What is the test for assessing past or future loss?

The assessment of past or future loss requires the court to estimate a pecuniary loss by weighing possibilities and probabilities of hypothetical events. The use of economic and statistical evidence does not turn the assessment into a calculation but can be a helpful tool in determining what is fair and reasonable in the circumstances: Dunbar v. Mendez, 2016 BCCA 211 at para. 21. See also Reilly v. Lynn, 2003 BCCA 49 at para. 101.

The threshold question is whether the plaintiff has established a real and substantial possibility that her income earning capacity has been impaired. If the plaintiff satisfies this burden, the court will then assess the quantum under this head of damages: Morgan v. Galbraith, 2013 BCCA 305 at para. 53. The defendants agree that there is a real and substantial possibility that the plaintiff will suffer some future lost income capacity.

An assessment of 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 at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.

There are multiple approaches to the assessment of future loss of income. The capital asset approach is distinct from the “earnings approach,” which involves a specific mathematical methodology, and is more appropriate when the loss is more easily measured in a pecuniary way: Westbroek v. Brizuela, 2014 BCCA 48 at para. 64; Pololos v. Cinnamon-Lopez, 2016 BCSC 81 at para. 133.