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Loss of Earning Capacity for Planned Career

How will the court assess my loss of earning capacity if my injuries prevent me from pursuing my career dreams, but my dream career has yet to begin?

In yesterday’s decision of Bains v. Gret’s Projects Inc. (2017 BCSC 1530), the plaintiff was 27 years old at the time of the crash. She had a Bachelor of Arts in sociology and had an interest in a career in law enforcement. She was interviewed by Canadian Border Services Agency on two occasions, but was not hired. She obtained a job at the BC Women’s and Children’s Hospital, and volunteered with Corrections Canada to gain experience and improve her application for jobs in law enforcement or border security.

After the crash, the plaintiff missed two weeks of work, then completed a graduated return. Since returning to work, she had missed a total of two to three sick days due to her injuries. She had taken a position with reduced hours because it was a permanent position, and provided benefits. However, the reduced hours gave her three days off per week rather than two, and she was better able to cope with her injuries. She did not take a full-time opportunity that was available to her.

The functional testing indicated that she would be unable to work in border security or law enforcement due to her injuries. The vocational opinion indicated that absent injury, she had a better shot than most at obtaining one of these jobs, given her background, education, and second language. The vocational expert opined that her injured status lost her 60% of the occupations she could have done before the crash.

In awarding $32,560 in income loss to the date of trial and $450,000.00 in loss of future earning capacity, Madam Justice Young provided the following commentary on the assessment of loss of earning capacity in a case where the losses are based on hypothetical career trajectories rather than established patterns of earnings and losses:

[123]     The Plaintiff urges the Court to rely on the loss of earnings approach but of course they are basing their approach on an assumption that the plaintiff would have been successful in becoming a Canada border security agent.

[124]     If I based the plaintiff’s future loss of earning capacity on an assumption that her loss is limited to the reduction in hours she works at her current job, then her future loss of earning is limited to $210,103 plus loss of one over time shift per month which would be $49,124 for a total award of $259,227. I have accepted the plaintiff’s economist expert, Mr. Bening’s multiplier of 19,494 to evaluate this scenario.

[125]     I believe the plaintiff’s loss is larger than that because she has lost the ability to work at certain new careers that were interesting to her. I am not satisfied that she would succeed at obtaining the CBSA position but if she had a 50% chance of doing so then her future loss of earning capacity is much higher than it would be at her current position.

[126]     I find a reasonable award of damages for the plaintiff for future loss of earning capacity using the capital asset approach is $425,000.

[127]     I award a total $450,000 to the plaintiff for past and future loss of capacity.