In certain ICBC claims, the Plaintiff will be seeking past loss of income, including where the Plaintiff has not declared his or her full income, such as in the example of tips. When this occurs, it is still possible to claim for these amounts, even if they do not appear on your income tax return. The problem, however, is that you will need to testify in open court. This could later put you at risk with respect to Revenue Canada finding out.
In Wong v. Hemmings, the Plaintiff’s occupation was as a server. She was involved in two motor vehicle accidents, and brought an ICBC claim for damages for her injuries. The Plaintiff provided evidence as to actual earnings, however such amounts differed from what she actually declared on her income tax returns. The Plaintiff was quite candid with the Court, in admitting that she did not declare her full amounts, but acknowledging that she knew that she was under an obligation to do so. ICBC’S lawyer argued that the Plaintiff should not be entitled to any amount for loss of income with respect to tips, however the Court would rule otherwise.
[125] The defendants assert that the plaintiff should not be granted a past wage loss award that includes undeclared tips. They assert this position to preserve an ability to argue the issue in another forum as counsel for the defendants otherwise concedes that this Court is bound by Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185, which holds that failure to declare tip income is no bar to the recovery of undeclared tips as past wage loss.
[126] The defendants also submit that the plaintiff has failed to establish what she would have earned in gratuities on her cash sales. As noted above, the Fairmont’s records reflect only the total amount of the plaintiff’s cash sales as a server. Any tip received by a server on a cash sale would be known only to them. The defendants point out that in 2006, for example, and assuming an average 12% tip on cash sales, the tips received by the plaintiff on cash sales represented 8.6% of her total tip earnings. Using this as a baseline, the defendants argue that the plaintiff’s past tip loss should be discounted by 8.6% to reflect the amount of cash tips allegedly lost but not proven.
[127] The defendants are, at least in theory, on firmer ground on this issue. Iannone stands for the proposition that the plaintiff has the burden of leading evidence of past wage loss and that it will be a difficult burden to discharge where there is no confirmatory evidence, such as income tax returns, to establish that the amount claimed would, in fact, have been earned. In this case, however, I am satisfied that the plaintiff has met her burden of proof on this issue. The records of the Fairmont Hotel clearly establish the total of the plaintiff’s cash sales as a server. The plaintiff testified that she would receive, on average, a 12% tip on her cash sales. I accept her evidence on this point.
[128] In the result, I award the plaintiff $20,250.00 for past income loss.
