Trial judge’s redetermination will consider possibility Health Canada will not authorize substance
In a motor vehicle accident case, the British Columbia Court of Appeal has allowed the Insurance Corporation of British Columbia’s (ICBC) appeal and reduced an award for future care costs, subject to further consideration of the injured party’s psilocybin claim.
In Insurance Corporation of British Columbia v. Roy-Noel, 2026 BCCA 32, a man was driving a light truck in May 2018 when he rear-ended a parked vehicle that the respondent was exiting. The respondent sustained serious injuries that upended her life. These included:
- pain in the left arm, neck, and head
- tinnitus, dizziness, and constant migraines
- central sensitization syndrome, a condition involving higher sensitivity to pain and lower ability to cope with pain
- psychological injuries, including major depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder
- suicidal thoughts
The ICBC, the appellant in this case, defended the respondent’s suit for damages against the other driver. As the parties did not dispute liability, the trial sought to quantify damages.
In May 2024, a trial judge of the Supreme Court of British Columbia awarded the respondent around $1.428 million in damages. The judge relied on expert evidence supporting an award of costs for future care related to psilocybin capsules and psilocybin-assisted therapy.
The judge acknowledged that psilocybin was a prohibited schedule III substance under the Controlled Drugs and Substances Act, 1996. However, he determined that:
- A physician with special permission from Health Canada could prescribe psilocybin
- There was no reason to assume that Health Canada would reject a request for the respondent’s treatment
- Psilocybin would be a reasonably necessary expense, if and as prescribed by a physician according to Health Canada protocols
- Psilocybin saved the respondent’s life by warding off her suicidal thoughts
The ICBC appealed a lump sum portion of the damages award for future care costs, specifically $35,158.55 for psilocybin capsules and therapy to address the respondent’s depression, suicidal ideation, and pain management issues.
The ICBC alleged that the judge misapplied the test for awarding future care costs by failing to properly analyze the claim’s medical justification and reasonableness, including the application of contingencies.
Award reduced
Reducing the future care costs award by $35,158.55, the Court of Appeal for British Columbia remitted the psilocybin claim for a redetermination, possibly by applying a negative contingency to reflect the possibility that Health Canada would not authorize the substance.
Upon a remittal, the trial judge would answer this question: Based on the facts of the case, would a lump sum award for psilocibin capsules and therapy be a reasonably necessary expense without proof of Health Canada permission at the time of trial?
The appeal court acknowledged that the judge did not make obvious or palpable errors in assessing the evidence, including the respondent’s imperfect evidence, relevant to quantifying the award.
The appeal court also accepted that the judge could find psilocybin assisted therapy medically justified and a future care costs award of $8,042 warranted, as long as the respondent could lawfully obtain and take psilocybin with Health Canada’s authorization.
However, the appeal court ruled that the judge erred in fixing an unconditional lump sum for the psilocybin portion of the future care costs award, which fell short of the prerequisite for reasonableness he established.
The appeal court saw an inconsistency between:
- the judge’s assumption in his reasons that his award for psilocybin capsules and therapy would lead to payment only as and when a physician properly and lawfully prescribed psilocybin with Health Canada authorization
- the judge’s order that simply required paying a lump sum, including $35,158.55 for psilocybin capsules and therapy, rather than reflecting the contingency contemplated in the reasons
