If you’re pursuing your education and Chartered Accountant designation, but collision injuries derail that plan and result in you settling for a different designation, should you be compensated for the related reduction in earning capacity? What if you are female and have a baby in the midst of it all? Does being a mother mean that your workforce attachment is reduced either way?
In a decision released yesterday by the British Columbia Supreme Court (Lu v. Huang 2016 BCSC 1146), the plaintiff (Ms. Lu) was in her 40s and had immigrated to Vancouver in 2003. She had obtained work as an accounting clerk the following year, which led her to pursue a career in accounting – with the goal of becoming a chief financial officer (“CFO”) in a company at some point. Her plan required her to obtain an accounting designation: either a CGA (certified general accountant) or CA (chartered accountant). Her first step was to obtain a diploma in a business administration (accounting) program. She obtained her diploma in 2007. She gave birth to a son in April 2006 – and on the previous day had written her last exam and achieved a mark of 95%. Her counsel pointed to this as an indicator of her determination and career goals.
After achieving her diploma in 2007, Ms. Lu worked as an accounting clerk. In 2008 she continued her studies on a part-time basis to obtain a Bachelor’s degree in Business Administration in 2011. By this point, the three major accounting bodies had unified and a single designation of “Chartered Professional Accountant” (CPA). Existing CAs and CGAs have this noted with their CPA designation: i.e. “CPA, CGA”. At this time it was open to Ms. Lu to enroll in a CGA program while completing her degree, which would have saved her a year or two in achieving an accounting designation. The evidence before the court was that the CA designation is more prestigious than the CGA designation, and that most CFOs are CAs and look to CAs for succession planning. Accordingly, she chose to complete her degree so that she would have the option of the CA program.
She was seriously injured in a collision on April 27, 2011. She was off work for two weeks due to her symptoms, then returned to work part-time: on Mondays, Wednesdays, and Fridays. In mid-2011 Ms. Lu faced the decision of choosing between the CA program (12 month program) and the CGA program (coursework and 36 months of accounting articles). She knew that CA articles required long hours. In May 2011, she applied to enroll in the CGA program, which was her back-up plan. In June 2011, she tried to return to full-time work, but gave up after three days. She then made the decision to forego the CA articling program, recognizing that her condition would not permit her to work the long hours expected. The task before the judge was to assess the future loss of earning capacity suffered by Ms. Lu. In referring to the submissions of counsel for both sides, and economist opinions on both sides, he awarded $250,000.00, making the following determinations:
[187] I begin by addressing the Brown v. Golaiy factors. I find as follows:
- a) Ms. Lu has been rendered less capable overall from earning income from all types of employment for which she has trained and is suited. In particular: (1) she is less capable of taking on work that involves long hours on a consistent or regular basis; (2) stress and workload tend to aggravate her symptoms; and (3) she is less productive than she otherwise would have been but for the accident;
- b) for the same reasons, she is less marketable to potential employers;
- c) she has lost the ability to take advantage of all employment opportunities which might otherwise have been open to her, and she in fact lost the opportunity to pursue a career as a CA, a designation that on the evidence led at this trial leads me to the conclusion that it carries with it more upside potential; and
- d) she is less valuable to herself as a person capable of earning income in a competitive labour market.
[188] I conclude that the defendants’ submission − that the plaintiff has shown she will suffer no future loss because her post-accident earnings have increased − is too simplistic. I am satisfied that there is a fairly good prospect the plaintiff’s earnings would have increased more than they have done, had the accident not occurred.
[189] This leaves the assessment of the amount. The Court of Appeal in Morgan v. Galbraith made it clear that the assessment is not at large and there must still be some factual or evidentiary basis for the award.
[190] The economists’ calculations provide some guidance. Mr. Benning calculated a loss to age 65 of about $396,000 using the earnings of a British Columbia female accountant earning in the 90th percentile (which is the present level of Ms. Lu’s earnings), and assuming an earnings reduction of 25% to age 65 (due to the accident). Alternatively, figures can be derived by using a multiplier; using this approach Mr. Benning calculated the present value of a $20,000 annual loss at $269,600.
[191] Mr. Szekely’s multiplier was smaller than Mr. Benning’s due to the differing contingencies used by the two economists, the largest ones being voluntary parttime employment and voluntary withdrawal from the labour force. As a result, Mr. Benning’s multiplier was $13,840 whereas Mr. Szekely’s was $11,979.
[192] The evidence indicated that Ms. Lu is something of a driven individual and from that I conclude she would be much less likely than the average individual to voluntarily work part-time or to voluntarily withdraw entirely from the workforce. I therefore conclude Mr. Benning’s approach on contingencies is more appropriate, although I consider that an adjustment should be made for some possible voluntary reduction from full-time work.
[193] Doing the best I can with the available evidence, I consider that an annual loss of $20,000 properly reflects the loss Ms. Lu will incur due to her loss of opportunities and reduced work capacity. From these various considerations I conclude that the proper award for loss of future earning capacity is $250,000.
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