Claiming Economic Loss for Lost Opportunity
Author(s): Stacey L. Stevens*
June 13, 2017
In Tierney, Arbitrator Robinson was asked to consider whether Jocelyne Wilson met the definition of incurred pursuant to subsection 3(7)(e)(iii)B of the SABS by accepting a co-op position that paid less than one she believed she may have gotten but for the collision. If so, Mrs. Wilson was entitled to be paid $155,000 in attendant care benefits.
On March 17, 2013, Mrs. Wilson’s three children were seriously injured in a car accident. One of her three children was deemed catastrophic. At the time of the collision, Mrs. Wilson was enrolled in a 1-year training course to become a medical records administrator. As a condition of graduating from the program, Mrs. Wilson was required to complete a co-operative placement. Based on her research, completed prior to enrolling in this program, Mrs. Wilson concluded that (1) there was a demand for medical records administrators, (2) co-operative placements existed in hospitals, (3) the College had a high success rate in placing its students and (4) salary expectations exceeded $20 per hour.
Following the car accident, Mrs. Wilson provided 24/7 attendant care to her 3 children. With time, their needs decreased and Mrs. Wilson was able to complete her program without a negative impact on her academic record. However, when it came time to start her co-op placement, Mrs. Wilson testified that she was compelled to take a lesser paying position with a local doctor in order to be close to her children’s school. In addition, Mrs. Wilson testified that she was also forced to return to work as she was under significant pressure from OSAP to begin repayment of her student loan.
Counsel for North Waterloo argued that Mrs. Wilson did not begin to incur an economic loss until after she returned to the workforce. There were suggestions that insufficient evidence was produced to establish employment as a medical records administrator was actually available in her area at the relevant time. Further counsel argued that the best employment available to Mrs. Wilson was the job she held in 2012 and that she had ultimately returned to. Arbitrator Robinson disagreed.
Arbitrator Robinson relied on the previous decisions in Henry v. Gore and Simser v Aviva to rule in favour of Mrs. Wilson. In Henry, the Ontario Court of Appeal accepted that the definition of incurred was met when Mrs. Henry gave up full-time employment to provide 24/7 care for her son. Of particular importance is the Court’s unwillingness to create a hard and fast definition for incurred.
In Simser, the Divisional Court recognized that the phrase “economic loss” included an opportunity cost. In particular, the Court stated:
“If the broad definition advanced by the applicant’s expert were accepted, namely that any loss of time equals an economic loss, then the distinction between professional and lay service providers contemplated by s. 3(7)(e)(iii)(A) and (B) would be redundant. Nor does the definition of “economic loss” as requiring a financial or pecuniary sacrifice eliminate all opportunity costs. For example, a student might sustain an economic loss where she defers graduation in order to provide attendant care, resulting in postponement of paid employment. Of course, this type of economic loss would need to be established by a proper evidentiary foundation.”
Taken together, Arbitrator Robinson concluded that Mrs. Wilson was in a materially worse economic position than she was before she began her College program and that this was an economic loss consistent with the principles enunciated in these decisions.
This is a very interesting decision. It is important to keep in mind that Mrs. Wilson did not have a co-op placement offer at the time of the collision and would not have been required to find one until she completed her program. Further, she ultimately returned to a job she was working at in 2012. Arguably, Mrs. Wilson had returned to her pre-collision economic status and incurred minimal losses.
Instead, Arbitrator Robinson further solidified the lost opportunity argument established in Simser and incorporated extraneous motivating the fact that Mrs. Wilson accepted this lower paying job, in part, due to the pressure of having to meet her financial responsibilities.
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