Compendium of Damages Awarded in Personal Injury Actions across Ontario: A Vocational Review

The Compendium of Damages Awarded in Personal Injury Actions across Ontario (the Compendium) is a compilation of personal injury awards before the courts of Ontario between the dates of January 1999 and October 2020. It was authored by the Hon. James B. Chadwick, Q.C. and Phillip Byun, then a common law student at the University of Ottawa. Twenty-five other individuals were also acknowledged for further contributions in its creation. Cases are arranged by injury type, for example, head, wrist, etc. and list plaintiff, defendant, year, citation, judge, sex, age, nonpecuniary general damages, other damages and comments. As an exercise in learning and personal interest I decided to go through each case in which the opinion of a vocational specialist might be of use. Although the methodology and findings are preliminary at best, some interesting insights were found about the utility of vocational opinion in this body of judicial decisions. This blog describes the methodology, caveats, findings, lessons learned and a few recommendations for next steps.

 Methodology

Each listed case was reviewed for its potential to hold an opinion from a vocational expert. At first, any case with an award impacting earning capacity was reviewed. However, an award for past loss of income proved of little potential and so examinations of cases only holding this award as an income loss were excluded. Continuing forward, cases awarding future loss of income, loss of competitive advantage and future loss of business income were examined. There were some cases where damages were calculated but not awarded. These were also reviewed as per the standards described. The Canadian Legal Information Institute (CanLII) was the database I used to review decisions.

Findings were then split between decisions where a vocational expert was identified, where no vocational expert was identified, as well as a category labelled as “unknown”. The pertinent awards were then tracked and a cursory statistical analysis was done to compare the categories.

Caveats

This analysis was done out of a personal and professional interest in the subject and has several limitations from the perspective of purely objective research. The most important of which is that I did this by myself in my free time. I work as a vocational evaluator and as a result I can’t say with certainty that my findings are completely unbiased.

It’s also the case that CanLII does not contain every decision in the Compendium. Often I found the most recent decision in a case, such as the decision from the appellate court, was in CanLII, but prior decisions such as the trial decision were not. This prevented a review and any identification of a potential vocational expert in the case as appellate decisions focus on the reason for appeal. Also, many cases involving harm to children, and in particular sexual assault, are not contained in the database. Finally, some cases were not on CanLII for whatever reason. That means my review can’t be considered comprehensive.

It’s also important to consider that this is a compendium of awards before the courts. The Compendium does not contain awards and other adjudicative venues in Ontario such as the License Appeal Tribunal or the WSIB Appeals Tribunal or any mediated agreement. Once again this prevents a full examination of the value of vocational opinion as they can also occur in those venues, not to mention the majority of cases in which a settlement occurs before any adjudicative activity is completed. Lastly, the Compendium is a compendium of awards not a compendium of excellence in defence litigation. The effect of vocational opinion from the perspective of defence may not be fully contained in the Compendium itself.

It quickly became apparent that judges write their decisions according to their own style, and this might not include mention of experts who appeared in the case. In a couple of cases that I found particularly interesting I followed up with counsel and asked them if a vocational expert was used. In one case that proved true and in another it did not. This prevents accessing all impacts of vocational opinion in court awards. This is not a criticism of any judge or any decision but rather an identification of how my interest in this matter is limited in its findings.

The Compendium is organized by type of injury. This results in one case being recorded in multiple places. I don’t mind telling you that it was a relief to discover, because the Compendium contained approximately 3,177 entries! However, this was reduced to 174 cases that were reviewed.

Lessons Learned

This is a subjective section of the blog since the only person who learned anything by doing this is me. However, in passing this information along it may be helpful to other readers and that’s why it’s included. One of the early impacts was understanding the standard by which the potential loss of future income or competitive advantage was viewed as meaningful by the court. That standard appeared to be “a real and substantial risk” standard called the substantial possibilities test. This is a lower standard than balance of probabilities. My take-away was that the substantial possibilities test was in part an access issue for persons with disabilities as it made the potential to be heard more likely given its lower bar of substantiation. As access is a lifelong concern for persons who are disabled, it was reinforcing to see a process that had a type of built in accommodation. Particularly an institution as important as the legal system.

Weighed against loss of future earnings estimates often are contingencies. Contingencies are potential future events that would have the effect of either increasing or decreasing a loss of future income. Most typically the impact was to decrease, up to as much as 20%, the future income loss estimate. Examples for contingencies include the potential for future unemployment, and antithetically enough, the potential for future employment. Both of these events if they were to happen would either reduce an estimate of future lost income or mediate an estimate of future lost income. Of course, it is also true that a decision can be rendered in favour of defence.

Vocational experts were well regarded by the court. One of the things that I became accustomed to was reading about the credibility judges attached to the opinions of vocational experts called to testify. In only one of the 174 cases reviewed was a vocational opinion viewed as unhelpful or potentially biased. In more than one case the specifics of the vocational expert’s testing was copied into the written decision. In more than one case the written decision referred to the vocational expert’s testimony as credible, compelling or useful. That was heartening and supports the continued use of vocational opinion by the court.

Loss of competitive advantage did not appear to be entirely well-defined in decisions. However, most typically these were awards for an expected loss of future income in an individual’s own occupation or occupational trajectory. Often it was the case that the individual could continue to work in their own job, but less efficiently, which necessarily implied lesser performance and lesser compensation as a result. There were very few such awards, 5 in total over a 20 year span.

Interestingly, precedent-setting cases or cases of influence typically did not have a vocational expert. For example, in 2008 the case of St. Prix-Alexander v. Home Depot of Canada Inc., 2008 CanLII 115 resulted in a $400,000 award for loss of competitive advantage. There was no reference to any vocational opinion being offered to the court in the decision. Similarly, in follow-up contact around a case where awards were over $10 million as the result of a motor vehicle accident including substantial six-figure estimate for loss of future income, no vocational expert was retained.

However, with that said, awards for loss of future income and loss of competitive advantage were significantly greater when vocational opinion was retained. Because my review is subject to a number of failings of methodology, I’m reluctant to give specific numerical results. I am comfortable saying that I could confirm 44 cases in which a vocational expert was used, about half as often as when a vocational expert was deemed not to have been used. In the cases where a vocational expert was used the awards for loss of future income more than doubled similar awards absent vocational opinion.

It became clear that the primary lesson to learn from this review is that lawyers are smart. It can be easy to look at any one case from one perspective and have a question about why a particular lawyer may or may not have done one particular thing. Such is the luxury of modestly informed hindsight given the latitude of free personal time. However, the results of this review show that lawyers use vocational experts well. It is tempting to say vocational expert opinion adds pecuniary measure to an award. It is equally true to assert lawyers know when such an opinion might be sought.

Greater Use of Vocational Experts?

It shouldn’t surprise you that I think the answer is yes. It seemed to me that vocational experts in Ontario were not often used to estimate loss of future income in cases of harm to children. What happened most typically is that the expected level of education, were the child uninjured, was used as the basis of lost future income estimation. A vocational expert is able to enlighten the court on aspects of vocational trajectory as well as educational achievement not only in terms of what may be lost but also in terms of what may remain. This capacity for estimation of vocational trajectory and educational achievement is something that may not be shared with other disciplines such as economists or forensic accountants absent the possibility they too have specific training in vocational estimation of course. I would suggest using both professional scopes in such cases, particularly when employment is expected in a child’s future.

The second area that might offer potential value is in a greater exploration of loss of competitive advantage. Many people return to their own occupations after injury. However, if they continue to experience symptoms affecting job function they may be experiencing a competitive disadvantage and incur a real and substantial risk for future loss of income. Of the 174 cases reviewed, 5 contained an award for loss of competitive advantage. It’s no secret that most people who leave work due to an injury return to their jobs. The degree to which they remain as efficient as they were pre-injury is a more open question and one that is recognised by the courts. However, it may be less than fully explored.

The issue of contingency was a good lesson learned. I mentioned this above where a reduction of up to 20% of an award for loss future income may be applied as a contingency against future events which might expect to lessen or mediate such an estimate. The discovery of this as part of a decision was both surprising and reinforcing as a nod to wisdom. I also thought a vocational assessor could make such an estimate pecuniary.

Recommendations:

This analysis of the Compendium from the perspective of vocational opinions’ contribution to awards could be improved in several ways:

(1)   Multiple Expert Raters – I was the only rater and that made any of my bias more likely to influence findings. Multiple qualified people reviewing the same information would likely act as a control against any bias that may be inherent in my analysis.

(2)   Regression Analysis – in many cases multiple experts are retained and it stands to reason that they all make a contribution to the decision rendered by the court. One way of potentially meting out the degree of influence or affect each profession has on awards over time may be this statistical analysis.

(3)   Follow-up on Unassigned Cases – approximately 40 cases in this review were assigned as unknown whether or not a vocational expert was retained. Certainly it was one or the other and determining which is expected to result in greater clarity. So if you’re reading this blog and you might wonder if a case in which you were involved was recorded accurately by me please feel free to send me a message and inquire.

 I’m happy to discuss this topic with anyone who has an interest. Please feel free to contact me through this website at the Contact Us page.