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Appellate Court varies trial award for early retirement

Will the judge accept my decision to retire early because of injuries? What if it was a reasonable decision, but not strictly a necessary one?

In the September 2018 decision of Riley v. Ritsco (2018 BCCA 366), the Court considered whether the trial judge erred in dismissing the plaintiff’s claim that his injuries caused him to retire early. He had retired before trial at the age of 66, and had otherwise planned to work to age 70 or 71.  The Appellate Court concluded that the trial judge erred in his application of the law. They awarded just over $50K in lost wages to the date of trial, and $100K of wage loss after the date of trial. The award was based on early retirement between the ages of 69 and 70 – accounting for the strong possibility that as he got older he would have wanted to retire sooner than anticipated in any event. In reaching this decision, they provided the following reasons:

[81]        The only real question, then, was whether Mr. Riley’s rationale for retiring when he did stands up to scrutiny. In Barr, the trial judge described the test to be applied as follows:

[46]      [T]o establish a right to recover damages, the Court must find that the injuries and their effects made it necessary for the plaintiff to retire because they prevented her from safely and competently doing her job. In other words, but for the accident, she would not have needed to retire.

[Emphasis added.]

[82]        The judge in this case adopted that test:

[75]      As in the case, Barr v. Accurate Transmission and Driveline, 2016 BCSC 2432 (CanLII), in order to recover damages in this category, the court must find that the injuries sustained by the plaintiff and in [sic] the effect upon him made it necessary for him to retire because they prevented him from safely and competently doing his job. The onus of proving that on a balance of probabilities is on the plaintiff. (See para. 46)

[83]        In my view, the test, as articulated, is too stringent. Plaintiffs are not required to show that decisions they make are dictated by necessity. Rather, the question is always whether a plaintiff has acted reasonably in selecting and following a course of treatment and rehabilitation, and in making lifestyle accommodations that are consonant with the injuries suffered. A plaintiff must also take reasonable steps to mitigate damages. Thus, Mr. Riley did not have to prove that he retired out of necessity. He only had to show that his decision to retire was a reasonable one.

It is noteworthy that the Court of Appeal applied s. 98 of the Insurance (Vehicle) Act to reduce the award for past wage loss to reflect the income taxes that would have been payable on the earnings.

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