Banked Sick Time Deemed A Recoverable Claim

In Chingcuangco v. Herback, the Plaintiff was injured in a motor vehicle collision as a passenger when the vehicle she was traveling in collided with a vehicle that had turned left in front of their path. Consequently, she brought an ICBC claim for damages due to the injuries sustained therein. Liability was disputed by ICBC’S lawyer, however the Court would rule that the Defendant was negligent. The Plaintiff was required to use some of her sick leave hours to compensate her for some of her wage loss. The Plaintiff sought reimbursement for banked sick time hours, however ICBC’S lawyer argued that she should not be entitled to this. The Court, in keeping in line with previous cases, ruled that such banked sick time was in fact recoverable.


[209]     During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits.  She seeks damages to reflect the depletion of those benefits.


[210]     The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.


[211]     The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.


[212]     This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48.  In that case, Madam Justice Ballance provided a thorough and helpful analysis:



[213]     I agree with that analysis and I adopt it in its entirety.  Here, the plaintiff exhausted her accumulated sick leave.  She also used up several of her vacation days.  She has had illnesses unrelated to the accident that have resulted in her being unable to work.  She is likely to have them in the future.  Her plan is to stay and make a career at CRA. 


[214]     I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09.  There will be no deduction for income tax.

Leave a Reply

Your email address will not be published. Required fields are marked *