BC Court of Appeal reduced a loss of future earning capacity award by $350,000 after a salary error skewed the numbers
A math mistake built on a rejected assumption just cost one side $350,000. The British Columbia Court of Appeal (BCCA) held in Chau v. Courchesne, 2026 BCCA 345, that a trial judge had calculated loss of future earning capacity using a salary figure she had already thrown out, and the numbers snowballed from there.
How loss of future earning capacity is calculated.
On October 29, 2017, Chantal Courchesne was a passenger in a taxi that was rear-ended in Richmond, British Columbia. She was then CEO of the Canadian Dermatology Association (CDA), earning approximately $180,000 in base salary, with a T4 showing total employment income of $200,029 in her final year at the organization.
The motor vehicle accident left her with a mild traumatic brain injury (MTBI) with lasting effects on her cognition, memory, and career.
Following a lengthy 2023 trial, the BC Supreme Court awarded Ms. Courchesne approximately $3.75 million in total damages. The breakdown is as follows:
- non-pecuniary damages: $200,000
- past loss of income: $520,000
- loss of future earning capacity: $2,900,000
- cost of future care: $106,410
- special damages: $19,987.05
The defendants appealed.
Where the trial judge’s numbers went wrong
The trial judge set the correct legal framework. Under the three-step test from Ploskon-Ciesla v. Brophy, 2022 BCCA 217, and Dornan v. Silva, 2021 BCCA 228, a court must establish that there is a real and substantial possibility of future income loss, then assess the value of that loss. No issue arose on the first two steps.
The problem was in step three. Ms. Courchesne’s calculations assumed she would have earned a base salary of $230,000 had the accident not occurred. The trial judge rejected this assumption, finding instead that $200,000 was the appropriate figure. However, she then started her damages calculation using Ms. Courchesne’s own numbers, which were built on the $230,000 figure she had just set aside.
That error compounded across the entire assessment:
- the inflated base salary fed into a net present value of $4,774,912.91
- a 30% contingency reduction was applied to that inflated figure, yielding $3,342,439.04
- a further 10% residual earning capacity reduction brought the total to $2,864,947.75, rounded to $2,900,000
Because both deductions were percentages of a figure rooted in the rejected salary assumption, they were both distorted.
The contingency reduction debate: 10% or 20%?
The court recalculated the award using the correct $200,000 base salary, arriving at a revised net present value of $3,182,453.19. It then applied a 10% general contingency reduction, drawing on Huang v. Bai, 2026 BCSC 895, where it was reasoned that 10% is appropriate where no specific contingency evidence exists. The court left the trial judge’s 10% residual earning capacity reduction in place.
The revised loss of future earning capacity award came to $2,545,962.55, rounded up to $2,550,000. As such, there was a reduction of $350,000 from the original award.
The court’s reasoning signals something worth noting in practice. When a trial judge expressly rejects a factual assumption, that rejection cannot then quietly re-enter the calculation through the base figures used. The BCCA also used this case to affirm a move away from the historically common 20% general contingency reduction from Milina v. Bartsch, 1985 CanLII 179 (BC SC), toward a more modest 10%, where the evidence does not specifically support a higher figure.
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