Ruling says judge did not set standard higher than required for loss of future earning capacity
In a negligence claim arising from a motor vehicle collision in Kelowna, the British Columbia Court of Appeal affirmed a judge’s denial of the injured party’s claim for $312,000 in damages for loss of future earning capacity.
On 12 August 2017, a vehicle struck the rear of the vehicle where the appellant in Travis v. Johnston, 2026 BCCA 238, was a passenger. At that time, he was wearing a seatbelt. The collision did not lead to his loss of consciousness or hospitalization.
However, due to the collision, the appellant experienced mild and manageable health issues, specifically monthly headaches and chronic neck and back pain. He filed an action for damages based on negligence.
At the time of trial, the appellant had an information technology career with relative stability and an upward trajectory. Since the respondents admitted liability and causation, the trial focused solely on the quantum of the appellant’s damages.
The appellant requested damages of $140,000 for non‑pecuniary loss, $2,400 for past loss of earnings, $312,000 for loss of future earning capacity, $798 for special expenses, and $5,000 for future care costs.
In an order dated July 2, 2025, a trial judge of the Supreme Court of British Columbia awarded $60,000 for non‑pecuniary damages, $2,400 for past lost earnings, and $798 for special expenses. She denied the appellant’s claims for loss of future earning capacity and future care costs.
The judge determined that the appellant’s loss of future earnings claim failed at the first two stages of the three‑step analysis in Rab v. Prescott, 2021 BCCA 345, as the evidence did not disclose a real and substantial possibility of a future event that could lead to a loss of earning capacity.
The judge acknowledged that the appellant would keep experiencing some limitations in his ability to perform computer work in a static position for more than one hour at a time, owing to his injuries.
However, the judge decided that the appellant could effectively manage such limitations with non-onerous accommodations.
In his appeal against the damages award, the appellant alleged that the judge committed a legal error in assessing his loss of future earnings claim by requiring him to establish “certainty of loss” instead of a “real and substantial possibility” of a future event resulting in lost earnings.
The appellant argued that the judge wrongly limited her analysis to present certainties, failed to weigh future possibilities, and set a higher standard than the law required for loss of future earning capacity.
The appellant asserted that the judge lost sight of the relevant standard or failed to apply it properly when reasoning that:
- No evidence indicated any plan for the appellant’s employer that would require him to work at a location other than his home office
- Minimal evidence showed any lost income as of the trial date, and no evidence demonstrated that the appellant’s injuries would affect his retirement plans
- Even if the appellant had a reduced ability to manage age‑related changes to limitations on his ability to do computer work, this would unlikely end his working life
Denied claim affirmed
The Court of Appeal for British Columbia dismissed the appeal.
The appeal court saw nothing suggesting that the trial judge misstated or misunderstood the law regarding the relevant standard of proof. The appeal court did not find the appellant’s argument persuasive for three reasons.
First, the appeal court ruled that the judge’s analysis considered numerous aspects of the evidence apart from the three points identified in the appellant’s argument.
Second, the appeal court held that the judge duly considered the possible future events put forward by the appellant rather than restricting her analysis to “present certainties.”
Third, the appeal court noted that the appellant alleged that the judge reached a legally erroneous or unjustifiable conclusion, which equated to an argument that the judge erroneously decided whether the evidence, including the “future possibilities” suggested by the appellant, met the relevant legal standard of a real and substantial possibility giving rise to a potential pecuniary loss.
The appeal court explained that the appellant raised a case‑specific question of mixed fact and law regarding the determination of damages, reviewable on the standard of palpable and overriding error. The appeal court saw no such error in this case.
