Will a realtor be able to prove commission losses for hypothetical sales? What about loss of future earning capacity where she is plagued by ongoing symptoms?
In the case of Willett v. Rose (2017 BCSC 627), the plaintiff was a realtor in Prince George. She alleged that as a result of her injuries, her income was impacted. She initially cut back her hours significantly for six months, then returned to full time work but continued to miss time for symptoms and treatments. She argued that she was working at less than full capacity which compromised her ability to solicit her business and attract clients.
In considering her claim for significant loss of earning capacity, Mr. Justice Smith reviewed her reported commissions which ranged from $55k through $181K. He observed that her post-injury income remained consistent and slightly higher than before injury. In rejecting her claim for wage loss from the date of injury to trial, he found the following:
[62] In this case, the plaintiff was able to continue working in her pre-accident job, but claims a past loss of earning capacity based on “past hypothetical events”–additional sales that she might have made between the date of the accident and the date of trial.
[63] But even on a standard of “substantial possibility”, I am not satisfied that the plaintiff has proved that loss. I have no doubt that she has found it more difficult to do her job, but the evidence does not indicate that difficulty has translated into a significant change in what she has been able to earn. Since the accident, she had the mixture of very bad, average and very good years that is to be expected in her profession. Although there have been times when she has been unable to work, the flexibility inherent in her work appears to have allowed her to compensate. The suggestion that there were other sales she could have made and other commissions she could have earned is entirely speculative.
[64] Therefore, I find that the plaintiff has failed to prove a past loss of earning capacity on either a balance of probabilities or on the basis of a real and substantial possibility.
However, he accepted that due to “continuing pain and limitation” her ability to earn income in the future was likely impaired. He concluded that the impairment may result in early retirement or reducing her workload – both of which were impossible to precisely predict. Employing the capital asset approach, he awarded $100,000.00 or roughly the equivalent of two years’ net average earnings.
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