Having a criminal record will not bar you from making a personal injury claim. However, a criminal record can affect your claim in multiple ways. Firstly, a judge must take into account the effect of your criminal record on your future job prospects when determining awards for future wage losses. A recent Supreme Court of British Columbia case involving a plaintiff with a long history of criminal activity, including drug and gun sales, dealt with exactly this issues. When deciding the plaintiff’s future wage losses, the judge stated:
206] Regrettably, past behaviours are predictors of future behaviours and I must take into account that Mr. Friesen’s future income may also be affected by future criminal behaviour and resulting imprisonment. He has a criminal history dating from 1995 with multiple terms of imprisonment and a proclivity to become involved in some level of criminal behaviour.
[207] The plaintiff must establish a real and substantial possibility that his future income will be adversely affected by the injuries he sustained in the accidents. These losses must be based on evidence that there is a “real and substantial possibility” of a loss to the plaintiff: see Riley v. Lynn, 2003 BCCA 49 at para. 101.
[208] In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal provided further guidance when assessing future losses using the capital asset approach:
[56] If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income. Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 1996 CanLII 2906 (BC CA), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 1995 CanLII 1971 (BC CA), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
[209] It is unclear what level of employment is available to the plaintiff but I accept that Mr. Delaney and Mr. Stelkia are prepared to offer him work despite his criminal past. By contrast, Mr. Rayner testified that although he hires prospective employees with criminal records, some jobs cannot be worked on by people with criminal records. Generally, he does not hire persons with multiple criminal offences. Criminal record, not injuries, diminish Mr. Friesen’s prospects.
[210] Taking into account various negative features of the plaintiff’s active pre-accident physical history, criminal history, the residual effects of his neck, low back, neck and shoulder injuries, I conclude that there is a very modest but real and substantial possibility that, upon release from prison, the plaintiff’s income will temporarily be limited at some time due to the effects of the accident related injuries. Taking into account the prospects for shoulder surgery, all negative and positive contingencies faced by the plaintiff and other features of the post-accident symptoms and limitations caused by the accidents, I award him $25,000 for damages for future income impairment.
https://www.courts.gov.bc.ca/jdb-txt/sc/18/18/2018BCSC1866cor1.htm
When assessing the plaintiff’s future wage losses, the judge was bound by the facts of the case. The judge had to consider all reasonable possibilities of future employment for the plaintiff, which meant a consideration of limitations in employment prospects caused by a criminal record.
Furthermore, a history of fraudulent activity can affect your credibility, as a whole. In another Supreme Court of British Columbia case a judge considered a plaintiff’s history of fraud in their findings on the plaintiff’s credibility:
[255] There is a paucity of reliable and credible evidence to persuade the Court that the plaintiff has suffered any economic loss. In the past, she has demonstrated a propensity to be untruthful to improve her economic circumstances when convenient. She has persisted in these habits for many years and continues notwithstanding a recent conviction for fraud. She has lied to the CRA, to CPP, to her doctors and to the Court. I have no confidence that most of what she has said were reliable or true. I am compelled to disregard any of her evidence concerning her income loss claim.
https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc385/2016bcsc385.pdf
In this case the judge denied the plaintiff’s claim for future wage losses entirely. The claim was based solely on the credibility of the plaintiff, who did not provide any objective evidence to corroborate their claim.
