In the recent case of Bains v. Cheema, 2022 BCCA 430, the BC Court of Appeal upheld an award for a plaintiff’s loss of earning capacity. However, in doing so the Court grappled with two errors made by the trial judge.
In the underlying action, the plaintiff suffered injuries in a motor vehicle accident. Prior to the accident, the plaintiff had been doing heavy physical labour as a runner in a lumberyard and also working part-time in his family’s trucking business. The plaintiff’s career plan was to work as a long-haul truck driver in his family’s business.
There was evidence that some aspects of this work as a long-haul truck driver aggravated his symptoms. The plaintiff testified at trial that he sometimes declined opportunities to help unload trucks that would earn him additional income. The plaintiff also testified that he had declined premiums to do additional long-haul runs on his days off because of his back pain. Expert evidence supported that his lower back pain was likely to persist for the foreseeable future.
The trial judge awarded damages for loss of future earning capacity. The defendant appealed on the basis that the trial judge erred in principle in awarding damages based on a potential future event giving rise to a real and substantial possibility of pecuniary loss.
The Court of Appeal found that two errors had been made by the trial judge in coming to an award for loss of future earning capacity:
1. The Rab v. Prescott Error
The Court found that in coming to an award of loss of future earning capacity, the trial judge had erroneously considered that a real and substantial possibility of a future income loss flowed from demonstration of the impairment of a capital asset alone. The Court made reference to the three step approach summarized in Rab v. Prescott, 2021 BCCA 345. If the trial judge found an impairment of a capital asset as a first step, the required second step, which was not done by the trial judge, was then to determine whether there is a real and substantial possibility that the impairment will cause a future pecuniary loss.
2. Error of Impermissible Speculation
The Court also found that the trial judge had erred by engaging in impermissible speculation as to the nature of the future event giving rise to a real and substantial possibility of a pecuniary loss. The trial judge had considered it “possible” that technological and economic change might result in long-haul driving ceasing to be a viable career for the plaintiff. If plaintiff was then required to change careers, the judge found that his leg and back pain would disqualify him from pursuing other vocations that he could have undertaken had the accident not occurred. The Court held that the anticipated future event—the decline of the commercial trucking industry—was unsupported by any evidence adduced at trial and rooted in speculation.
While the Court found the trial had erred as above, it ultimately found unchallenged evidence that the plaintiff was unable to take on additional work, which would have given him additional pay, due to his back-related pain. Consequently, future income loss due to the respondent’s loss of capacity was established on a different basis. The quantum of the trial judge’s award was found to be reasonable and upheld.