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 1 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 2 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. 3 The Canadian Abridgment eDigests - Remedies 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") 4 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 5 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] 6 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 7 The Canadian Abridgment eDigests - Remedies 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 8 The Canadian Abridgment eDigests - Remedies 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 9 The Canadian Abridgment eDigests - Remedies 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 10