What is the test for an award for loss of earning capacity?

Furthermore, Huddart J.A. provided a useful review of the principles relating to an award for loss of earning capacity in Rosvold v. Dunlop at [paragraph] 8-12, which were subsequently applied in Paller at [paragraph] 50. Those principles can be summarized as follows: 1. The plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. 2. Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider. 3. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen. 4. The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence. 5. Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry, the overall fairness and reasonableness of the award must be considered taking into account all the evidence. 6. Even if a plaintiff is able to earn the same amount of income from alternative employment, he would still be entitled to compensation for loss if occupations previously available were closed to him.

Finally, in considering the relevant factors, the case law has consistently applied the factors set out in Brown v. Golaiy, being whether: 1. the plaintiff has been rendered less capable overall from earning income from all types of employment; 2. the plaintiff is less marketable or attractive as an employee to potential employers; 3. the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and, 4. the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.