GRAY V. MACKLIN [2000] O.J. No. 4603 (S.C.) (Q.L.). CASE BRIEF

GRAY V. MACKLIN

[2000] O.J. No. 4603 (S.C.) (Q.L.).

NATURE OF THE CASE: The trial judge dealing with the appropriateness of using female or male earning tables, focused on the likelihood that wage parity would soon exist in Canada.

FACTS: The law in Canada required the following with respect to loss of future earnings: In the trilogy of cases, Andrews v. Grand and Toy (Alberta) Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Thornton v. School District 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267; and Teno v. Arnold, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, (and as refined and elaborated in Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629), the general principles governing the assessment of damages are set forth. In relation to loss of future earning capacity, the trilogy of cases directs a Court to apply the principle that an injured person is to be restored to the position he/she would have been in, had the accident not occurred, insofar as this can be done with money. The Supreme Court of Canada has also enunciated the principle, that in determining an award for lost future earning capacity, where the evidence permits, the Court should compare what the Plaintiff would have earned had he/she not been injured with what he/she will earn in his/her injured state. Further, where evidence is not available, then statistics as to average earnings, adjusted as necessary for the individual situation of the Plaintiff, may serve as the basis of the award for lost earning capacity. Finally, in recognition of the fact that the future cannot before told, an allowance must be made for the contingency that the assumptions on which the award for pecuniary loss is predicated, may prove inaccurate. In some case, this may result in a deduction, since the earnings are based on an interrupted stream, which does not reflect contingencies, such as a loss of employment and early death. Where no evidence is available, the courts have made a deduction for such matters, in the range of 20%. Where evidence is available, the deduction for contingencies may be increased, decreased, or eliminated according to the proof presented.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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