If my career plans are waylaid by my injuries, how will a judge assess my future income loss? What if there is uncertainty about whether I would have achieved my planned designation?
In a decision published earlier this week (Flores v. Burrows, 2018 BCSC 334), the plaintiff (Mr. Flores) was injured in a rear-end collision. A major issue in the case was whether his career path was altered by the injuries he suffered (injuries including a labral tear and resulting hip pain, pain in his neck, and back – with a likelihood that he would suffer long term chronic, unremitting, and permanent pain). Mr. Justice Greyell heard evidence of his education to the date of injury: in 2004 he graduated from UBC with a commerce degree and major in accounting, then enrolled in the program that would give him a CMA (chartered managerial accountant) designation. He passed the first exam in 2005, but failed the second. He had three years in which to pass and enroll, but he did not. Instead he applied to a CGA program (chartered general accountant) in March 2013, at which time his children were old enough that his wife could care for them in evenings to facilitate his work and studies. He was accepted into the program the same week he was injured (June 16, 2013).
Despite his injuries, Mr. Flores started the CGA program – which was 20 hours of course studies on top of his full time work week. Within weeks of starting the program, he had fallen behind – finding his workdays lengthened due to his now required stretch breaks to cope with neck and back pain. The lengthening of his workdays shortened the time available for him to complete coursework on evenings and weekends. In October 2013, he decided there was no likelihood of catching up with his colleagues and he withdrew from the program. He did not consult with his doctor about the decision, and delayed breaking the news to his wife because he was embarrassed to disappoint her.
In 2015 the various chartered accountant designations were consolidated into the Chartered Professional Accountant (“CPA”) designation. At trial, Mr. Flores’ counsel argued that his career trajectory was impacted by his injuries – that absent injury he would have completed the CPA designation by December 31, 2015. Mr. Justice Greyell accepted that there was a real and substantial possibility that he would have completed his CPA by that date. However, he also considered the negative contingencies against completion: Mr. Flores’ demanding job, his family’s reliance on his salary, the substantial workload of the CGA program, and the potential that Mr. Flores would have taken an extra year to achieve the designation. He concluded that Mr. Flores’ had suffered income loss to the date of trial, totaling $22,500.00, then turned to the assessment of his loss of future earning capacity.
Both parties provided economic opinions on the earnings for CPAs as compared to Mr. Flores’ likely “residual” career earnings at his present job (“residual” capacity refers to a plaintiff’s ability to earn income with injuries). Defence counsel (ICBC-appointed counsel defending the negligent driver) argued that he would suffer no future loss of earning capacity, and the most that should possibly be awarded was $50,000.00. Mr. Flores’ counsel relied on their economist opinions to say that his career trajectory was altered and the loss to the end of his career was estimated at $621,306.00. Mr. Justice Greyell considered the mathematical calculations, but decided the capital asset loss was best assessed in terms of “years lost income”, awarding the equivalent of three years’ income ($276,000.00). He made the following findings of fact in reaching this conclusion:
[125] In my view, the evidence established quite clearly that Mr. Flores was dedicated to achieving his professional accounting degree. He had set this as an early goal, registering in the Faculty of Commerce at the University of British Columbia with a major in accounting. Upon graduation, he registered for and commenced courses leading to that goal, only to find that he could not compete the course because classes were held on Sundays. Mr. Flores pursued his interest in accounting through his employment at Pace where he quickly moved to a senior accounting position, earning a relatively good salary. When he and his wife decided to renovate their house in 2012, they converted a shed in their backyard into an office, in anticipation that Mr. Flores would use it as an office from which he could study when he resumed his CGA designation studies. Mr. Flores registered for and began the CGA designation course in 2013, just prior to the Accident. He advised Pace that he had done so. Pace revised its website in order that its customers would have an accurate picture of its employees.
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[136] I accept that the plaintiff has suffered an impairment to a capital asset, as he meets the factors set out in Brown: he has been rendered less capable overall from earning income from all types of employment; he is less marketable or attractive as an employee to potential employers; he has lost the ability to take advantage of all job opportunities which might otherwise have been open to him but for the Accident; and generally, he is less valuable to himself as a person capable of earning income in a competitive labour market.
[137] Mr. Flores was, at the date of trial, 35 years old. He has some 30 to 35 years of future employment available to him. While it remains a possibility, it is unlikely that he will complete his CPA certification given his ongoing pain, fatigue, stamina and inability to focus. Dr. Waseem considers his prognosis to be poor. Some of the negative contingencies which I must take into account include the possibility that Mr. Flores may not have finished the CPA course absent the Accident, for a number of reasons: perhaps because he found it too hard or because the hours required competed with his job at Pace, perhaps for family or other personal reasons, or perhaps because of the potential difficulty finding employment in his chosen field as a result of economic reasons or other factors. In addition, it is possible that Mr. Flores’ condition may improve to the extent that he can take the course.
[138] Any award made for loss of future earning capacity must be fair to the defendant. In Miller v. Lawlor, 2012 BCSC 387, at paras 134-140, Justice MacKenzie discussed the authorities wherein damages were assessed in terms of a number of years of lost income. In my view, that is a correct approach to follow in the present circumstances.
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