Loss of Future Earning Capacity

In Boucher, the plaintiff cross-appealed by submitting that the damage claim for the tort of intentional infliction of mental suffering should be increased to reflect a loss of future earning power. This was based on the argument that the plaintiff should be restored to her position had the tortious act not occurred. Hence, it would follow, as argued, that given that she intended to work until retirement and in the absence of direct testimony from the company that it had intended to terminate her employment, such a claim should follow.

The principle was accepted that such a claim may be made, such as in the case of a personal injury claim, where the plaintiff’s future earning capacity has been impaired. In an employment context, this claim may be possible where the functional ability of the plaintiff to work in the future has been adversely impacted by the wrongdoing.

In the immediate case, the plaintiff’s ability to work was not adversely affected and indeed the Court of Appeal noted that she had recovered in less than two months. There was hence, no loss of earning capacity.

Further, Boucher was paid the severance sum due under her employment contract. The court also noted that she did not have an employment guarantee until age 65. Wal-Mart remained able to terminate at any time on the set notice sum. Laskin, J.A. noted:

Boucher was entitled to be put in the position she would have been in if the contract had been performed: employment subject to dismissal in accordance with the terms of her contract. In her cross-appeal, however, she seeks to be put in a better position: lifetime employment. That she was not entitled to.

Such an argument of a claim for future lost income was made in a 2008 case, one which also was ultimately determined by the Ontario Court of Appeal which dismissed the tort claims. ¹ The plaintiff had sued on the basis of the tort of the intentional infliction of mental distress, one which was made out on the merits at trial. The plaintiff also sued by a tort referenced as “negligent infliction of mental distress”. She was successful in this claim and the intentional tort at trial. The trial court did address the issue of future income loss, having found for the plaintiff in this claim. The Court of Appeal set aside that award as it determined that there was no such claim in law as negligent infliction of emotional harm and also found insufficient evidence to support the direct tort.

The trial judge made a finding that the plaintiff was suffering from “disabling symptoms of depression and anxiety that have not noticeably ameliorated over time.  It is uncertain if and when she will ever be in a position to return to gainful employment.”

All this being said, the trial court’s assessment of such a claim may be of interest, even though obiter. The plaintiff claimed a past lost income date through to the date of trial in the sum of $284,000 and a future lost income claim to the date of retirement of $216,000. The total of these two was reduced by 10% to represent a contingent risk of various possibilities, resulting in an award of $450,000 for both aspects of this claim. ²

As noted, the Court of Appeal set aside the liability finding. There was no review made of the concept of the lost income award. ³

In 2013, a case in Alberta came before the arbitrator appointed under the terms of the collective agreement. The parties had agreed that the arbitrator may consider common law, human rights and arbitral jurisprudence to fashion the remedy. ⁴ The arbitrator found that the grievor sustained permanent psychiatric injuries which may have prevented her from working at any time in the future. A future income loss was found to be $512,000, less a 10% contingent and 2.5% present day valuation discounts.

In a 2006 decision, the Supreme Court of B.C. found that the plaintiff suffered from a serious medical condition caused by the employer’s conduct which made it very unlikely that she would be re-employed. An award was made of $600,000 for a future income loss. ⁵ There was a “significant negative contingency” imposed to the full estimated future loss due to personal factors, which were not defined. The case was brought on the tort of negligent infliction of nervous shock which the Ontario Court of Appeal stated did exist in law.

Similarly, a 1993 case in Federal Court, based on a tort claim allowed $20,000 for a future income loss in a case based on the intentional infliction of mental suffering. ⁶

A like award was made in a 2011 Ontario case ⁷ The sum of $75,000 was awarded for the loss of future income plus future medical and therapy expenses.

The amount of $300,000 was awarded for such future lost income in a further Ontario case in 2012. ⁸

In each of the cases in which an award of future lost income was made, there was evidence of a medical inability to work, caused by the tortious conduct. As note above, this was not the finding in Boucher, in which this claim failed.

Claims made for a past income loss, based in tort, are reviewed here.