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Alberta goes beyond gender specific calculations


By Steve Schott, as published in The Lawyers Weekly

Since the passage of the Minor Injury Regulation (MIR) on Oct. 1, 2004, Alberta courts have been active in refining and clarifying its scope and application. In the Feb. 23 decision in McLean v. Parmar [2015] A.J. No. 214, Justice Kristine Eidsvik of the Court of Queen’s Bench further refines the definition of “minor injury” in relation to claims arising from chronic pain. This decision is also noteworthy for its treatment of the plaintiff’s claim for loss of earning capacity, which challenges previous approaches to calculating these claims using gender-specific statistics.

The plaintiff in this matter suffered numerous injuries as a result of a motor vehicle accident, including soft-tissue injuries as well as a number of injuries outside the scope of the MIR. In particular, the plaintiff claimed to have suffered chronic pain in relation to soft-tissue injuries which was ongoing for approximately 2 1/2 years. Although the plaintiff admitted that she had “recovered” from her injuries 2 1/2 years after the accident, the court determined that this meant she was “maximally recovered,” but was not capable of returning to her pre-accident level of health and fitness.

The court reviewed the definitions of “minor injury” and “serious impairment” set out in the MIR, and held that the plaintiff’s soft-tissue injuries were not minor injuries because they caused ongoing pain for more than six months, and were not expected to fully resolve. The plaintiff was not expected to recover her ability to return to a second job or participate in numerous sporting activities which she enjoyed prior to the accident, and her condition was not expected to improve.

In its decision, the court held that chronic pain is not to be treated as a minor injury. It also stated, however, that there are instances in which soft-tissue injuries involving chronic pain lasting more than six months will be considered a minor injury, provided the claimant has completely recovered or has a favourable prognosis for a full recovery.

Although the court’s comments indicate that soft-tissue injuries with a pain component lasting more than six months will not be considered “minor injuries,” it indicates that the ultimate determination of this issue will depend on the permanency of the injury, indicating that soft-tissue injuries that persist beyond six months that are expected to fully resolve will be subject to the capped limit.

This decision is also noteworthy for comments made by the court in relation to the plaintiff’s claim for loss of opportunity. In particular, the court’s comments concerning gender-specific employment statistics indicate that a new trend may be emerging in calculating future economic loss in Alberta.

The plaintiff primarily worked as a full-time accountant prior to the accident. She was in the process of obtaining her credentials as a Chartered General Accountant (CGA) at the time of the accident, and claimed a loss of opportunity because she was delayed in completing her CGA courses by approximately two years as a result of her accident-related injuries. She alleged she would forever be delayed in terms of experience and earnings as a result.

In considering this component of the plaintiff’s claim, the court determined that it was not appropriate to rely on financial information relating solely to female accountants. Noting that the average earning pattern of female accountants was significantly lower than their male counterparts, the court held that blending the average earnings of male and female accountants, or relying exclusively on male levels of earnings, provides a more realistic approach to determining the plaintiff’s potential future earnings.

The court also held that relying on general CGA statistics to determine the plaintiff’s average level of income was more appropriate than using records reflecting the amounts she had previously earned because she was in a position in which she earned significantly less than the average CGA, and it was unrealistic to assume that she would continue to work for one employer for the remainder of her career.

These comments are noteworthy because they indicate that an element of gender neutrality should be introduced to the economic analysis of future earnings, and that industry-specific statistics may be preferable to actual evidence of the plaintiff’s earning history. These comments are difficult to reconcile with previous decisions which support the use of gender-specific statistics and demonstrated-earnings history in calculating such awards. Considering the differing approaches used by the court in evaluating awards for loss of future earnings capacity, it is likely this issue will be before the court again in the near future.

Although the court’s comments concerning the appropriate method for calculating future loss of income leave a number of questions yet to be resolved, Justice Eidsvik’s reputation as an esteemed practitioner in the area of personal injury law prior to her appointment to the bench suggests that this decision may be influential in future actions.

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