Court of Appeal upholds Trial Judge’s Dismissal of Earning Capacity Claim

December 14, 2016

In reasons for judgment released this morning, the BC Court of Appeal dismissed a 24-year old plaintiff’s appeal concerning the trial judge’s dismissal of her claim for loss of future earning capacity.  The court said:

[17]        …Ms. Leong argues that the trial judge erred in rejecting her claim for loss of earning capacity. Ms. Leong submits that the trial judge erred in failing to follow the approach in Sinnott v. Boggs, 2007 BCCA 267. She argues that because she is a young person who has not yet established a career and has no settled pattern of employment, the quantification is broader and larger. She argues that there was evidence that she had ongoing symptoms that might possibly limit her ability to engage in vocations that would require lifting or prolonged use of her arms.

[19]        The trial judge gave comprehensive and thorough reasons on the issue of loss of earning capacity. The trial judge considered Ms. Leong’s age, and the fact that she had not settled into a career path, and that her claim should not be prejudiced by a lack of employment history. However, the trial judge concluded at para. 104 that the evidence did not “support a conclusion that there is a real and substantial possibility that the plaintiff is less capable overall from earning income in all kinds of employment, unable to work in jobs that were previously open to her, less marketable to employers, and less valuable as an employee due to her injuries”.

[21]        …in this case, there is no evidence or opinion from any of the medical Expertise to the effect that Ms. Leong’s conditions and symptoms reduced her earning potential. At around the trial, Ms. Leong began to look at retraining as a nurse or in a sonography program, but thought that she might have trouble lifting her arms for long periods or lifting patients. As noted, there is no medical evidence supporting this concern in terms of her ability to work.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/16/04/2016BCCA0485.htm

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