Written By: Brandon Pedersen and Kate Hunter, Summer Student
This recent Superior Court of Justice decision arises from a collision where the Plaintiff was struck by a car being driven by the Defendant while she was riding her bicycle. Following the collision, the Plaintiff suffered a Loss of Competitive Advantage and claimed damages for such as part of the lawsuit against the Defendant.
What is a Loss of Competitive Advantage
Damages awards for a Loss of Competitive Advantage are awarded on the basis that Ontario courts have recognized that the loss of earning capacity is comparable to the loss of an asset. In other words, there is recognition that when a person’s position in the labour market is compromised as a result of another’s negligence, that loss is compensable. A plaintiff can claim for the probable loss of future earning capacity or the increased likelihood of unemployment, as a result of their injuries.
While the degree of loss is considered on a case-by-case basis, some factors include whether:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- 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
- The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
In Ali v Ifran, the Plaintiff had a sparse work history, with frequent bouts of unemployment. The Plaintiff acknowledged that this was due to pre-existing difficulties with her mental health. However, she claimed that at the time of the collision, her anxiety had been improving. This was substantiated by her family physician’s clinical notes, which referenced the Plaintiff’s anxiety being in remission.
While seemingly struggling with her education prior to the collision, following the collision, the Plaintiff obtained an Honours Bachelor of Arts and Sciences, a Bachelor’s in Education, a Master’s of Education, and her qualifications to teach elementary school in Ontario. The Plaintiff testified that she experienced issues while completing her education and had required accommodations throughout her university career because of the injuries she sustained from the collision.
The Plaintiff is employed as an occasional teacher. From this position, one can seek employment as a Long-Term Occasional (“LTO”) teacher. LTO’s are paid more than occasional teachers and receive benefits. The Plaintiff testified that she interviewed for an LTO position but did not obtain it. She testified that her failure in attaining the position was due to her anxiety caused by the accident. The Plaintiff submitted no expert evidence or medical evidence to substantiate her claims of prevailing anxiety, rather her evidence was based off her own testimony, her father’s testimony, and some other pieces of evidence.
A jury trial took place in May of 2023. At the conclusion of the Plaintiff’s case, the Defendants sought to have the action dismissed by way of a motion for non-suit, or in the alternative, by way of a ruling that the questions about a loss of competitive advantage not be put to the jury. A motion for “non-suit” refers to a motion to dismiss the action on the grounds that the Plaintiff has failed to make out a case for the Defendant to respond to, whereas removing a question from the jury’s consideration results in the jury not rendering a finding on the issue.
The Defendants argued that the loss of competitive advantage claim should not be left to a jury as there was no “reasonable evidence” on which the jury could find in favour of the Plaintiff. In other words, they argued there had to be at least some evidence to support a finding by the jury and they felt the evidentiary record was so thin that no jury could come to a proper verdict. The Plaintiff argued that a loss of competitive advantage, as a future benefit, doesn’t need to be specifically quantified and can be determined in a similar fashion as to general damages.
The Tests: Motion for Non-Suit and Removing a Question from the Jury’s Consideration
The legal test to be satisfied on a motion for non-suit was described by the Court of Appeal in Calvin Forest Products v Tembec Inc., 2006 CanLII 12291(ON CA). The Court set out that on a motion for non-suit, a judge must be able to conclude that a jury could find in the plaintiff’s favour, if they believed the evidence produced at trial. In FL Receivables Trust 2002-A (Administrator of) v Cobrand Foods LTD., 2007 ONCA 425, the Court stated that if the plaintiff puts forward even some evidence on all elements of the claim, then the motion for non-suit will fail. The judge must take into account the most favourable facts from the evidence led at trial and all supporting inferences, to determine whether, if the evidence was believed, there would be a basis to establish a case.
The test for deciding whether a claim should be put to the jury was set out in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135. The Court held that there must be “reasonable evidence” to allow a question to go to a jury. This was echoed in Walker v Delic, 2001 CanLII 27973 (ON SC), where the Court held that this is a question of evidence and whether, on this evidence, a jury can reasonably make a finding.
“Some Evidence”: A Lower Threshold to Determining a Loss of Competitive Advantage
The court outlined that a loss of competitive advantage is a prospective loss, and in this way, a claim for loss of competitive advantage doesn’t require expert evidence, unlike a loss of income claim. A loss of competitive advantage claim is less amenable to expert evidence, statistics, and precise calculations, and rather requires more simply an air of reality that the figure being sought is fair and reasonable on the evidence before the court.
Determining a loss of competitive advantage, it is a question of fact, such that it is to be determined by a jury. The jury can take a more holistic and less precise method to determining a loss of competitive advantage. While there was no medical evidence in this case, there was the Plaintiff’s own testimony which was corroborated by that of her father. It is not the judge’s role to weigh the evidence but rather determine whether there is enough of an evidentiary basis that, if the evidence was believed, the jury could find a loss of competitive advantage. The Court clarified that the lack of expert evidence will not necessarily be fatal to establishing a claim for loss of competitive advantage and ultimately, the Court found that the Plaintiff met her burden of establishing that there was a real and substantial possibility of loss.