In a personal injury claim, a plaintiff may seek damages from the negligent party to compensate their losses under several heads of damage, such as general damages for pain and suffering, cost of future care and diminished earning capacity or loss of future income. As part of the claim and calculation of damages for loss of future income, factors such as a loss of competitive advantage can be considered to determine whether that person’s position in the labour market will be compromised due to the defendant’s negligence.
In a recent decision, the Ontario Superior Court of Justice addressed a plaintiff’s claim for loss of competitive advantage and explained the threshold plaintiffs must meet when establishing their claim for this prospective loss.
Plaintiff struck by car while riding bicycle
In the case of Ali v. Irfan, the 29-year-old plaintiff was riding her bike along a road in Mississauga on the evening of May 20, 2015, when she was struck by a vehicle driven by the defendant driver. The car was owned by the defendant driver’s father. While the parties resolved the majority of issues before trial, it remained to be determined whether the plaintiff suffered a loss of competitive advantage due to the accident.
A jury trial started on May 23, 2023, at which the plaintiff, her father, and a supervisor testified. Following the conclusion of the plaintiff’s case, the defendants brought a non-suit motion and also argued that there was no “reasonable evidence” to support a loss of competitive advantage claim. Essentially, the defendants argued there was insufficient evidence on the issue such that a jury could not reach a proper verdict.
A successful non-suit motion dismisses an action because the plaintiff has failed to present a case to which the defendant can respond. This is different than removing a question from the jury’s consideration, as the jury would simply not decide on the issue.
Before accident, plaintiff suffered from anxiety
Before the accident, the plaintiff had attended both Ryerson University and George Brown College. However, she had been placed on academic probation and was unsuccessful in completing either program. She had worked in the automotive industry, including employment at a family business that sold used cars. Prior to that, she worked at the Royal Bank of Canada from December 2022 to January 2023.
At the time of the accident, the plaintiff was not attending school, nor was she employed, but she was receiving treatment for anxiety and stress, as evidenced by numerous medical notes. This documentation suggested that the plaintiff had experienced these issues years prior to the accident. However, at trial, she testified that her anxiety had improved immediately before the accident. However, during cross-examination, the plaintiff acknowledged that in her evidence on discovery, she stated that she did not work for her father’s company between 2014 and 2015 because she was not mentally stable.
Plaintiff required accommodations during her university career due to injuries
After the accident, the plaintiff was conscious and could stand up on her own at the scene. After testing, she was released from the hospital and attended medical follow-ups with her family doctor. Following the accident, the plaintiff claimed that she sustained persisting injuries to her shoulder and back and had trouble with anxiety. However, no medical evidence was presented to the Court verifying her ongoing back and shoulder problems. The Court also confirmed that the plaintiff’s medical records contradicted her evidence regarding anxiety, as her family doctor records noted that her anxiety was in remission.
In the years since the accident, the plaintiff enrolled in post-secondary education and obtained an Honours Bachelor of Arts and Sciences and a Masters in Education. The plaintiff testified that throughout the completion of her studies, she required accommodations due to her accident-related injuries.
Claim that accident-related anxiety impacted promotion of the plaintiff’s employment
After completing her studies, the plaintiff was employed as a lunchroom supervisor and would occasionally work as a teaching assistant before securing employment as an occasional teacher. From this role, she could seek employment as a long-term occasional teacher, which would provide benefits and higher pay. However, the plaintiff claimed that she did not obtain such a position following her interview due to her accident-related anxiety. To substantiate this claim, the plaintiff provided her own testimony, in addition to testimony from her father and additional evidence, but did not provide expert or medical evidence.
The plaintiff also testified that she had experienced social isolation since the accident, resulting from her anxiety.
Legal tests applicable to defendants’ motions
The Court considered the defendants’ motion for non-suit and turned to the case of Calvin Forest Products v. Tembec, which held that a judge must be able to conclude that a jury could not find in favour of the plaintiff if they believed the evidence presented during the trial. The Court also referred to FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods LTD., which stated that a motion for non-suit will fail if the plaintiff presents at least some evidence on all elements of the claim.
When deciding whether a question should be removed from the jury’s consideration, the Court referenced the legal test set out in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), which requires that “reasonable evidence” be presented for a question to go to the jury.
Loss of competitive advantage involves non-precise calculations
The Court explained that a loss of competitive advantage is a prospective loss, such that a claim does not require support from expert evidence like a claim for a calculable loss of income claim would. Instead, a trier of fact may consider an award for loss of competitive advantage using a holistic and less precise approach.
As such, the Court highlighted that in support of this claim, the plaintiff’s evidence of ongoing psychological problems since her father corroborated the accident. Further, she provided evidence concerning the pay differences, and a principal from her school district testified to a long-term occasional teacher’s entitlement to benefits.
Court dismisses defendants’ motions for non-suit
The Court acknowledged that while the plaintiff’s evidence was “very thin”, it was not the Court’s role to weigh the evidence at this stage of the proceedings. Instead, the Court was only required to determine whether there was sufficient evidence upon which a jury could find in favour of the plaintiff.
Ultimately, the Court found sufficient evidence could be presented to the jury upon which they could make a finding for the plaintiff. As a result, the defendants’ motions for non-suit were dismissed.
Contact the Personal Injury Lawyers at Campbell Litigation for Trusted Advice and Representation
The skilled personal injury team at Campbell Litigation in Waterloo brings extensive knowledge and resources to help guide you through the personal injury claim process. Compensation claims for personal injury can be lengthy and complex, which is why our team provides clients with initial assessments regarding the prospects of their potential claims. In particular, if you are asserting a claim for compensation due to loss of competitive advantage, it is essential to work with an experienced injury lawyer to ensure that appropriate evidence is provided. To schedule a consultation with one of our personal injury lawyers, contact us by phone at 519-886-1204 or reach out to us online.
