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Varying An Award For Damages

What if the court inadvertently counted a loss twice? What if the result was to award extra due to the double-counting?

This case, Nahal v Ram (2016 BCSC 1439), is a review of a damages award obtained by the plaintiff, Mr. Nahal, in the case of Nahal v Ram (2016 BCSC 39) which was decided earlier this year.

In the earlier case Mr. Nahal was successful in obtaining an award for both past and future wage loss. After the decision, defence counsel made an application to the court to have the award for past wage loss struck or altered from the previous judgement based on a erroneous classification of damages. Upon this application counsel for the plaintiff conceded that he had erroneously categorized and included a past wage loss calculation (loss for delayed entry into the real estate workforce) in the future wage loss assessment. The Court did not realize that the losses caused by the delay were already calculated under future wage loss which resulted in the Court including these losses under the past wage loss head of damages as well. Essentially, there was a double dipping as a portion of the losses resulting from the late entry into the workforce were awarded twice: once as past income loss, and once as loss of future earning capacity.

Before turning to the alleged error in assessment of the damages award, Mr. Justice Jenkins reviewed the court’s jurisdiction to reconsider a judgement:

[5]             The first thing to consider in addressing the arguments made is the Court’s jurisdiction on a reconsideration. As set out in Inmet Mining Corp v. Homestake Canada Inc., 2002 BCSC 681, the applicable principles are as follows:

  1. A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).
  2. The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).
  3. Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).
  4. The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.)).
  5. It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard, [1951] S.C.R. 346; Angle v. Canada (Ministry of National Revenue), [1975] 2 S.C.R. 248).
  6. New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).

[6]             Elsewhere cases set out that a case should be reopened if it would be a miscarriage of justice to allow the previous order to stand, i.e. it “would leave one party with such an unfair benefit or advantage at the expense of the other that a reasonable person would regard it as shocking or unconscionable” (Aquiline Resources Inc. et al. v. Wilson et al., 2005 BCSC 1461 at paras. 9 and 12.

[7]             The parties agree that the previous order must be reconsidered, suggesting that a number of corrections should be made. To that extent plaintiff’s counsel did not object to the defendant making submissions on how the decision should be corrected.

Mr. Justice Jenkins concluded that he had jurisdiction to alter the award and that there was in fact a miscategorising of damages. This miscategorising resulted in amounts being included twice, and both counsel agreed that an adjustment needed to be made. Upon review of the expert financial evidence tendered at trial the court found that Mr. Nahal’s reward for past wage loss should be reduced from $87,122  to $19,948 to account for the amount already included in the loss of future earning capacity award.

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