Diminishment of Earning Capacity – Review the Extent, Duration and Effect of the Injury

In Dennsteadt v. Lepine, 2018 BCSC 220, the Court reviews the law as it pertains to economic loss. As we all know, there are two approaches in assessing this category, and it does not hurt to review the law on this subject, although it is well known:

[63]        Goepel J.A. in Grewal v. Naumann, 2017 BCCA 158, recently summarized the approach to the past and future loss of earning capacity:

[48]      In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events.  The plaintiff is not required to prove these hypothetical events on a balance of probabilities.  A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.  If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event.  Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach:  Perren v. Lalari, 2010 BCCA 140 at para. 32. 

[49]      The assessment of past or future loss requires the court to estimate a pecuniary loss by weighing possibilities and probabilities of hypothetical events.  The use of economic and statistical evidence does not turn the assessment into a calculation but can be a helpful tool in determining what is fair and reasonable in the circumstances:  Dunbar v. Mendez, 2016 BCCA 211 at para. 21.

[64]        As an initial threshold issue, the plaintiff must demonstrate both impairment to her earning capacity and that, whether there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss.  It is not to be an exercise in the abstract though at the same time it was described in Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 (S.C.C.) as “gaz[ing] … deeply into the crystal ball”. 

[65]        There are two ways of quantifying loss: the earnings approach and the capital asset approach.  An earnings approach is more useful when the loss is more easily measurable.  The capital asset approach will be more useful when the loss is not easily measurable.  With respect to the latter approach, Finch J. (as he then was) in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.) identified several considerations for assessing loss, namely, whether: 

  1. the plaintiff has been rendered less capable overall from earning income from all types of employment;
  2. the plaintiff is less marketable or attractive as an employee to potential employers;
  3. the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
  4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. 

The court reviewed the extent, duration and effect of the injuries and did not agree with the Plaintiff’s submission that the injuries were as serious as claimed.

The Plaintiff was claiming the following in this category:

The plaintiff provided low and high loss scenarios which ranged from $432,492 to $608,126.  A minimal reduction to account for negative contingencies of 10% is suggested by the plaintiff.  Alternatively, under the capital asset approach, based on the cases of Farand v. Seidel, 2013 BCSC 323; and Kaiser v. Williams, 2015 BCSC 646, the plaintiff submits that an award of $350,000 would be appropriate.

The defence did not agree with this position and argued that no award should be made. The Court did not agree, but only awarded $90,000.00.

Here are some of the considerations that the Court raised.

  • the ability to continue post-Accident with an active and vigorous recreational and sports life, on a regular basis, though not without pain;
  • the ability to continue post-Accident regular housekeeping and child care (now two children) post-Accident, though with pain and in the plaintiff’s view not to as high a standard as pre-Accident.  Pre-Accident the plaintiff had a hired housekeeper.  The family has no plans to hire a nanny for the children;
  • the ability to continue post-Accident with teaching and graduate student advisory work.  Including her recent acceptance to take on another teaching course which would cross over with an existing course she is teaching;
  • though not a necessary requirement, the absence of a functional capacity report.  I note that in all but perhaps one of the plaintiff’s cases on general and future loss of capacity, a report was tendered.  A common feature of a report by an occupational therapist in addition to evaluating capacity is the identification of strategies and items which could assist an individual in performing their work adequately; 
  • the plaintiff’s limited need to use over-the-counter medications (two pills once a week); and the absence of prescription medications for the plaintiff’s condition; 
  • the independence and flexibility in scheduling afforded by a private clinical practice to accommodate the plaintiff’s circumstances;
  • Dr. Waseem’s opinion, that though the prognosis was poor for a full symptomatic recovery, some further improvement was possible with the recommended treatment covered in his report.  He also agreed that chronic conditions were not necessarily permanent and could resolve; 
  • The plaintiff’s testimony that she had reached about 70% recovery of her pre-Accident condition.  My sense of the evidence is that it is greater and could improve; 
  • Dr. Waseem’s adjustment to the plaintiff’s neck posture which he stated relieved some pain; 
  • Dr. Waseem’s restrained opinion that “[i]n future, should she to decide [sic] to take on more work or increase her work hours, she may encounter difficulty given her physical condition.” [emphasis added].  In cross examination, Dr. Waseem acknowledged that he did not conduct a functional capacity evaluation and was not knowledgeable of the work requirements of counsellors; 
  • Dr. Waseem’s evidence that the plaintiff’s mountain biking, surfing, skiing and carrying a child could be contributors to the plaintiff’s pain; and 
  • the lack of evidence as to why measures could not be applied or taken when she felt discomfort or pain in her counselling sessions or when at her computer, e.g. taking breaks, modifying her position or adapting movement into her session when with a client, or the use of various supportive braces or wraps for her lower and upper back, or elevating desk surface devices.  The use of pain medication to provide relief for her to perform her work has also not been addressed. 


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