Court rejects argument that it consider "cultural bias" in assessment of damages for aboriginal plaintiff

In reasons for judgment released yesterday, the court in Jacobs v. Basil, 2017 BCSC 1339, rejected plaintiff's counsel's argument that the court should take into account "cultural bias" in assessing the damages sustained by an aboriginal plaintiff in a motor vehicle case.  In considering the novel argument Mr. Justice Abrioux wrote:

[160]     The plaintiff made an extensive written submission that the court should consider “cultural bias” factors in its assessment of the damages. In particular it was submitted that:

cultural bias “needs to be considered in not only assessing this evidence, but also awarding compensation to the plaintiff for his injuries and the consequences of these Accidents”.

[161]     This portion of the plaintiff’s written submission then considers in some detail authorities that have reviewed this issue in a criminal law context such as R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, and R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, amongst others.

[162]     In oral submissions, Mr. Jacobs’ counsel retreated significantly from the breadth of this submission. His argument appeared to finally rest with the proposition that if the plaintiff’s cultural background could be causally related to a specific head of damage then the court should take that into account in assessing those particular damages.

[163]     At no point did I understand the defendants’ position to be what was implied in the plaintiff’s submission, that because he was of indigenous heritage the Court should conclude that as part of his original position he was susceptible to a life of alcoholism or other forms of abuse which would likely affect his income earning capacity or things of the like.

[164]     Rather, the defendants properly conceded, in my view, that if the plaintiff’s cultural background did impact upon a specific head of damages, as it related to him, then the Court could take that into account.

[165]     As I will describe below, the plaintiff’s indigenous background is specifically addressed by Ms. Chisolm in her cost of future care report in relation to one of the items she recommends for Mr. Jacobs being a case worker.

[166]     Apart from that I do not consider the “cultural bias” argument to be appropriate in the assessment of damages in this case.

The full judgment can be found here: