The Canadian Abridgment eDigests - Remedies

30 Pages·2016·0.09 MB·English

The Canadian Abridgment eDigests - Remedies
The Canadian Abridgment eDigests -- Remedies
2016-47
November 21, 2016
REM.I.2.b.v
Subject Title: Remedies
Classification Number: I.2.b.v
Damages -- Remoteness and foreseeability -- Torts -- Economic loss
Contractor obtained labour and material payment bond from insurer in relation to project for municipality --
Bond provided that any person who was not paid by contractor could sue insurer to recover under bond any sum
that might be due pursuant to terms of contract with contractor -- Contractor commenced breach of contract
claim against municipality, architect, and project manager seeking damages caused by various delays and
damages for breach of contract -- Contractor’s claim included claims of subcontractors for delay but also
claimed against particular subcontractor for set-off resulting from alleged deficient workmanship --
Subcontractor commenced action against contractor, insurer, and municipality seeking recovery of amount
owing -- Subcontractor brought motion for leave to amend statement of claim to allege municipality was
responsible for actions of its consultants and therefore responsible to subcontractor for delay -- Motion
dismissed on terms -- Proposed amendments based in negligence were struck with leave to bring further motion
to amend claim in order that subcontractor could plead requisite elements of claim in negligence for recovery of
economic loss -- Proposed amendments did not specify what cause of action was relied upon by subcontractor
against municipality, though subcontractor advised claim against municipality was based in negligence for
economic loss -- Subcontractor had not provided any cases where any subcontractor pursued claim for recovery
of economic loss in negligence against owner of construction project -- Without material facts being pleaded, it
was premature to consider whether amendments were tenable in law.
Ozz Electric Inc. v. Zurich Insurance Co. (2016), 2016 CarswellOnt 15865, 2016 ONSC 6331, M.D. Faieta J.
(Ont. S.C.J.); additional reasons at (2016), 2016 CarswellOnt 16542, 2016 ONSC 6660, M.D. Faieta J. (Ont.
S.C.J.) [Ontario]
REM.I.3.b
Subject Title: Remedies
Classification Number: I.3.b
Damages -- Damages in contract -- Leasing agreement
Plaintiff, in his personal capacity and on behalf of his brother’s corporation, (1164) were awarded damages
totaling $144,228.69 following decision that defendants had breached their contract with and induced tenant
and franchisee to breach her contract with 1164 -- Litigation arose from lease relating to restaurant in
commercial mall -- It was held that defendants’ refusal to provide written consent for 1164 subletting relevant
premises was unreasonable and early termination of Head-Lease materially diminished 1164’s rights --
Defendants appealed liability and damages award -- Appeal dismissed -- There was no error in finding that
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The Canadian Abridgment eDigests - Remedies
defendants consented to 1164 subletting to franchisee -- Surrounding circumstances, including legal steps taken
and expenses incurred by 1164 in creating Sub-lease supported conclusion -- There was neither error finding
defendants improperly induced franchisee to breach her contract that flowed from settlement between 1164 and
franchisee nor error concluding that defendant’s conduct was intentional and malicious based on facts --
Damages awarded for inducement to breach were not excessive.
Burns v. Sohi (2016), 2016 CarswellOnt 9520, 2016 ONCA 478, G. Pardu J.A., J.C. MacPherson J.A., R.G.
Juriansz J.A. (Ont. C.A.); affirming (2012), 21 R.P.R. (5th) 205, [2012] O.J. No. 2922, 2012 CarswellOnt 8084,
2012 ONSC 2414, H.M. Pierce R.S.J. (Ont. S.C.J.) [Ontario]
REM.I.4.c
Subject Title: Remedies
Classification Number: I.4.c
Damages -- Damages for breach of fiduciary duty -- Professional relationship
Plaintiff was long-time friend of personal defendant and one of his companies, defendant mortgagee, loaned
money to plaintiff that was secured by home mortgage -- Plaintiff repeatedly refinanced, debt increased and he
was not able to make monthly payments so he decided to sell property -- Plaintiff retained personal defendant
and defendant realty company, another of personal defendant’s companies, to act as his realtor -- Mortgagee
foreclosed and, assisted by realtor, sold plaintiff’s home with significant shortfall left owing on debt -- Plaintiff
brought action seeking damages for defendants’ breaches of fiduciary duty -- Action allowed -- Personal
defendant and realty company breached fiduciary duty to plaintiff, and mortgagee knowingly participated in
breaches and shared responsibilities for resulting consequences -- While plaintiff’s claims were not barred by
res judicata or related doctrines, he was bound by orders and findings in foreclosure proceeding, but claims here
were separate and distinct -- While plaintiff had misled foreclosure court, his misconduct was not connected to
his relationship with personal defendant as his realtor and personal defendant’s breaches of fiduciary duty, and
court exercised discretion to grant equitable relief to plaintiff -- Commission mortgagee paid to realty company
resulted from own listing agreement and order nisi, was not breach of fiduciary duty vis-à-vis plaintiff, and
necessary causal link between fiduciary breaches and commission was not established -- Plaintiff remained
seriously mentally distressed by personal defendant’s multiple acts of disloyalty, plaintiff suffered
non-pecuniary loss and was awarded damages of $15,000 -- Compensatory award was not sufficient to express
court’s repugnance at personal defendant’s misconduct as realtor or to punish and deter such behaviour --
Personal defendant’s conduct was not malicious but it was high-handed and marked departure from ordinary
standards of behaviour reasonably expected of realtor -- Plaintiff was awarded punitive damages of $25,000,
and mortgagee was not entitled to set-off any part of award against shortfall owing on plaintiff’s debt.
Mulligan v. Stephenson (2016), 2016 CarswellBC 2954, 2016 BCSC 1941, Dickson J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.i.A.13
Subject Title: Remedies
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The Canadian Abridgment eDigests - Remedies
Classification Number: I.5.a.i.A.13
Damages -- Damages in tort -- Personal injury -- Special damages (pre-trial pecuniary loss) --
Expenditures -- Multiple expenses considered
Plaintiff claimed damages for injuries allegedly suffered in two motor vehicle accidents, one in respect of which
defendant Mc denied liability ("2011 MVA"), and one in respect of which defendant Mac admitted liability
("2014 MVA") -- Plaintiff had previously suffered significant injuries in accident in 2006 when she was struck
by motor vehicle ("2006 MVA"), which injuries were exacerbated by another accident in 2010 ("2010 MVA")
-- In addition to physical injuries suffered in those earlier accidents, there was evidence of cognitive issues, and
psychiatric complications -- Plaintiff’s medical history was further complicated by accident in 2012 ("2012
MVA"), which resulted in significant injuries and left her entirely disabled for employment -- Plaintiff awarded
$9,334.34 in special damages -- Acupuncture expenses plaintiff claimed she incurred could not be related to
2011 MVA -- Prescription costs incurred of $23.51 and ambulance fee of $80 following 2011 MVA were
allowed, reduced by 20 percent to reflect plaintiff’s contributory negligence -- Plaintiff’s claim for net loss on
purchase and sale of car she used while her vehicle was being repaired, as well as collision damage repair costs
after 2011 MVA, was allowed in amount of $8,778.73, reduced by 10 percent to $7,900.86 to reflect her
contributory negligence in failing to move her vehicle only -- Special costs were allowed as against Mc in total
amount of $ 8,004.37 -- Further costs claimed for physiotherapy, parking at hospital, taxi and car rental
expenditures, cost of knee brace, and cost of parking pass were incurred in acute phase of recovery from 2014
MVA injuries -- Those expenses were allowed as against Mac in amount of $1,329.97.
Khudabux v. McClary (2016), 2016 CarswellBC 2859, 2016 BCSC 1886, A. Saunders J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.i.B.1
Subject Title: Remedies
Classification Number: I.5.a.i.B.1
Damages -- Damages in tort -- Personal injury -- Special damages (pre-trial pecuniary loss) -- Past loss of
income -- Employment income
Plaintiff was 19-year-old male who worked full time as shunt truck driver and equipment operator -- Plaintiff’s
vehicle collided with defendants’ vehicle and he suffered injuries to his neck, shoulders, legs, knees, wrists,
mid-back, and low back -- Plaintiff was off work for about nine weeks and then underwent graduated return to
work program -- Four years after accident, plaintiff continued to suffer from constant low back pain and
intermittent numbness in his left leg -- Plaintiff commenced action against defendants for damages for
negligence, and defendants admitted liability -- Action allowed -- Plaintiff was awarded gross amount of
$15,300 for past loss of earning capacity -- Plaintiff’s gross wage loss until he completed his graduated return to
work, exclusive of any overtime income, totalled $6,818.50 -- In absence of record of overtime offered and
declined before August 2015, plaintiff’s estimate of lost overtime was no more than guess and was insufficient
to support claim for lost overtime -- Starting August 2015, plaintiff probably would have worked about half of
overtime shifts, plus some extra overtime hours, and $8,500 was fair measure of that loss -- No award was
made for four-week period some four years after accident when plaintiff went on short-term disability for stress.
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O’Brien v. Cernovec (2016), 2016 CarswellBC 2833, 2016 BCSC 1881, Pearlman J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.i.B.2
Subject Title: Remedies
Classification Number: I.5.a.i.B.2
Damages -- Damages in tort -- Personal injury -- Special damages (pre-trial pecuniary loss) -- Past loss of
income -- Plaintiff unable to resume former employment
Plaintiff, professional dance instructor, was injured in car accident in May 2011 -- Liability was admitted --
Plaintiff reported headaches, pain in her arm and back, inability to handle light, soreness in her lower left side,
vomiting, and fatigue -- She missed four weeks of work immediately post-accident and was in "excruciating"
pain for two years thereafter -- Plaintiff testified that after accident, restrictions on her ability to turn due to her
neck problems and dizziness prevented her from rotating her neck or "spotting" during dance turns -- Plaintiff
awarded $53,200 for past loss of income -- Based on whole of evidence, plaintiff suffered strains or sprains of
her lumbosacral spine, right neck and shoulder girdle as result of accident -- Secondary to those injuries
plaintiff developed thoracic outlet syndrome (TOS), decreased mobility of left sacroiliac joint, and left
piriformis syndrome, which caused her considerable pain and discomfort -- Plaintiff testified that but for
accident, she would work 13 to 14 hours per week, plus extra four to five hours per week, but her body could
only handle 10 hours per week -- While some symptoms had improved, she still had problems with her neck
and shoulder which impeded her normal activities and movements -- Plaintiff’s pain was chronic -- Best
assessment of plaintiff’s loss immediately post-accident was $2,100, as conceded by defendant -- But for
accident, plaintiff would likely have increased her teaching hours by five hours per week after accident, and her
hourly rate of $50 would have likely increased to $60 by 2013 -- In addition, it was likely that plaintiff would
have worked six of eight weeks in summer had accident not occurred -- Plaintiff had lost opportunity to earn
two weeks’ earnings in 2011 and one week’s earnings in each summer after that to date of trial -- Ten hours of
extra work during dance school year was reasonable assessment of foregone work -- Damages for past losses
and lost opportunities were assessed at $53,200.
English v. Jao (2016), 2016 BCSC 1975, 2016 CarswellBC 3014, Blok J. (B.C. S.C.) [British Columbia]
REM.I.5.a.i.B.3
Subject Title: Remedies
Classification Number: I.5.a.i.B.3
Damages -- Damages in tort -- Personal injury -- Special damages (pre-trial pecuniary loss) -- Past loss of
income -- Plaintiff unemployed or sporadically employed
Plaintiff claimed damages for injuries allegedly suffered in two motor vehicle accidents, one in respect of which
defendant Mc denied liability ("2011 MVA"), and one in respect of which defendant Mac admitted liability
("2014 MVA") -- Plaintiff had previously suffered significant injuries in accident in 2006 when she was struck
by motor vehicle ("2006 MVA"), which injuries were exacerbated by another accident in 2010 ("2010 MVA")
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The Canadian Abridgment eDigests - Remedies
-- In addition to physical injuries suffered in those earlier accidents, there was evidence of cognitive issues, and
psychiatric complications -- Plaintiff’s medical history was further complicated by accident in 2012 ("2012
MVA"), which resulted in significant injuries and left her entirely disabled for employment -- No award made
for past loss of earnings -- Even if injuries plaintiff sustained in 2011 and 2014 MVAs continued to play
significant role in her condition, her analysis did not account for full effect of negative contingency associated
with her pre-existing psychiatric and physiological conditions, and thus considerably overstated her loss --
Plaintiff was terminated from her employment in January 2011 and as of March, her depression still had not
stabilized, meaning that date of her return to employability was uncertain -- On expert evidence, there was
reason to believe that as of February 2011, plaintiff was at risk of major depressive episode, potentially any
time her employment was terminated -- Even without 2011 and 2014 MVAs, plaintiff’s prospects of finding
stable employment, post-2011, were significantly reduced -- She had spotty employment record before 2011 --
There was no real and substantial possibility that plaintiff would earned significantly more income but for
subject MVAs, effects of which on her employability was negligible.
Khudabux v. McClary (2016), 2016 CarswellBC 2859, 2016 BCSC 1886, A. Saunders J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.ii.D.3
Subject Title: Remedies
Classification Number: I.5.a.ii.D.3
Damages -- Damages in tort -- Personal injury -- Principles relating to awards of general damages --
Negligence -- Miscellaneous
Plaintiff received facial injections of dermal filler in defendant’s spa -- One week later, plaintiff had electrolysis
on her face in defendant’s spa after assurance it was safe to do so -- Plaintiff’s face swelled and became painful
and she received antihistamine injections at hospital -- Plaintiff required surgeries to remove filler and infection
and to improve her looks -- At trial, defendant was found liable and plaintiff was awarded $6,000 in damages --
Defendant appealed; Plaintiff cross-appealed assessment of damages -- Appeal dismissed; Cross-appeal
dismissed except for trial judge’s failure to provide for prejudgment interest -- Trial judge could have used
clearer headings and addressed elements of cause of action in negligence, but she addressed all elements, some
if only indirectly, and made ample findings of fact to support her decision -- Defendant breached duty of care
by not being knowledgeable about products that were injected into plaintiff or about effects of electrolysis in
same areas so soon afterward -- Trial judge applied "but for" test in broad, robust, and pragmatic way and had
not erred in accepting evidence of plaintiff’s expert over that of defendant’s expert -- Trial judge had not erred
in declining to draw adverse inference from plaintiff’s failure to call particular physician as witness --
Defendant could have called this physician as witness.
Dowell v. Millington (2016), 2016 ONSC 6671, 2016 CarswellOnt 16560, Trimble J. (Ont. S.C.J.) [Ontario]
REM.I.5.a.ii.E
Subject Title: Remedies
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The Canadian Abridgment eDigests - Remedies
Classification Number: I.5.a.ii.E
Damages -- Damages in tort -- Personal injury -- Principles relating to awards of general damages --
Children and students
Plaintiff was initially high school student who was involved in motor vehicle accident, followed by second
accident which aggravated injuries -- Plaintiff brought action against defendant and was awarded non-pecuniary
damages of $85,000 -- Plaintiff suffered daily back pain and had diminished ability to take part in vigorous
sports activities, such as bhangra dancing -- Defendant appealed -- Appeal dismissed -- Award of damages is
fact-finding exercise attracting deferential standard of review -- It was not for appellate court to substitute its
own opinion for trial judge except where it could be said that assessment is so inordinately high as to be wholly
erroneous -- While award of non-pecuniary damages was generous, it was not so inordinately high as to be
wholly erroneous.
Villing v. Husseni (2016), 2016 BCCA 422, 2016 CarswellBC 2981, Bennett J.A., Saunders J.A., Savage J.A.
(B.C. C.A.); affirming (2015), 2015 BCSC 1604, 2015 CarswellBC 2551, A. Saunders J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.iii.C.1
Subject Title: Remedies
Classification Number: I.5.a.iii.C.1
Damages -- Damages in tort -- Personal injury -- Principles relating to non-pecuniary loss -- Pain and
suffering -- Physical injury
Plaintiff, professional dance instructor, was injured when she was rear-ended by defendant’s vehicle -- Liability
was admitted -- Plaintiff reported headaches, pain in her arm and back, inability to handle light, soreness in her
lower left side, vomiting, and fatigue -- She sought assistance of chiropractor and massage therapy, but was in
"excruciating" pain for two years after accident -- Plaintiff testified that after accident, restrictions on her ability
to turn due to her neck problems and dizziness prevented her from rotating her neck or "spotting" during dance
turns -- Plaintiff awarded $105,000 in non-pecuniary damages -- Plaintiff was credible witness -- Based on
whole of evidence, plaintiff suffered strains or sprains of her lumbosacral spine, right neck and shoulder girdle
as result of accident -- Secondary to those injuries plaintiff developed thoracic outlet syndrome (TOS),
decreased mobility of left sacroiliac joint, and left piriformis syndrome, which caused her considerable and
sometimes severe pain and discomfort -- While some symptoms had improved, plaintiff still had problems with
her neck and shoulder which prevented her from carrying heavy loads and which impeded her normal activities
and movements -- Plaintiff’s experts opined that her prognosis was guarded, and there was possibility that she
would have to undergo TOS surgery in future -- Plaintiff’s pain was chronic -- Much of her ability to physically
participate in dance, her happiness and passion, had been taken away from her -- Non-pecuniary damages were
assessed at $105,000.
English v. Jao (2016), 2016 BCSC 1975, 2016 CarswellBC 3014, Blok J. (B.C. S.C.) [British Columbia]
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The Canadian Abridgment eDigests - Remedies
REM.I.5.a.iii.D.1
Subject Title: Remedies
Classification Number: I.5.a.iii.D.1
Damages -- Damages in tort -- Personal injury -- Principles relating to non-pecuniary loss -- Loss of
amenities -- Mobility
Plaintiff, professional dance instructor, was injured in car accident -- Liability was admitted -- Plaintiff reported
headaches, pain in her arm and back, inability to handle light, soreness in her lower left side, vomiting, and
fatigue -- She sought assistance of chiropractor and massage therapy, but was in "excruciating" pain for two
years after accident -- Plaintiff testified that after accident, restrictions on her ability to turn due to her neck
problems and dizziness prevented her from rotating her neck or "spotting" during dance turns -- Plaintiff
awarded $105,000 in non-pecuniary damages -- Plaintiff was credible witness -- Based on whole of evidence,
plaintiff suffered strains or sprains of her lumbosacral spine, right neck and shoulder girdle as result of accident
-- Secondary to those injuries plaintiff developed thoracic outlet syndrome (TOS), decreased mobility of left
sacroiliac joint, and left piriformis syndrome, which caused her considerable and sometimes severe pain and
discomfort -- While some symptoms had improved, plaintiff still had problems with her neck and shoulder
which prevented her from carrying heavy loads and which impeded her normal activities and movements --
Plaintiff’s experts opined that her prognosis was guarded, and there was possibility that she would have to
undergo TOS surgery in future -- Plaintiff’s pain was chronic -- Much of her ability to physically participate in
dance, her happiness and passion, had been taken away from her -- Non-pecuniary damages were assessed at
$105,000.
English v. Jao (2016), 2016 BCSC 1975, 2016 CarswellBC 3014, Blok J. (B.C. S.C.) [British Columbia]
REM.I.5.a.iii.F
Subject Title: Remedies
Classification Number: I.5.a.iii.F
Damages -- Damages in tort -- Personal injury -- Principles relating to non-pecuniary loss -- Multiple
factors considered
Plaintiff was 19-year-old male who was injured in motor vehicle accident -- Plaintiff’s vehicle and defendants’
vehicle were approaching intersection from opposite directions when defendant driver attempted left turn
wherein plaintiff’s vehicle struck rear of defendants’ vehicle -- Plaintiff suffered injuries to his neck, shoulders,
legs, knees, wrists, mid-back, and low back -- Four years after accident, plaintiff continued to suffer from
constant low back pain and intermittent numbness in his left leg -- Plaintiff commenced action against
defendants for damages for negligence, and defendants admitted liability -- Action allowed -- Plaintiff was
awarded $70,000 for non-pecuniary damages -- Minor soft tissue injuries to neck, mid-back, shoulders, legs,
knees, wrists, and forearms were resolved within two months of accident -- Plaintiff sustained soft tissue
injuries to his lower back and experienced chronic low back pain -- As result of his low back pain, plaintiff tired
as day progressed, experienced pain and discomfort, and sometimes struggled to complete his shifts -- Plaintiff
no longer derived same enjoyment from his work as he did before accident, and his frustration at times led him
to withdraw into himself and to limit his social contacts -- Plaintiff would experience discomfort and occasional
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pain in performing housekeeping tasks with prolonged bending or stooping, and suffered some diminution in
his enjoyment of life.
O’Brien v. Cernovec (2016), 2016 CarswellBC 2833, 2016 BCSC 1881, Pearlman J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.iii.G
Subject Title: Remedies
Classification Number: I.5.a.iii.G
Damages -- Damages in tort -- Personal injury -- Principles relating to non-pecuniary loss --
Miscellaneous
Plaintiff claimed damages for injuries allegedly suffered in two motor vehicle accidents, one in respect of which
defendant Mc denied liability ("2011 MVA"), and one in respect of which defendant Mac admitted liability
("2014 MVA") -- Plaintiff had previously suffered significant injuries in accident in 2006 when she was struck
by motor vehicle ("2006 MVA"), which injuries were exacerbated by another accident in 2010 ("2010 MVA")
-- In addition to physical injuries suffered in those earlier accidents, there was evidence of cognitive issues, and
psychiatric complications -- Plaintiff’s medical history was further complicated by accident in 2012 ("2012
MVA"), which resulted in significant injuries and left her entirely disabled for employment -- Plaintiff awarded
$32,000 in non-pecuniary damages -- On evidence, 2011 MVA likely caused significant aggravation of
pre-existing mid-back and myofascial pain from which plaintiff was suffering due to 2006 and 2010 MVAs --
There was likely only temporary aggravation in her physical symptoms due to 2014 MVA, with some small
degree of reduction in her resiliency in respect of future trauma -- Accounting for aggravation of plaintiff’s
pre-existing injuries from 2011 MVA and also from tortious and non-tortious injuries she subsequently
sustained, her non-pecuniary damages were assessed globally at $75,000 -- Given plaintiff’s "original position"
and number of intervening traumas, great disparity did not exist between pain, suffering, and loss of enjoyment
of life that plaintiff now endured, and situation she would find herself in had collision with Mc never occurred
-- Accordingly, plaintiff’s award was reduced to reflect that probability and extent to which her current
condition was only marginally worse than what it would otherwise have been -- Global award of $75,000 for
non-pecuniary damages for 2011 MVA was reduced to $30,000 to reflect that probability and extent to which
plaintiff’s current condition was only marginally worse than what it would otherwise have been -- That figure
was further reduced by 20 percent to reflect plaintiff’s contributory negligence in 2011 MVA -- Plaintiff was
awarded non-pecuniary damages of $24,000 as against Mc and non-pecuniary damages of as against Mac of
$8,000.
Khudabux v. McClary (2016), 2016 CarswellBC 2859, 2016 BCSC 1886, A. Saunders J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.iv.A.3
Subject Title: Remedies
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Classification Number: I.5.a.iv.A.3
Damages -- Damages in tort -- Personal injury -- Prospective pecuniary loss -- Extent of incapacity --
Permanent partial incapacity
Plaintiff, professional dance instructor, was injured in car accident -- Liability was admitted -- Plaintiff reported
headaches, pain in her arm and back, inability to handle light, soreness in her lower left side, vomiting, and
fatigue -- She was in "excruciating" pain for two years after accident -- Plaintiff testified that after accident,
restrictions on her ability to turn due to her neck problems and dizziness prevented her from rotating her neck or
"spotting" during dance turns -- Plaintiff awarded $250,000 for loss of future earning capacity -- Based on
whole of evidence, plaintiff suffered strains or sprains of her lumbosacral spine, right neck and shoulder girdle
as result of accident -- Secondary to those injuries plaintiff developed thoracic outlet syndrome (TOS),
decreased mobility of left sacroiliac joint, and left piriformis syndrome, which caused her considerable pain and
discomfort -- While some symptoms had improved, she still had problems with her neck and shoulder which
impeded her normal activities and movements -- Plaintiff testified that her retirement plans had changed due to
accident, as she could no longer teach to age 60 to 65 -- In absence of expert report to address contingencies,
there was no evidence on which court could assess damages for loss of future earning capacity on "earnings"
approach -- Using "loss of capital asset" approach, plaintiff had lost physical capacity to perform her work as
dance instructor -- She had to manage her activities carefully to avoid headaches, fatigue, or onset of
debilitating "episodes," and restrict her activities to avoid exacerbation or deterioration of her condition --
Restrictions plaintiff had imposed on amount of work she did were reasonable under circumstances, given her
physical problems and limitations, and were consistent with medical opinions and advice -- There was strong
demand for plaintiff’s services, and but for accident she would have worked more than she did -- It was also
possible that plaintiff would suffer income loss due to possibility that she would have to undergo TOS surgery
in future -- Based on all considerations, including significant contingencies, damages for loss of future earning
capacity were assessed at $250,000.
English v. Jao (2016), 2016 BCSC 1975, 2016 CarswellBC 3014, Blok J. (B.C. S.C.) [British Columbia]
REM.I.5.a.iv.D
Subject Title: Remedies
Classification Number: I.5.a.iv.D
Damages -- Damages in tort -- Personal injury -- Prospective pecuniary loss -- Diminution of earning
capacity
Plaintiff claimed damages for injuries allegedly suffered in two motor vehicle accidents, one in respect of which
defendant Mc denied liability ("2011 MVA"), and one in respect of which defendant Mac admitted liability
("2014 MVA") -- Plaintiff had previously suffered significant injuries in accident in 2006 when she was struck
by motor vehicle ("2006 MVA"), which injuries were exacerbated by another accident in 2010 ("2010 MVA")
-- In addition to physical injuries suffered in those earlier accidents, there was evidence of cognitive issues, and
psychiatric complications -- Plaintiff’s medical history was further complicated by accident in 2012 ("2012
MVA"), which resulted in significant injuries and left her entirely disabled for employment -- No award made
for loss of future earning capacity -- Even if injuries plaintiff sustained in 2011 and 2014 MVAs continued to
play significant role in her condition, her analysis did not account for full effect of negative contingency
associated with her pre-existing psychiatric and physiological conditions, and thus considerably overstated her
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loss -- Plaintiff was terminated from her employment in January 2011 and as of March, her depression still had
not stabilized, meaning that date of her return to employability was uncertain -- On expert evidence, there was
reason to believe that as of February 2011, plaintiff was at risk of major depressive episode, potentially any
time her employment was terminated -- Even without 2011 and 2014 MVAs, plaintiff’s prospects of finding
stable employment, post-2011, were significantly reduced -- She had spotty employment record before 2011 --
There was no real and substantial possibility that plaintiff would earned significantly more income but for
subject MVAs, effects of which on her employability was negligible.
Khudabux v. McClary (2016), 2016 CarswellBC 2859, 2016 BCSC 1886, A. Saunders J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.iv.D
Subject Title: Remedies
Classification Number: I.5.a.iv.D
Damages -- Damages in tort -- Personal injury -- Prospective pecuniary loss -- Diminution of earning
capacity
Plaintiff was 19-year-old male who worked full time as shunt truck driver and equipment operator -- Plaintiff’s
vehicle collided with defendants’ vehicle -- Four years after accident, plaintiff continued to suffer from constant
low back pain and intermittent numbness in his left leg -- Plaintiff commenced action against defendants for
damages for negligence, and defendants admitted liability -- Action allowed -- Plaintiff was awarded $100,000
for loss of future earning capacity -- Plaintiff established real and substantial possibility of future event leading
to income loss -- Plaintiff would continue to experience persistent low back pain and intermittent left leg
numbness, and plaintiff was at risk for recurrent injury -- Plaintiff’s pain was exacerbated by his work and
progressed over work day and through course of work week, and plaintiff had lost opportunities to perform
overtime work -- Plaintiff lacked post-secondary education that would qualify him for less physically
demanding work that would generate comparable income -- Plaintiff’s claim was best assessed on capital assets
approach -- As result of his persistent symptoms and poor prognosis, plaintiff’s competitive employability was
compromised, and fair measure of plaintiff’s loss of future earning capacity was roughly equivalent to 18
months of plaintiff’s current income.
O’Brien v. Cernovec (2016), 2016 CarswellBC 2833, 2016 BCSC 1881, Pearlman J. (B.C. S.C.) [British
Columbia]
REM.I.5.a.iv.F
Subject Title: Remedies
Classification Number: I.5.a.iv.F
Damages -- Damages in tort -- Personal injury -- Prospective pecuniary loss -- Loss of homemaking
capacity
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