What is the burden of proof for an assessment of past and future earning capacity?

British Columbia, Canada


The following excerpt is from O’Brien v. Cernovec, 2016 BCSC 1881 (CanLII):

The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati, at para. 27.

On a claim for past loss of earning capacity, the plaintiff must first establish on a balance of probabilities that the injuries he sustained caused an impairment of his earning capacity. Then, in determining what might have happened in the past to enable the plaintiff to earn income, but for the accident, the court must decide if the event was a real and substantial possibility, and then determine the likelihood of it occurring: Smith v. Knudsen, 2004 BCCA 613 at paras. 28, 29, 36 and 37. Loss of Straight Time Work

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