Written by: Jamie Davison, Associate, and Kate Hunter, Student-In-Law
In 2023, the Superior Court of Justice held that the Plaintiff did not suffer a loss of competitive advantage in the workplace following being injured in a motor vehicle accident. The Court of Appeal has just recently upheld this decision in Ali v Irfan, 2024 ONCA 758.
See our blog outlining the decision from the Superior Court of Justice, “Claiming a Loss of Competitive Advantage: Ali v Irfan, 2023 ONSC 3239”
Superior Court of Justice
This action arose from a collision in which the Plaintiff was injured while riding her bike after she was struck by a vehicle being driven by the Defendant. The Plaintiff sued the Defendant under a number of heads of damage but by the time the matter got to trial, the only remaining issue was whether the Plaintiff had suffered a Loss of Competitive Advantage (“LOCA”) as a result of the accident.
At trial, the Defendant brought a motion at the conclusion of the Plaintiff’s case to have the adjudication of the LOCA claim not be put to the jury on the basis that there was no “reasonable evidence” on which the jury could find for the Plaintiff. Ultimately, the court dismissed the motion, and the LOCA claim was put to the jury.
Therefore, the jury was asked to determine three questions:
- Did the accident cause or contribute to a psychological or physical condition that the Plaintiff continues to suffer from as of today?
- If the answer to question one is yes, has the Plaintiff suffered a loss of competitive advantage as a result of the accident?
- What compensation, if any, should be paid for that loss of competitive advantage claim?
The jury returned a verdict finding that while the Plaintiff had suffered some psychological or physical injuries from the accident, she had not sustained a loss of competitive advantage. The trial judge then entered a judgment in accordance with the jury verdict dated July 24, 2023. The Plaintiff appealed the decision.
Court of Appeal
On appeal, the Appellant (the Plaintiff) argued that the answers to the jury questions were irreconcilable and that the jury verdict was therefore unreasonable. The Appellant highlighted that the onus proof of a real and substantial possibility of a loss of competitive advantage is less than on a balance of probabilities. Further, she argued that the Respondent failed to call evidence to contradict the Appellant’s evidence that her ability to work was impaired by her injuries.
The Appellant sought for the Court of Appeal to substitute its own decision with that of the trial judge or to order a new trial. The Court of Appeal did not accept these submissions.
The Court of Appeal, citing Lazare v Harvey, 2008 ONCA 171, held that it is well-established that when reviewing a jury verdict, a high degree of deference will be granted and a verdict will not be set aside even if the jury could have arrived at a different determination based on the evidence.
The Court of Appeal held that there was evidence to support the jury’s determination that while the Appellant suffered some injuries, they did not result in a disadvantage to her work. It was open to the jury to accept the evidence that the Appellant had prior medical problems and to reject the evidence about how the motor vehicle accident impacted her career as a teacher. The jury was also entitled to accept the evidence of her employer that her injuries had no impact on her employment.
The Court of Appeal pointed out that the Appellant’s evidence did not go unchallenged. Credibility was an issue at trial and was an issue before the jury to be dealt with. The Appellant was thoroughly cross-examined at trial, and did not call any medical evidence or evidence from her employer to support her claim that her work trajectory had been adversely affected by the injuries she suffered as a result of the collision.
The onus was on the Appellant to demonstrate that there was a real and substantial possibility that she had suffered a disadvantage in her employment and the jury was entitled to find, on the evidence, that she did not meet her burden of proof.
The Court dismissed the appeal.
Important Take-Aways
- Standard of Review – Jury Verdicts: This decision reaffirms the that the standard of review for a jury verdict is a high bar to meet; a high degree of deference is granted.
- Proving a LOCA Claim – A Holistic Exercise: The decision is a good reminder that the onus of proof borne by the Plaintiff in proving a LOCA claim is demonstrating a real and substantial possibility that they have suffered a disadvantage in their employment. Further, while the jury did not find for the Plaintiff in this case, this judgement does not impact the reasoning of the lower court (as discussed in our previous blog) that a LOCA claim does not require expert evidence or precise calculations. Rather, the trier of fact must arrive at a fair and reasonable lump sum figure, on the basis of all of the evidence available. While precise calculations are not required, the figure must have an air of reality about it having regard to all the evidence – an arguably more holistic and less precise analysis than that of a loss of future income claim.
