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Wage loss where the employer is very accommodating

If you are injured, but your employer accommodates your injuries such that the actual financial loss is minimal, are you entitled to past and future income loss? If so, how is the loss assessed?

In this week’s case of Ali v. Rai (2015 BCSC 2085) the plaintiff was a 50-year-old bookbinder. He and his employer had an arrangement where he was paid for a 40-hour workweek, and overtime was banked and calculated as a time and a half, then used to maintain the plaintiff’s consistent level of pay. Post-injury, he was no longer able to perform the physical demands of his role, he accrued fewer and fewer overtime hours and used his vacation time to top up hours missed. While he suffered no actual financial loss (thanks to the overtime arrangement and vacation time), his use of these benefits was a loss valued at $8,000.00. Despite his nominal past loss of income, Madam Justice Duncan considered his accommodating employer and possible outcomes once she retired, ultimately concluding there was a real and substantial possibility of a future loss, assessed using the “capital asset” approach:

[157]     I am satisfied the plaintiff has proven there is a real and substantial possibility of loss of income earning capacity in the future. He has an accommodating employer but she may retire and sell or reduce his wage to one commensurate with the hours he is working on set up and supervising and not allow him to draw on a dwindling overtime bank. If he loses his job he is less valuable to himself and potential employers because he is not fully able to do physical work.

[158]     As noted earlier in these reasons, there are two ways of measuring loss of capacity: the earnings approach and the capital asset approach. The parties differ on how to assess the loss. The plaintiff advocates the capital asset approach while the defendants seek what is essentially a mathematical calculation of his historical earnings and projecting into the future.

[159]     The plaintiff’s future loss deals with hypotheticals, not absolutes, and I find the capital asset approach to be more apt to his particular circumstances. The plaintiff earned $55,000 in 2012, the most recent tax return filed at trial. He seeks three years of income for his potential loss. This is out of step with the authorities upon which he relies. In both Werner and Davidge the trial judges awarded roughly two years of income for individuals with accommodating employers who nevertheless proved a real and substantial possibility of loss. I see no reason to depart from such an assessment and, accordingly, I award the plaintiff two years of income for a total of $110,000 under this head of damages.  

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