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Non-Wage Benefits

If I have to retire early, will I get compensation for the loss of pension contributions?  What if I just reduce my workload?  How will my lawyer prove that?

In this week’s case, Justice Baker considered an issue arising after a trial had been completed in a personal injury claim (Oberholtzer v Tocher 2018 BCSC 1089).  The plaintiff had adduced economic evidence at trial outlining what the plaintiff’s loss was likely to be from an early retirement.  Justice Baker, however, found that the plaintiff was likely to go down to part-time work rather than retire early altogether – a possibility the economist had not provided figures for.  She directed that an economist determine the present value of the plaintiff’s future loss based on a reduced workload.

The economist produced those numbers – which included non-wage benefits at 10%.  The defendant disputed those amounts, arguing that non-wage benefits could not be considered given that no evidence was led in support of those benefits at trial.  Justice Baker disagreed:

[7]             In Hay v. Hofmann (1999), 61 B.C.L.R. (3d) 275 (C.A.) [Hay], the Court of Appeal confirmed that:

[67]      I believe that a consistent theme running through the authorities is that a trial judge, in deciding on an award of damages under the heading of anticipated future loss, whatever term one actually uses, ought to endeavour to make an informed estimate or assessment of anticipated loss as opposed to merely undertaking to do a computation. Because one is considering the future which has about it always an aspect of the unknowable, contingencies positive and negative fall to be considered. Ultimately, a best estimate is required and while there will almost invariably be mathematical calculations to be considered, a purely mathematical approach will usually not be appropriate because such an analysis is too limited in scope.

[8]             I find that non-wage benefits are properly part of the plaintiff’s future loss of income. The plaintiff is to be compensated for her future income losses flowing from her injuries. Pension contributions represent a financial benefit flowing to the plaintiff from her employment. While the pension adjustment figure on her tax returns varies each year, I accept that it has averaged 10% of her T4 income. I find that it is probable that her pension contributions will be reduced in relation to her reduced income. I find that there is adequate evidence before the court to establish, with the assistance of Mr. Hildebrandt, a reasonable present value for these non-wage benefits.

[9]             As stated in Hay, a purely mathematical approach is not usually appropriate to establish damages for future income loss. Taking into consideration the calculations prepared by Mr. Hildebrandt, the tax returns of the plaintiff, the submissions of counsel, and my review of the law, I award the plaintiff $78,000 for future income loss.

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