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Realtor commission losses and a market downturn

If my  injuries coincide with the downturn in the real estate market, can I successfully prove my realtor commission losses are related to injuries?

In the case of Javier v. Hooper (2014 BCSC 1253), the plaintiff was a realtor injured in three separate motor vehicle collisions between 2009 and 2012. She claimed no income loss related to the first and second collisions, saying that she started losing income after the third collision. She claimed that absent injury her annual net commission should have been an average of $78,000.00 from 20-30 sales per year (avg sale commission of $6K), with $120-180K in gross commission and variable expenses of 40-60%. She claimed significant losses from the date of the third collision through trial.

Work related witnesses testified that leading up to the third collision she was among the top 20% of realtors in the Fraser Valley, and that realtors in that range tend to stay there and have a good career. Mr. Justice Greyall summarized the law that past income loss is “based on what the plaintiff would have, not could have, earned but for the injury that was sustained” (para 215), and that the question was whether “but for the third accident the plaintiff would have earned more income from real estate sales than she actually did” (para 217). He recognized that she would have suffered a lower income due to the slow market, but identified a number of missed commissions which he was satisfied were caused by her injuries:

[220]      The effort the plaintiff was putting into her work after the Third Accident, notwithstanding her injuries, was not insubstantial. She obtained five new listings after this accident – the first on August 31, 2012, another October 29, then November 15 and two November 16.

[221]     I conclude from the evidence before me that the plaintiff was trying her best to perform her functions as a real estate agent but that the decline in the real estate market which was occurring in 2012 and 2013 significantly affected her sales.

[222]     I do not accept Ms. Javier could have achieved the level of sales projected by her counsel.

[223]     I am also of the view however that given the nature of the plaintiff’s injuries and her evidence about how the injuries and ongoing pain affected her mood and disposition her sales did suffer.

[224]     Dr. Levin noted her motivation and drive could suffer given her injuries. Mr. Hofer testified he noticed a drop off in Ms. Javier’s activity level following the Third Accident.

[225]     I conclude that between the Third Accident and the date of trial it is more likely than not that she lost several opportunities to obtain listings and make commissions on sales.

[226]     I find that but for the accidents, the plaintiff would have earned one more commission in the remaining four months of 2012 and three more commissions in 2013. On the basis that she earned approximately $6,000 gross per commission, she would have earned $24,000 more in commissions between the date of the Third Accident and the date of the trial. I would reduce this gross amount by 50% to reflect her expenses, for an award of $12,000 for past wage loss.

He went on to consider her claim for loss of future earning capacity, which she claimed as $210,000.00 – on the basis that absent injury she should have 20-30 sales annually, as above. The defence argued that she failed to prove any future loss of earning capacity. Mr. Justice Greyall decided that for the next three years she would continue to earn approximately three fewer commissions than absent injury. After deducting her likely expenses, he awarded $27,000.00 for her loss of earning capacity.