*written by Vic Maan, associate at Holness and Small Law Group
If you are unable to work because of injuries suffered in a motor vehicle accident, there are various options available to pursue to replace lost income. This includes applying to receive sick pay or Employment Insurance (EI) for sickness benefits. If there is disability coverage through your employer, you may be eligible to receive short term disability (STD) or long term disability (LTD) benefits. As a last resort where either disability benefits are not available or if the disability benefits have been exhausted, then ICBC provides total temporary disability benefits (TTD benefits).
What happens, however, when an injured claimant instead uses vacation days when he/she is unable to work due to injuries?
The question of whether you can recover the vacation days you used due to your motor vehicle accident injuries is not straight forward. In some circumstances, ICBC has successfully argued that vacation days are not recoverable as part of the ICBC claim. Whether it is reimbursed by ICBC will depend on the circumstances.
The recent decision of Bergeron v Malloy, 2020 BCSC 963 answers this question.
In this case, the 49 year-old female injured claimant suffered from chronic pain and headaches as a result of 2 motor vehicle accidents. Due to her injuries, she initially was off work as a restaurant server following which she returned to work on a graduated basis. After she returned to work, she would experience flare ups of her pain causing her to miss further days from work at various periods of time. After she used up all of her sick bank, she would then use her vacation days when she was unable to work due to her injuries. ICBC refused to compensate her for the vacation days she used for her injuries. The trial judge disagreed with ICBC and awarded her compensation for her vacation days as they were considered a loss to the injured claimant. The reasoning behind this was that if she were not injured, she would have used the vacation days for her own personal use:
 The treatment of the use of sick days and vacation days in this court has varied. In McCartney, Mr. Justice Bowden declined to compensate for vacation days lost due to accident injuries on the basis that since the plaintiff was paid, there is no loss. In Chingcuangco v. Herback, 2013 BCSC 268 at para. 213, Mr. Justice Weatherill ordered compensation for depleted vacation days, on the basis that use of them for recovering for illness instead of for vacation is a loss. In doing so, he adopted the view of a loss described by Madam Justice Ballance in Bjarnason v. Parks, 2009 BCSC 48 at paras. 63-66.
 The total that Ms. Bergeron has proven she lost due to her accident injuries is $2,650-$2,950 gross pay. In addition, Ms. Bergeron would have earned tips working those hours. Based on the evidence that she reported tips totalling 12%, 15%, 21.6% and 24.8% of her reported income on her 2015, 2016, 2017 and 2018 income tax returns respectively, I assess an additional 20% for tips, for a total of $3,400 in pre-trial loss of earning capacity before statutory deductions.
In light of this case, in order to obtain compensation from ICBC for using vacation days for motor vehicle accident injuries, it must be proven that the vacation days would otherwise have been used for personal use and not for illness.
For more information, please see our previous blog article on when ICBC must pay for lost wages and lost vacation pay.