Is the construction of remediable harms arising from personal injury sufficiently attentive to changing social contexts? By Elizabeth Adjin-Tettey, with Responses by Emanuela Bocancea and Freya Kodar
What factors do courts consider in determining the value of a plaintiff’s capital asset impaired by injury? Specifically, is the assessment of damages for impaired working capacity for female identified plaintiffs and plaintiffs from socially disadvantaged groups keeping pace with societal trends towards substantive equality? The differential assessment of future earning capacity for male and female plaintiffs has been a concern since the 1978 SCC personal injury trilogy(Andrews v Grand & Toy Alberta Ltd., 1978 CanLII 1; Arnold v Teno, 1978 CanLII 2; Thornton v The v Board of School Trustees of School District No. 57 (Prince George), 1978 CanLII 12).
Valuation of a plaintiff’s capital asset is by reference to the market. Absent specific evidence relating to a plaintiff’s future working capacity, courts rely on expert evidence to make predictions about that plaintiff’s likely future earning to determine the extent to which that capital asset has been impaired by the injury in question. The resulting awards reflect biases that contribute to the marginalization of women and other socially disadvantaged groups within Canadian society. Another challenge regarding the evidential gap, at least in British Columbia, relates to the limit on the number of experts and expert reports that parties can use to establish damages in motor vehicle claims (maximum of three per each party and one for fast-track claims), subject to the court’s discretion (BC Evidence Act, s. 12.1; Evidence Act Disbursements and Expert Evidence Regulation. This could further limit how plaintiffs establish their loss.
The case law is showing some progress in the assessment of damages for impaired working capacity of female plaintiffs, including attention to the narrowing of the gender wage gap and eventual convergence where supported by the evidence (e.g. Steinebach v O’Brien, 2011 BCCA 142; Crimeni v Chandra, 2015 BCCA 131; Gill v Lai, 2019 BCCA 103, at paras 54-56). However, this progress is occurring within the limits of the principle of resitutio in integrum that requires plaintiffs to be restored to the position they would have been in absent the injury and results in formal equality. While recognizing a cautionary approach to reliance on gender-based earning statistics because they may reflect historical biases, it may still be considered an accurate predictor of a plaintiff’s loss guide the determination of their damages for impaired working capacity (e.g. McColl v Sullivan, 2021 BCCA 181 at paras 41-43; Tait v Lemon, 2022 BCSC 4 at paras 330-333). This could be problematic where the plaintiff’s future potential remains unknown at the time of injury, as is often the case with young children.
The use of gendered earning statistics, including attention to the narrowing of the gender wage gap, is premised on an assumption of fixed gender binary and heteronormativity. Reliance on gender identity and binary and heteronormativity ignores gender fluidity (e.g. in MWS v ILM, the plaintiff, an infant at the time of injury, was identified as biological male but was undergoing gender reassignment as a teenager at time of trial and was considered female for purposes of determining their impaired working capacity but with a knack for traditional male occupations). It also ignores same sex partners and the fact that either partner can assume child carrying and care responsibilities, the declining prevalence of male sole earner families, increasing women-headed and/or main/higher income earner families, etc.
Societal trends demonstrating changes in traditional perceptions of women’s work and gendered roles are not adequately reflected in the assessment of damages for impaired working capacity. Where there is an evidential gap regarding a female plaintiff’s career path, the default seems to be that they would likely have pursued traditional female occupations to justify depressed awards compared to awards for male plaintiffs. Blaming gender wage gap on women’s alleged agency and lifestyle choices inherent in their original position – choosing female-dominated occupations and having children – ignores undervaluation of what is characterized typical female occupations. This reasoning appears consistent with the goal of tort damages to restore plaintiffs to the same position absent the injury. It fails to acknowledge the undervaluation of female dominated employments as an issue of gender discrimination. Rather, the (under)valuation of these jobs is perceived as neutral and objective and coincidentally the jobs that attract predominantly those who identify as female. This makes the gender wage gap seem partly a product of women’s “choice” rather than societal inequities, specifically the gendered and discriminatory valuation of work. By casting the issue in terms of women’s agency, it seems to justify women’s lower earnings as inherent in their original position. Hence, the assessment of damages for impaired working capacity must also reflect choices that plaintiffs have either made or would likely have made regarding their future work patterns consistent with the goal of tort damages to restore individual plaintiffs to their status quo ante.
Further, consistent with restitutio in integrum, women’s childbearing and care responsibilities are perceived as negatively impacting their labour force participation thereby justifying their lower overall earnings compared to men (e.g. A.T.-B v Mah, 2012 ABQB 777, E. Economic Losses and Factors; Ellis (Litigation guardian of) v Duong, 2017 BCSC 459 at para. 189). These are characterized as “lifestyle” choices inherent women’s original position absent the injury rather than as reflecting societal bias that discriminates against women. As such, reflecting that “reality” in the assessment of damages for a particular plaintiff allegedly does not perpetuate discrimination against women (e.g. MacCabe v Westlock Roman Catholic Separate School District No. 110, 2001 ABCA 257 at paras. 124–127; Steinebach v O’Brien, 2011 BCCA 142, at paras 62–65; Orregard v Clapci, 2020 BCSC 1726 at para. 236). In McColl v Sullivan, 2021 BCCA 181 at para 42, the Court acknowledged the difficulties that courts face regarding statistical bias as it raises both “evidentiary issues and issues of principle”, noting that it is not easy to discern “when the statistics reflect ‘bias’ rather than ‘lifestyle choices’”.
Applying gender-specific negative contingencies in assessing earning capacity reflects biological determinism and traditional gender roles whereby women are expected to be mothers and caregivers. This does not reflect changing gender roles in contemporary Canadian society. There is a risk of undercompensating plaintiffs when courts assume a plaintiff that identifies as female is likely to have children and withdraw from paid employment due to childbirth and care responsibilities, leaving them to adduce evidence to the contrary (e.g. Tait v Lemon, 2022 BCSC 4 at paras 334-335). There is also a growing number of families that have a wife or female partner as the sole or higher income earner, and a resulting decline in the number of families with a husband or male partner as the sole earner (See Statistics Canada, Women in Canada, “Time Use: Total Work Burden, Unpaid Work and Leisure” M. Moyser & A. Burlock (July 30, 2018)). One of the consequences of women’s increasing participation in paid employment is changes to the gendered division of household work and childcare and men’s increasing participation in child care and domestic work more generally.
Further, there is a growing number of women, whether partnered or not, that choose to remain childless (see Statistics Canada, “Families, Households and Marital Status: Key Results from the 2016 Census”; “Data Tables, 2016 Census”), a phenomenon dubbed “social infertility” (Anne Kingston, “The No-Baby Boom”). Absent specific evidence relating to a particular plaintiff, it may be unfair for a court to make assumptions about their non-participation in the labour market due to childbirth and child care, in addition to the fact that such withdrawals, should they happen, do not indicate lack of economic value. The jurisprudence does not appear to treat caregiving as having an economic value. These assumptions are problematic in contemporary Canadian society. To the extent that parental roles are not considered negative contingencies for male plaintiffs, women are left to bear the economic cost of raising children without recognition of the economic value of that activity in the assessment of personal injury damages.
Reply by Emanuela Bocancea
Professor Adjin-Tettey articulates very clearly the many ways in which damages for loss of earning capacity serve to perpetuate and entrench social inequality and gendered disadvantage in society. Her paper raises a very important issue in tort law. Is the role of tort law to merely reflect society exactly as it is – warts and all? Specifically, is it fair or reasonable for female-identifying plaintiffs to be under-compensated by comparison to their male-identifying counterparts, merely because a gender-based discrepancy in earning potential reflects an unfortunate historical social reality – one that we all agree is inherently undesirable and damaging? And what about the fact that society is changing and evolving towards greater gendered equality? Should damages not promote and reflect substantive equality? Professor Adjin-Tettey illustrates these issues well in her paper.
I agree that tort law is not “neutral” when its effects are to perpetuate discrimination and inequality. When the law is bolstering a historical status quo that has harmed and marginalized a certain group, the law becomes an active agent in perpetuating those harms – it is not an innocent bystander merely holding up a mirror to society. I hope that more judges come to understand that their decisions in this regard are never “neutral”, that their hands are not tied by historical discrimination, and that they have the power (indeed, a duty!) to shape the common law in a way that promotes substantive equality, intersectionally across groups within society (i.e. gender, ethnic identity, family status, economic status, etc.).
A few specific thoughts come to mind in response to points raised in Professor Adjin-Tettey’s paper. Firstly, when calculating the future loss of earning capacity, the present value of earning streams are quantified using contingencies that reflect anticipated, projected, future economic trends. So why not consider social trends? If it is clear – not just anecdotally, but statistically – that more women are now entering the workforce than ever before, that they work for longer and in a greater diversity of professions, that the pay gap is decreasing across professions, and that there are a growing range of policies and forces in play across sectors in society aimed at eliminating gendered discrimination and discrepancies within the labour force (etc.), then why not account for this when we gaze into that crystal ball to establish the “but for injury” future of a female plaintiff? Why not give a female plaintiff the benefit of the doubt in this regard? Why not assume the future will be better for female workers?
Here I think it is worth remembering that the burden of proof for loss of earning capacity is lower with good reason – the onus is merely to prove a real and substantial possibility, rather than the higher standard of a balance of probabilities. With that lower standard in mind, it would seem uncontroversial to argue that there is a real and substantial possibility – indeed I would say even a strong likelihood - that a 5-year-old girl today would have far greater earning opportunities available to her during the course of her projected lifespan than what was available to her mother, or her grandmother. I think there are judges who would be receptive to this kind of argument and this kind of data, evidence, and analysis when it comes to future loss of earning capacity calculations.
Secondly, as an alternative to the above – and this might just make it simpler – why not abandon gender-distinguished factors altogether among the contingencies included within loss of earning capacity calculations? Perhaps the male-based contingencies can be employed for all plaintiffs – thereby giving non-male plaintiffs the “benefit of the doubt” vis-à-vis their projected ability to work and earn on par with their male counterparts. Again, considering the context – namely, someone who is now permanently precluded from reaching their earning potential on account of injuries caused by another – it would seem to me that the law justifiably should resolve uncertainty in favour of the plaintiff, give them the benefit of the doubt. The law should reflect the real possibility that a female plaintiff could/would have earned as much as her male counterpart, and compensate her accordingly.
The final thing that I really appreciated was Professor Adjin-Tettey’s discussion about the unpaid, undervalued labour that disproportionately falls on women when it comes to child-rearing and maintaining the home. It is an unfortunate truth that women who stay home to raise their kids and take care of the household, while their partners earn money for their labour outside the home, are seen as “not participating” in the “labour force” because they are not paid for their work. When a stay-at-home mother is injured, the mother’s functional impairments which severely impact her ability to care for her children and maintain the home are not considered under “loss of earning capacity”, since those activities did not generate income for her before the injury. At best, she can hope to get some compensation for her pain and suffering under non-pecuniary damages for her diminished ability to parent. She may be able to claim the cost of some housekeeping assistance under cost of future care. But this is an artificial distinction between paid and unpaid labour – where the latter is treated as “loss of enjoyment of life” (under non-pecuniary damages) rather than a “loss of earning capacity.”
After all, we can in fact quantify the cost of childcare and home maintenance. If the injured woman is working as a full-time nanny, or running a daycare – in other words, getting paid for the labour of childcare – and her ability to continue caring for other people’s kids is diminished due to her injuries, she would have a clear loss of earning capacity claim. If the injured woman was a professional housecleaner – who cleaned the houses of other people while they are at work – that woman would get compensated for her hampered ability to continue cleaning post-injury. Why are mothers who stay home to care for their own children and who clean their own houses not compensated for their diminished capacity in these realms? Is their ability to raise their kids and clean the house not a capital asset that has been harmed? What about injured grandparents who provide free childcare for their grandkids? Should a decreased ability to perform that kind of unpaid labour not be compensated? I think it is time for the law (and society) to start seriously considering the significance of this undervalued and invisible work – and indeed, to recognize it as economically valuable labour.
In the end, what is being compensated under loss of earning capacity is not in fact lost earnings (although it is often simply treated as such), it is lost capacity – an intangible concept to which we ascribe a quantified monetary value. In situations where there are actual earnings it is easy to quantify a loss based on that. But when there isn’t a clear monetized earning stream – because the labour is unpaid, for example – I think it is fair to consider other ways to quantify that lost capacity, perhaps by reference to jobs where people do get paid for that kind of labour.
A lot more in this regard could also be said for people who spend great efforts selflessly volunteering in all kinds of ways (i.e. for organizations, or for various initiatives that provide services in society), and who cannot seek compensation for their inability to continue performing this kind of unpaid work under “loss of earning capacity” – it is merely part of their “loss of enjoyment of life”, which seriously undervalues and misrepresents the nature of such volunteer labour. Indeed, this flaw in the law of damages penalizes people who selflessly dedicate their capacity to serve society without seeking any financial gain. When that capacity is diminished by the fault of another, that constitutes a loss which, I argue, falls outside the ambit of traditional non-pecuniary damages.
And on a final note, although I’m using gendered language above to refer to “mothers” and “women” I acknowledge that there is a growing body of stay-at-home parents of other genders, and they would face the same issues. However, statistically as it stands today, childcare and daily housekeeping continues to constitute the invisible, unpaid, undervalued labour disproportionately performed by female-identifying and biologically female individuals. And thus, the extent to which the law discriminates against this kind of labour, it disproportionately affects these individuals, who already constitute a marginalized and disadvantaged group in society. --Emanuela Bocancea
Reply by Freya Kodar
Elizabeth and Emanuela highlight the difficulties courts face in determining a plaintiff’s lost earning capacity, particularly in cases involving female-identified plaintiffs and those who experience other or intersecting forms of economic and social disadvantage. Despite the fact that it should be an individualized determination, (McColl v Sullivan, 2021 BCCA 181 at para 41), their comments illustrate the challenges in accounting for societal trends and measures that advance substantive equality within this individualized assessment. They identify a number of important trends and measures that the courts have struggled to keep pace with: pay equity / wage convergence, gender fluidity, non-heteronormative households, and shifting gender roles. I would add changes in adaptive technology and other accommodation measures for persons with disabilities to this list. As Odelia Bay has noted, many of the measures that we implemented during the COVID-19 pandemic “have created more inclusive and accessible conditions for disabled workers” (“Working Crip Time” in Laverne Jacobs et al., Law and Disability in Canada: Cases & Materials at 96).
How then is a court to take all of this into account when “gaz[ing] … into the crystal ball” (McColl v. Sullivan at para 32, quoting Andrews v Grand & Toy Alberta Ltd. (SCC), 1978 CanLII 1 at 251) and settling on a lost earning capacity figure? Both reflections emphasize the importance of expert evidence and of submissions from creative and attentive counsel. As a legal educator, they reminded me of the need to continue to discuss the differential impacts of the law, and strategies for addressing these impacts in all of our classes, including our private law classes. They also reinforce the importance of work to ensure that law students, lawyers and judges reflect our diverse population.
I was intrigued by Emanuela’s question about whether we should resolve uncertainties about what a plaintiff would have earned by “abandon[ing] gender-distinguished factors altogether” and applying male-based contingencies. While this may risk creating a male standard as the default, in an inherently speculative exercise, I wonder if this is a reasonable assumption from which to begin the lost earning capacity assessment. Would it permit more attention to be paid to societal changes and the effects of substantive equality measures? I would be interested in hearing others’ thoughts on this question. --Freya Kodar