I had a career that I loved and was successful in. My crash injuries were such that I had to give all of that up and pursue something new. Will the courts compensate me for the cost of my retraining and the potential lost earnings? How will that be calculated?
In the recent case of Owen V. Peljhan (2017 BCSC 423) the plaintiff, 37 years old at the time of the November, 2011, rear end crash, had recently received her Personal Financial Planner designation and was working and flourishing in her chosen career. Ms. Owen worked hard to continue in this field despite her crash injuries. She had switched employers a few times and settled into a position with Manulife where she was able to work flexible hours from home. In 2014, her employment was terminated due to restructuring. She received a full severance package which included access to a private career transition service to assist her with locating and securing new employment. Ms. Owen launched a complaint claiming the termination was discriminatory; she had a stellar work record and should have been transitioned into one of the newly created positions. She then embarked on a job search of her own but was unable to find employment that suited her. She eventually decided to return to school to finish her degree and continue on to a Master’s degree in psychology.
At trial Ms. Owen relied on the economist report of Mr. Wickson to estimate the losses she suffered as a result of the career change. His final calculation of between $600,000 and $900,000 included both the loss of projected income and the cost of education.
While Justice Gaul agreed that Ms. Owen’s ability to earn an income was adversely affected by her chronic injuries, he was not persuaded that a career change was necessary or that the earnings approach was suited to the situation.
[87] I have difficulty accepting that the “earnings approach” to calculating Ms. Owen’s future loss is the appropriate avenue in this case. In my view there is an insufficient evidentiary foundation to allow for a math-oriented quantification of her future loss. In other words, I am not satisfied that using this approach I can reasonably estimate what her likely future earnings will be. To a noticeable degree the calculations of Mr. Wickson that Ms. Owen relies on are premised upon inaccurate and/or incomplete information. He has assumed Ms. Owen is registered in a 3-year university program when in fact she will be receiving a 4-year degree. He has not factored in Ms. Owen’s desire and intention to obtain a post-graduate degree. He relies upon an overly broad category of employment opportunities and he has projected, without any evidentiary foundation, that Ms. Owen will retire at 70 years of age. For all of these reasons I find the “earnings approach” is not the appropriate avenue for quantifying Ms. Owen’s future losses.
[88] In my opinion, Ms. Owen could have remained employed in the investment and financial planning industry. That is what she enjoyed doing; that is what she was good at; and that is what she wanted to do. The consequences of the motor vehicle accident made her continued employment in this field more difficult, but I am not convinced she was no longer capable of working in this field. Moreover, I reject the suggestion that Ms. Owen would have been restricted to working a maximum of four hours a day had she remained in the financial industry. I am satisfied that Ms. Owen was able to work more than Mr. Bruce suggested, as long as she was able to properly manage her symptoms. As a matter of fact, in the four years following the accident, Ms. Owen showed herself quite able and willing to do so. Additionally, most if not all of her former employers in the financial industry had policies for accommodating employees with physical limitations and although Ms. Owen did not enquire about any of these policies, I find it is quite likely that she could have found employment that accommodated her needs and allowed her to remain in her originally chosen career field. In my opinion, the statements contained within her Human Rights complaint accurately reflect her true abilities and desire. Those abilities were diminished because of the accident, but her desire and belief that she could continue working in the financial planning field remained strong.
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[91] In my opinion, Ms. Owen was somewhat hasty when she decided to abandon her career in the financial field and embark upon a course of retraining to become a counsellor. In other words I am not satisfied that she could not have continued to be gainfully employed in the financial planning industry, and more specifically I do not accept that with her professional skills and aptitudes, her vibrant personality and her drive to succeed, she would not have located and secured new employment following her termination from Manulife. Given this finding, I am not persuaded that the cost associated with her returning to school to obtain her psychology degree and to retrain as a counsellor are recoverable from the defendant.
[92] I accept that even if Ms. Owen works for an employer who has pro-active policies that accommodate employees with physical limitations, her chronic injuries likely still render her less capable of earning an income. Moreover, I accept that she is less marketable to potential employers and is less likely to be able to take advantage of all job opportunities that might have been available to her because of her accident related injuries.
[93] The challenging question that remains is how to quantify Ms. Owen’s loss. Just prior to the accident, she had obtained her Personal Financial Planner designation and was hoping to obtain her Certified Financial Planner designation in the future. In her pre-accident years when she was developing her skills in the banking and financial planning fields, Ms. Owen earned between $43,000 and $71,000. This is roughly similar to what she can expect to earn after she completes all of her university studies and she begins to work as a registered psychologist or counsellor.
[94] According to Ms. Owen’s evidence, she intended to work for another 17 years or so, before retiring. Keeping in mind that her income as a financial planner was heavily reliant on commission sales, I am satisfied that her physical injuries would have limited her ability during those years to earn the income that she would have but for those injuries. It is reasonably likely, in my view, that had Ms. Owen continued to work as a financial planner, she would have over the course of those 17 years lost an average of between $5,000 and $10,000 per year on account of either time off from work or simply reduced productivity because of her injuries. Although I am not able to say she will suffer an identical loss should she become a professional counsellor, I do accept that she will suffer a loss that is comparable.
[95] In my opinion, keeping in mind the actuarial factors and principles explained in Mr. Wickson’s evidence, an award of $130,000 is fair compensation for Ms. Owen’s accident-related loss of future income earning capacity.
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