In what circumstances will a court take a capital asset approach?

Even where the capital asset approach is appropriate, the court should “ground itself as much as possible in factual and mathematical anchors”: Knapp v. O’Neill, 2017 YKCA 10 at paras. 17–21.

A plaintiff is not excluded from an award for loss of future earning capacity simply because she is still able to work after the accident and even where her records of employment show that her income has been steady or increased since the accident. In Willett v. Rose, 2017 BCSC 627, Justice Smith held:

Even in circumstances where employment data appear to show no reduction or even an increase in income following an injury, where a plaintiff continues to suffer to some degree from the effects of an accident which have an impact on his work, there is an impairment of earning capacity. For example, in Cheung v. MacDonald et al, 2004 BCSC 222, it was argued that the plaintiff’s income following the accident was higher than it had ever been. Mr. Justice Ehrcke said at paras. 84 and 85: