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Intentions and perceived inabilities insufficient to prove loss of capacity

If one is injured and believes his injuries prevent him from becoming a police officer, will the court be convinced of the loss? What if he’s taken just one step in this regard, and lacks the pre-requisites for the role?

In today’s case of Dhaliwal v. Randhawa 2016 BCSC 2005, the plaintiff was a 19-year-old labourer at Sun Rich Foods when he was injured in a 2011 collision. He suffered injuries to neck, back, and shoulder, and those injuries had become chronic in nature by the time of the trial. Immediately after the collision, he was off work for a number of weeks, and quit his job after attempting a return to work. The evidence was that he was unhappy with his job and didn’t like working in the same place as his father.  Over the following years, he continued working in labour roles, and his earnings steadily increased. He was awarded $5,500.00 for past income loss attributable to his injuries.

He also sought an award for loss of future earning capacity, saying that he could not pursue his goal of becoming a police officer. Mr. Justice Butler determined that the plaintiff failed to prove a real and substantial possibility that his injuries would cause him a future loss, explaining as follows:

[75]         Mr. Dhaliwal says that he has lost a capital asset. He points to the ongoing symptoms that he suffers and says they render him less capable of qualifying for employment that would otherwise be available to him. Further, he says the injury cost him the chance of becoming a police officer or firefighter.

[76]         The difficulty with Mr. Dhaliwal’s position is that I have not accepted the underlying assumption. I concluded that his ongoing symptoms are not serious. He suffers from discomfort that he manages effectively. He has held a number of jobs which required repetitive and occasional heavy lifting and has been able to do that work successfully. I also concluded that his situation will not deteriorate. These findings are almost a complete answer to the claim for loss of capacity. The one outstanding question is whether there are other activities which he cannot do that have reduced his employment options. Of course, Mr. Dhaliwal says this is the case with regard to possible employment as a police officer or firefighter.

 [77]         There are two main answers to the plaintiff’s contention: i) there is no evidence that he is unable to perform the physical tasks required for those occupations; and ii) the reason that Mr. Dhaliwal has not pursued those occupations has nothing to do with his injuries. I will address these in turn.

[83]         The case for a loss of capacity was built around Mr. Dhaliwal’s desire to be a police officer. He sent an email with an attached letter to the Delta police on June 18, 2011 expressing his interest in becoming a police officer. The accident occurred only two weeks later and the plaintiff says he believed that his injuries would prevent him from carrying out the duties of a police officer. Surprisingly, he never made inquiries into what the requirements were to become a police officer. However, he clearly did not meet them. He did not have sufficient post-secondary education and had never done any community volunteer work. The Delta police were not able to open Mr. Dhaliwal’s cover letter and sent an email to him in response. He either did not receive the email or did not respond to it. In any event, he never followed up on the expression of interest.

 [84]         The suggestion that he lost the chance of being a police officer as a result of the accident fails not only because of the absence of medical evidence. Mr. Dhaliwal is not qualified to be considered as a police officer as a result of his education and experience. Based on the evidence of Constable Sernoski, it is clear that Mr. Dhaliwal’s résumé and cover letter would not have attracted the interest of any police recruitment officer.

 [85]         I also note that the plaintiff has recently run into difficulties at work which have nothing to do with his injuries but could negatively impact his future employment. He was dismissed from his position with Canada Cartage because of a series of problems with his performance. These included processing errors and unexcused absences from work. He had previously been suspended for loading errors, including one instance where he was responsible for a trailer which was loaded incorrectly and fell off its support. It caused damage to the trailer and to the roof of the building and put the safety of employees at risk. To make matters worse, he posted photos of the damaged trailer and building on Facebook.

 [86]         Mr. Dhaliwal’s employment record with Canada Cartage would negatively impact the possibility of future employment opportunities with any police force. He has also made Facebook postings critical of the police. This is unwise for someone who professes an interest in police work.

 [87]         When I consider Mr. Dhaliwal’s evidence and his education and employment history, I must conclude that Mr. Dhaliwal’s attitude and approach to his work is the real reason that he could not, at present, pursue employment as a police officer or a firefighter. I must say that I found Mr. Dhaliwal to be an affable and engaging witness. It is also evident that he has a lot of abilities and interests. However, he needs to approach one of his interests with focus and determination if he is to succeed in finding more fulfilling work.

The judge concluded by pointing out that he recognized the discomfort that the plaintiff would continue to endure at work, noting that he factored that into his non-pecuniary losses award.

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