Canadian Underwriter

End of the line for auto injury lawsuit over restaurant tip income

July 13, 2018   by Greg Meckbach

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A former restaurant server who sought a $3.8-million award after being hit by a car has lost her bid to have her lawsuit heard by the Supreme Court of Canada.

The Supreme Court of Canada announced Thursday it has dismissed Kimberly Isbister’s application for leave to appeal Isbister v. Delong, released in 2017 by the Court of Appeal of British Columbia.

Isbister was riding an electric scooter June 29, 2010 in Victoria when she was struck by a vehicle driven by Paige Delong. Isbister sued Delong and was awarded $835,000 in 2014 by Supreme Court of B.C. trial judge Gregory Bowden.

The bone of contention was neither the cause of the accident nor who was at fault, but rather how much Delong should have to pay Isbister. One issue was how much money Isbister made in tips before the accident, which left her unable to continue working as a restaurant server.

In appealing the trial judge’s award, Isbister argued she ought to have been awarded more money, both for loss of past income and loss of future income. Isbister asked for $1.4 million in loss of future income but was awarded $300,000.

During the original trial in 2014, Isbister argued she could not sit for long periods of time. But based on video surveillance evidence presented to the court, Justice Bowden wrote that he would “expect” that Isbister could  “find a sedentary job that might include an office job, telephone communications, computer work, restaurant or hotel work in the management area.”

Justice Bowden awarded Isbister $134,074 for loss of past income, much lower than the $228,500 Isbister sought on that head of damage.

“Of the hundreds of thousands of dollars she says that she received in tips up to the time of the accident she only reported about $6,000 for tax purposes,” Justice Bowden wrote. Isbister reported having earned about $52,000 in tips in 2007, but did not declare any tips in her income reported to Canada Revenue Agency.

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Justice Bowden’s ruling was upheld on appeal in a ruling released Oct. 5, 2017. “[Justice Bowden] assigned weight to facts arising from records that may not have been completely accurate and to testimony given by Ms. Isbister and others that was not always consistent with those records,” Justice Daphne Smith of the Court of Appeal of B.C. wrote last year.

“In the end, the judge was satisfied Ms. Isbister had met the burden of proof with respect to only a portion of the loss she claimed,” Justice Smith added. “She has failed to demonstrate any palpable and overriding error in that finding.”

Concurring were Justices David Frankel and Franklin Tysoe.

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