Jennifer Brun and Robert Brun, QC were successful on appeal regarding the use of gender-based statistics and assessment of the overall fairness and reasonableness of loss of capacity awards.

The plaintiff respondent, Ms. McColl, was a 25-year-old woman who had been injured in two car accidents. At the time of the accidents, she was building a career in the film and television industry. At trial, damages for loss of future earning capacity were directed to be calculated using male labour market contingencies, which had not been included in the expert evidence. The judge also directed the parties to calculate and agree to the present value of the plaintiff’s future loss on the basis of a set of assumptions and directions she provided, failing which the calculation was to be referred to the Registrar. The judge, having given no leave to return before her, left it to the parties to calculate a figure that was incorporated into the order without further submissions as to the overall fairness of the calculation.

We advanced two grounds of appeal.  First, that the trial judge erred in concluding that Ms. McColl’s award for loss of future income earning capacity should be calculated relying solely on labour market contingency tables for Canadian males; and second, in instructing the parties to calculate Ms. McColl’s loss of capacity on the basis of a list of directions and then delegating the resolution of any disagreement between the parties as to the correct calculation to a Registrar of the court.

The court found the trial judge’s reliance on the male statistics was “troublesome” and that male statistics should not be considered a default position. At para. 43, the court confirms that gender-specific statistics may incidentally align with a plaintiff’s gender but not invariably so. For example, female economic multipliers reflect a greater likelihood of leaving the workforce to care for children, so they may be appropriate for a male plaintiff who intends to be a “stay at home dad”.  Those same statistics may be inappropriate for a female plaintiff who intends to remain in the workforce without interruption. In every case, the burden is on the plaintiff to demonstrate their future losses. The legal framework to be applied with respect to the use of gender-based statistics is concisely summarized at para. 41.

It was also held the trial judge erred in failing to assess the overall fairness of the award and the court remitted the award for loss of future earning capacity for reconsideration to the trial judge in accordance with these reasons.  The court stated that armed with the present value calculation of the future loss, the parties should have been entitled to make further submissions to the judge as to the overall fairness and reasonableness of the loss of future earning capacity award taking into account all of the evidence. The court enunciated the factors that should be considered in such submissions at para. 79. Ultimately the court stated the judge’s judgment for loss of future earning capacity may approximate the present value calculation or it may be higher or lower. It is for her to decide taking into account all of the evidence and submissions from the parties.

Read the full decision McColl v Sullivan, 2021 BCCA 181