In Gormick v. Amenta, the Plaintiff had been injured in a motor vehicle accident, and was awarded damages for pain and suffering, out of pocket expenses, and loss of income, including loss of banked sick time. Subsequent Reasons to the original trial judgment addressed the issue of whether or not the banked sick time was recoverable as a gross amount or net amount. At trial, the judge had awarded close to $18,000 in banked sick time as a gross amount. This was confirmed in the trial judge’s Reasons, where the law in this area was discussed.
[8] The recent decision of DeGuzman v. Ge, 2013 BCSC 1450, follows Bjarnason and elaborates on the rationale for awarding the gross and not the net amount of damages in respect of loss sick bank entitlement. I extract the pertinent portion of the reasons of Smart J. at paras. 40-43:
Mr. Calder submits that the appropriate award is that set out in the Notice to Admit – $45,598.26. This includes the subrogated interest of the plaintiff‘s employer for repayment of her accumulated sick bank time in the amount of $33,354.73. Mr. Calder agrees the plaintiff is only entitled to net past wage loss but argues that the award to replenish the sick bank is the gross amount of past wage loss, not the net amount. He refers me to Chingcuangco v. Herback, 2013 BCSC 268, Chalmers v. Russell, 2010 BCSC 1662, and Bjarnason v. Parks, 2009 BCSC 48.
Mr. Gibb notes that the plaintiff is only entitled under the provisions of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.231, to recover net past wage loss and that income tax contributions and Employment Insurance premiums are to be deducted from the gross earnings to determine net past wage loss. While he does not disagree with Mr. Calder’s arithmetic, he does disagree that repayment of the sick bank time should be the gross wage loss. He argues that it should be consistent with past wage loss awards and should be the net amount – $39,247.42. He says to make the award Mr. Calder suggests would over-compensate the plaintiff.
I respectfully disagree with Mr. Gibb. In my view, the purpose of an award for past wage loss is to compensate the plaintiff for what she actually lost as a result of the MVA. To only compensate her for the net amount of her sick bank time would result in deductions being taken from her twice – now and later when she uses them in the future. This is because when she does use her replenished sick bank time, she will have income tax and other deductions taken from her by the employer and will only receive the net amount.
The plaintiff is entitled to the past wage loss in the amount of $45,598.26.
