly diagnosed Repetitive Strain Injuries are:

  • Tendonitis (inflammation of the tendon)
  • Pertendonitis (inflammation of the sheath of a tendon)
  • Trigger finger (difficulty bending or straightening any of the fingers which is caused by inflammation and thickening of the tendon)
  • Tenosynovitis (inflammation of the fluid-filled sheath that surrounds a tendon causing joint pain and stiffness)
  • Carpal Tunnel Syndrome (numbness, tingling and pain in the hand or arm resulting from compression of the median nerve which is squeezed as it travels through the wrist
  • Epicondylitis (inflammation of tendons surrounding an epicondyle)
  • Bursitis (inflammation of the bursa sac which is common around the elbow, hips, knees and shoulder)

Repetitive Strain Injuries

What Are the Symptoms?

There are many possible causes of repetitive strain injuries and a wide range of symptoms that result. Tenderness or pain the affected muscle or joints are common, a throbbing or pulsating sensation in the affected area and or tingling in the hands or arms. Any other symptoms will depend on which part of the body is affected.

It’s important that you visit a medical professional for a proper diagnosis as soon as you experience symptoms to prevent any further damage over time.

Repetitive Strain Injury Prevention

The primary ways in which you can reduce the risk is to stop or limit the intensity of the activity. If the activity cannot be stopped, tips for reducing the risk may include:

Taking breaks: Taking regular breaks from any repetitive task may help reduce the strain on your body.

Stand up: Standing up, stretching and frequently moving your limbs may reduce the risk. Stretch your back, arms, fingers and legs regularly.

Vision break: Rest your eye muscles by looking up and staring for a moment at objects in the distance or simply looking around the room. The key is to give your eyes a regular break from screen time.

exerciseOverall health: Eat healthy and get regular exercise to keep your body as resilient as possible, and try to avoid smoking, as this reduces blood flow and oxygen in the body.

Posture: Try to keep yourself from slouching. Ensure your desk, chair and computer screen are aligned as much as you can in an ergonomic setting.

Wrists: Avoid bending or overextending your wrists, and keep the arms, wrists and fingers aligned when typing as much as possible.

Typing: Try to touch type as much as possible and avoid hitting your keys too hard.

Keyboard Shortcuts: Try to use keyboard shortcuts whenever possible, as this can reduce the amount of typing needed.

Mouse or Track-pad: Do not grip too tight or press too hard, and try to slow your speed in order to reduce muscle tension in your hand and wrist.

Temperature: Keep an eye on the temperature of your work area and regulate where necessary.

Phone Use: If you need to use a phone while working, try wearing a headset as this will keep you from needed to grip the phone for long periods or needing to clamp the phone between your head and shoulder.

You can trust Tim Louis & Company to ensure the best possible outcome for your personal injury case

These common RSI injuries can have a lasting impact on one’s health and quality of life. If you or a loved one has experienced a serious injury while on the job, contact Tim Louis and his compassionate and experienced legal team today by calling 604-732-7678 or email timlouis@timlouislaw.com.

Sources:
https://www.enjuris.com/workplace-injury/repetitive-strain-injuries-work.html

https://my.clevelandclinic.org/health/diseases/17424-repetitive-stress-injury

https://www.mayoclinic.org/healthy-lifestyle/fitness/in-depth/overuse-injury/art-20045875

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