McGonigle v Parada, 2018 BCSC 1017
Lawyers Janet De Vita and Britni Troy of Watson Goepel’s Personal Injury Group attained a judgement for a client this week, which also has relevance to the Firm’s Indigenous Law Group. In McGonigle v Parada, 2018 BCSC 1017, the First Nations plaintiff sued for damages arising out of a motor vehicle accident. As part of their submissions to the court, Ms. Troy and Ms. De Vita advocated for recognition of the plaintiff’s damaged connection to her indigenous culture, and sought compensation to address the injury. The Court’s decision recognized the important role of cultural practices for Indigenous peoples, and adds to the limited jurisprudence in this area.
The plaintiff was 38 years old at the time of the accident, and suffered injuries to her neck, shoulders, back and arms, as well as a concussion and severe headaches. She was not working outside the home at the time of the accident, however she was passionate about carving. She had begun carving at a young age and moved on to larger projects in her twenties, often working nine hours per day or more on a given project. She often salvaged and sourced wood herself by searching forested areas and carrying out the logs. She also made smaller crafts, such as bracelets and dream catchers.
Although she had minimal success in selling her larger pieces, they were recognized for their artistic merit. One of her totems, displayed at an exhibition in Chilliwack, was awarded first place in its category. Evidence at trial demonstrated that she received an offer for $40,000 on her largest piece, an eight-foot carved male figure, and also sold one of her eight foot totems for $2,000. Further, she sold many of her smaller crafts over the years. More importantly, crafting and carving represented a way for her to connect with and maintain a traditional Indigenous lifestyle.
Injuries from the accident affected the plaintiff’s ability to work, which often required her to be hunched over with her head down, a position that now caused pain in her neck and shoulders. It therefore took significantly longer for her to produce an item than it did before the accident, and she could no longer use the heavier tools or perform the demanding physical work involved in carving larger pieces.
Her injuries also curtailed her ability to participate in her typical recreational activities such as walking and hiking, or participating in the dancing and games associated with traditional Indigenous social life.
In its decision the Court acknowledged that the plaintiff had not worked outside the home since the birth of her children, and although she was passionate about pursuing her Aboriginal heritage through her carvings and crafts, she was unable to demonstrate a pattern of earnings. However the Court accepted that she may well have earned some income each year from her crafts or carvings, or from other limited work, and made an award for past income loss. Using the same reasoning and looking forward, the Court awarded a sum for future loss of income.
In preparing for trial, Ms. De Vita and Ms. Troy faced a scarcity of case law regarding loss of cultural connection in the indigenous context. This case adds to the limited jurisprudence in this area, considering the importance of individual Indigenous cultural practices, and addresses the challenge of quantifying loss of capacity.
Read the full case here.
