Bains v Cheema, 2022 BCCA 430.
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By: Weston McArthur (Articled Clerk)
Dilsher Cheema was injured in a rear-end motor vehicle accident that took place on January 28, 2018. Liability was not in issue, and the trial judge awarded the Plaintiff $102,062.86 in overall damages, $50,000 of which was awarded for future loss of income/diminished earning capacity.
The trial judge diverged from the accepted test for ascertaining future loss of income, explaining at paragraph 46 that “[i]n a world buffeted by technological and economic change, it is possible that long-haul driving will cease to be a viable career for [the Plaintiff] more generally”. The trial judge then went on state that if the Plaintiff had to change careers, his injuries would limit his employability in other suitable occupations. From this, the trial judge found that the Plaintiff faces a real and substantial possibility that he will suffer a future loss of income/diminished earning capacity.
Justice Finch, writing for the British Columbia Court of Appeal, found that the trial judge erred in law by bringing speculation into the test for assessing future loss of income/diminished earning capacity. Justice Finch clarified that there is a three-part test for ascertaining future loss of income/diminished earning capacity: firstly, a claimant must show that a future event could lead to a loss of income (Justice Finch gave the example of chronic pain); secondly, a claimant must show that said future event will cause financial loss; thirdly, a claimant must quantify the future financial loss. According to Justice Finch, the trial judge erred in jumping from part 1 to part 3.
Justice Finch also found that the trial judge 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” [para 48]. To claim that a future event will lead to a loss of income, the future event must be grounded in evidence – speculation is not enough. Justice Finch also addressed whether courts could take judicial notice of the possibility that technological or economic change will eradicate an industry. He said that “a court may only take judicial notice of facts that are either generally accepted or capable of immediate demonstration by resort to readily accessible sources of indisputable accuracy” [para 50]. That threshold was not met in this case.
In the end, Justice Finch upheld the Plaintiff’s award for future loss of income in the amount of $50,000, finding that the award was fair, but for not for the reasons cited by the trial judge.