Autumn 1996 issue of the Expert Witness newsletter (volume 1, issue 3)

Contents:

  • Damage Calculations in Fatal Accident Actions After Galand
    • by Christopher Bruce
    • This article is Christopher Bruce’s second of two reports on the ramifications of the Alberta Court of Appeal decision in Galand Estate v. Stewart. The article in this issue considers the implications of Galand for the calculation of damages.
  • Employment of Persons With Disabilities: The Employment Equity Act 1986 to 1996
    • by Gordon C.M. Wallace and Gail M. Currie
    • In this article, Gordon Wallace and Gail Currie of The Vocational Consulting Group show that the federal government’s employment equity program, introduced in Bill C62 (January 1985), has not reduced the impact of personal injury accidents on plaintiffs’ earning capacity.
  • Selecting the Discount Rate
    • by Christopher Bruce
    • This article completes a two-part series on the discount rate. In this issue, we review a number of different methods for estimating the future discount rate, explain why we prefer one of them over the others, and apply that method to the selection of a 4.25 percent rate.

Selecting the Discount Rate

by Christopher Bruce

This article first appeared in the autumn 1996 issue of the Expert Witness.

The discount rate is the interest rate at which it is assumed plaintiffs will invest their awards in order to replace their future streams of losses. As was explained in the first issue of this newsletter, it is the “real” rate of interest – or observed rate of interest net of the expected rate of inflation – which most financial experts prefer to use for this purpose.

In six provinces, the discount rate has been set by regulation. In the remaining four, including Alberta, however, the expert must provide evidence concerning the forecasted value of the real interest/discount rate. The purpose of this article will be to review a number of techniques for obtaining such a forecast and to provide an estimate of the real rate of interest based on the most reliable of these techniques.

The article will be divided into three sections. In the first, I list the rates in the six provinces which mandate a discount rate. In the second section, I summarise three methods which have been used to forecast real interest (discount) rates and identify the strengths and weaknesses of each of those methods. Finally, I select one method and use it to select a discount rate for use in Alberta.

Mandated Discount Rates

Mandated discounted rates in Canada
Province Discount Rate
British Columbia 3.5% (cost of care)
2.5% (loss of income)
Saskatchewan 3.0%
Manitoba 3.0%
Ontario 2.5%
New Brunswick 2.5%
Nova Scotia 2.5%
Prince Edward Island 2.5%

The discount rates shown in the previous table have been mandated in Canada.

Three Methods for Determining Discount Rates

1. The historical approach: The approach which, implicitly, has been favoured by those provinces which have mandated their discount rates is to assume that the average rate which has been observed in the past will continue into the future. Typically, those who use this approach rely on the real interest rates which have been reported over the entire post-World War II period. What analysis of these rates indicates is that real rates were fairly stable over the period 1950-1970, at approximately 3 percent. During the oil crisis, of the early 1970s, real interest rates fell, sometimes becoming negative. Towards the end of that decade, however, they began to rise again and it appeared that they would return to their historical level. But the rise continued beyond 3 percent and since 1983 real interest rates have consistently remained above that level. Indeed, real interest rates have remained above 4 percent for so long that it is now difficult to justify the use of a rate lower than that. At the very least, any expert who attempted to rely on the historical 3 percent average to forecast future rates of interest would have to explain why the 1980s and 1990s were such an anomaly.

2. Forecasting agencies: There is a small number of consulting firms in Canada which provide forecasts of such economic variables as GNP, the unemployment rate, and inflation. They will also forecast other variables, including the real rate of interest. Extreme caution must be used when employing these firms’ long-term forecasts, however. First, the mathematical models which they employ were built specifically to make short- term forecasts. Second, long-term forecasts cannot be made without imposing assumptions about many factors which are outside the mathematical models developed by these agencies, such as foreign interest rates, exchange rates, and government monetary and fiscal policy. Finally, private forecasters have little incentive to produce accurate long-term forecasts. A consulting firm’s reputation will not hinge in any way on the accuracy of its current forecasts concerning, say, the level of unemployment in 2020. The forecasts which customers use to evaluate the agencies’ accuracy are those which have been made into the near future, not the distant future. Hence, it is forecasts of one or two years on which consulting firms concentrate their resources. The real rate of interest, on the other hand, must commonly be forecast twenty or thirty years into the future.

3. Market rates: The third source of information concerning future real rates of interest is the money market. When an investment firm which believes that inflation will average 2 percent per year purchases 20 year bonds paying 6 percent, it is revealing that it expects the real rate of interest will average 4 percent over those 20 years. (The real rate of interest is the 6 percent observed, or “nominal,” rate of interest net of the 2 percent inflation.) Thus, if we knew the rate of inflation which investors were forecasting, that forecast could be used to deflate the nominal rates of interest observed in the market in order to obtain the implicit, underlying real rates. At the moment, such forecasts can be obtained with some accuracy. Not only do surveys of investors conclude that there is considerable agreement among them with respect to their forecasts of inflation – generally between 2 and 3 percent – but we know that the government is strongly committed to maintaining a long-run inflation rate below 3 percent. Thus, we can be confident that investors predict real rates of interest which are no less than the observed, nominal rates less 3 percent. (For information concerning the long-run expected rate of inflation, see Bank of Canada, Monetary Policy Report, May 1996.)

Alternatively, the Canadian government has for some time issued bonds which are denominated in terms of real interest rates, (real rate of interest bonds, or RRBs). By observing the rates of return at which these bonds sell, the real rate of interest which investors believe will prevail over the future can easily be determined. There are two drawbacks to the use of market interest rates to forecast future real rates of interest. First, the rate which is obtained from this method has not been stable, but has generally fluctuated between 4 and 6 percent since 1983. Hence, no definitive conclusion can be drawn. Second, as very few RRBs have been issued, the rates of return which they have obtained may not accurately reflect the rates in the market as a whole.

Forecasting the Discount Rate

Of the three techniques for forecasting real interest rates discussed in the previous section, the least satisfactory is the first one, based on historical rates. As those rates have varied so widely since the early 1970s, they convey little reliable information concerning the future. Of the remaining two, most economists prefer the market-based technique. A simple analogy will explain why.

Imagine that you wished to determine the average price which potential purchasers were willing to pay for twenty-year old, three bedroom bungalows in Edmonton. One approach would be to conduct a telephone survey of Edmontonians, asking them what they would be willing to pay for such homes. A second approach would be to observe the actual prices at which such homes sold in Edmonton. Clearly, the second approach is preferable. Why? Because rather than asking individuals how they think they will behave in some hypothetical situation, it observes how individuals actually behave when they have to commit large sums of money to their decisions.

Similarly, economists who are asked to forecast long-term interest rates recognise that little is at stake should those forecasts be in error. Whereas those who are involved in purchasing long-term bonds recognise that the smallest error can result in losses of tens of thousands, even millions of dollars. For this reason, Economica prefers to rely on the interest rates observed in the money market, rather than on surveys of economic consultants, to determine the long-run discount rate.

The following table summarises money market estimates of the long-run real rate of interest for three series: the rate of return on trust company five year guaranteed investment certificates, the interest rate on Government of Canada 10-year bonds, and the rate of return on RRBs. In each case, the figure represents the average of the rates reported in the second quarter (April-June) of 1996, net of the forecast rate of inflation. Two alternative real rates have been calculated for the GICs and the 10-year bonds: the first uses a forecasted rate of inflation of 2 percent and the second a rate of 3 percent. (The figure for RRBs is the same in both scenarios as the observed, market rate is already net of the rate of inflation.)

Real Rates of Return on Selected Long-term Investments: Canada 1996
Investment 2% Rate of Inflation 3% Rate of Inflation
Trust Company 5-year GICs 4.5% 3.5%
Government of Canada 10-year bonds 5.6 4.6
Real rate of return bonds 4.7 4.7

The figures in this table suggest that investors currently anticipate that the real rate of interest will fall somewhere between 3.5 and 5.0 percent. At Economica, we employ the mid-point of this range: 4.25 percent.

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Christopher Bruce is the President of Economica and a Professor of Economics at the University of Calgary. He is also the author of Assessment of Personal Injury Damages (Butterworths, 2004).

Employment of Persons With Disabilities: The Employment Equity Act 1986 to 1996

by Gordon C.M. Wallace and Gail M. Currie

This article first appeared in the autumn 1996 issue of the Expert Witness.

Impaired earning capacity remains a significant head of damages in the evaluation of a personal injury action. The discipline of Vocational Rehabilitation has a longstanding history of assisting the Courts in understanding a disabled plaintiff’s occupational options through matching their vocational attributes, abilities, and interests with the requirements of specific jobs. (G. Wallace and D. Nordin, “Assessment of Residual Employability Potential” in E.L. Gross (ed). Injury Evaluation: Medicolegal Practices. Butterworths, Toronto, 1991). Unfortunately, in many circumstances, while appropriate occupational options may be identifiable, the reality is that disabled individuals often face significant barriers in obtaining and maintaining employment in the competitive labour market. These realities can have significant impact for the personal injury claim and therefore are important considerations for counsel to be cognizant of.

The awareness of the difficulties which individuals with disabilities face in regards to their employment is certainly not a new concern. In 1985, the report of the Parliamentary Committee on Equality Rights to the House of Commons noted that:

Disabled people suffer from extraordinarily high unemployment rates. When they are employed, they tend to be concentrated in the low paying, marginal sectors of the labour market. They also have expenses that non- disabled workers do not face, such as medication, special aids and devices, and special transportation services (page 105).

In an attempt to address some of the inequities for this and other disadvantaged populations, in January of 1985, the Federal Government introduced Bill C62 which provided for the establishment of Employment Equity Programs in all corporations under federal jurisdiction, including crown corporations with 100 or more employees. In 1990, this legislation encompassed 370 employers accounting for 630,000 employees. This covered only 5 percent of the Canadian labour force while nearly two thirds of this represented group were employed in Ontario 40 percent) or Quebec (20 percent). Almost the entire work force under this legislation was employed in service producing industries rather than good producing industries such as manufacturing and construction. The three main industrial sectors – banking, transportation and communication – each accounted for roughly 30 percent of the workforce.

Under this Bill, a person was included under the “disabled” category if they had the following three criteria:

  1. Have a persistent physical, mental, psychiatric, sensory or learning impairment.
  2. Consider themselves to be or believe that an employer or potential employer would be likely to consider them to be disadvantaged in employment by reason of impairment.
  3. Identify themselves to an employer or agree to be identified by an employer as a person with disabilities.

In addition to the Employment Equity Act, the government also established a Federal Contractors Program designed to influence the behavior of firms with 100+ employees submitting tenders worth more than $200,000 to the government for goods and services provision. As well, the Affirmative Action Policy had been introduced by the Treasury Board in 1983 with an objective of enabling the equitable representation and distribution in the public service of Women, Aboriginal Peoples and Persons with Disability.

Unfortunately, even with their laudable intentions, these measures appear to have had very little impact in terms of increasing the employment of individuals with disabilities. In fact, in terms of “persons with disabilities”, a review of the Statistical Summary Employment Equity Act 1987-1990 (Employment and Immigration Canada, January 1992) indicates only modest gains over the reported four years. Specifically, the labour force representation of this group increased from 1.59 percent in 1987 to 2.39 percent in 1990. However, a further analysis of the “hiring” and “termination” data for this group indicates that there had been more of the latter and less of the former! In other words, more disabled persons had been terminated or left the workforce over this period than had been hired. It has been suggested that what the numerical increase actually represents is the increased identification of present employees who would fall under the definition of having a disability. For example, individuals who wear eyeglasses could be considered as having a disability under this criterion and several large employers appear to have made greater efforts at identifying these individuals within their labour force. Therefore, any percentage increase for this group came from greater self- identification among existing employees and not from increased recruitment of individuals with disabilities (Canadian Human Rights Commission Annual Report 1991, Minister of Supply and Services Canada, 1992).

More recent information indicates that the representation of persons with disabilities was 2.56 percent in 1993 and 2.63 percent in 1994. However, this latest increase was also due primarily to a higher rate of self- identification and changes in the composition of the group of employers reporting under the Act (Employment Equity Statistical Summary, 1987-1994, Human Resources Development Canada, 1995).

Comments made by witnesses before a Parliamentary Committee established in 1991 to review the Employment Equity Act published in the report, A Matter of Fairness (May 1992) are illustrative of the difficulties experienced by individuals with disabilities. For example, Mr. Gerry McDonald, Vice Chairman of the Coalition of Provincial Organizations of the Handicapped, offered (February 19, 1992):

Canadians with disabilities are dismayed because the promise to improvements to the socio-economic status of disabled persons have not materialized. Disabled Canadians continue to confront systemic discrimination in employment. This is despite numerous national, international and regional instruments that assert equality rights. In Canada it is clear that after five years of employment equity, virtually no progress has been made in the area of acquisition of permanent full- time employment in the federally regulated work force by people with disabilities.

Ms. Carol McGregor, a spokesperson for the Disabled People for Employment Equity was even more blunt, stating (February 24, 1992):

We have seen over the past five years an Act that has proved to be utterly useless.

Mr. Maxwell Yalden, Chief Commissioner of the Canadian Human Rights Commission, testified (February 5, 1992):

Because the real gains of persons with disability have been more than offset by those leaving the work force, there has been a net outflow…. It is worse than that, because in some areas – I think women are one and perhaps visible minorities another – even in hard economic times when there were a number of people being let go, those groups still continued to increase their hold in the work force, but the disabled went down. There was a net outflow.

One of the major problems that was identified with the initial Employment Equity Act Legislation was its lack of effective sanctions. The only monetary penalty built into the legislation was for companies who fail to report what their employment equity plans are. Unfortunately, the legislation did not provide for any monetary sanctions for companies who failed to implement these programs. Subsequently, in 1994 Bill C64, designed to amend the original Act, was introduced to Parliament. This new Bill contains three main elements to amend the original Employment Equity Act, namely: 1) The inclusion of the Federal Public Service under the Act; 2) The clarification and guidance regarding obligations of employers; and 3) The creation of a mechanism to gain compliance and employment equity.

The inclusion of the Federal Public Service under this Act will increase its coverage to approximately 900,000 employees or about 8 percent of the Canadian Labour Force. Provision was also made for an independent external agency, the Human Rights Commission, to be responsible for enforcement of employer obligations with a mandate for this organization to conduct employer audits to ensure obligations under this legislation are met. However, there has been little change in the area of sanctions with monetary ones still only being applicable to those employers who fail to report their employment equity plans. No financial sanctions are yet available for those employers who do not actually carry through on their plans. The Canadian Human Rights Commission is however, expected to negotiate written undertakings from employers to take specific measures to remedy any inequities in the employment of the designated groups. If the Human Rights Commission Officer fails to obtain a written undertaking from an employer, the Commission has the power to issue a directive to the employer to take the specified action. Tribunal rulings constitute a final step if an employer fails to act on a written undertaking or disagrees with a direction. However, no order can be made or direction given that would:

  • Cause undo hardship on the employer;
  • Require an employer to hire or promote un-qualified persons;
  • With respect to the public sector, require that people be hired or promoted in a manner inconsistent with merit under the Public Service Employment Act;
  • Require an employer to create new positions;
  • Impose a quota on an employer.

So just how far do employers have to go to create more equality in the work force under this Act? The Act specifically notes:

Every employer shall ensure that its Employment Equity Plan would, if implemented, constitute reasonable progress toward implementing employment equity as required by this Act.

The major concern here is, or course, what constitutes “reasonable progress”. To date, the experience of persons with disabilities enjoying increased employment as a result of federal legislation since 1986 has certainly been “modest” at best. Whether or not the new changes to the Act will substantially increase the employment of persons with disabilities and/or move them from “poorly paid employment ghettos” (A Matter of Fairness, Report of the Special Committee on the Review of the Employment Equity Act, May 1992) remains to be seen. Therefore, until such evidence can be documented, the complete evaluation of impaired earning capacity claims for personal injury cases need to consider this present reality of the Canadian labour market. It requires plaintiff’s counsel not only to consider the identification of alternative occupational options for their clients but to also address the reality of disabled individuals obtaining and maintaining competitive employment. In many cases, this will require assessment of the clients circumstances by both the disciplines of Vocational Rehabilitation and Economics.

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Gordon Wallace, M.A., C. Psych. is the founder and a Senior Consultant of The Vocational Consulting Group Inc. Gail Currie, B.Sc., CCRC is a Vocational Rehabilitation Consultant in the company’s Edmonton office. The company also has offices in Vancouver and Kelowna and Calgary.

Head Office: #410 – 1333 West Broadway, Vancouver, B.C. V6H 4C1 (604) 734-4115 Fax (604) 736-4841

Damage Calculations in Fatal Accident Actions After Galand

by Christopher Bruce

This article first appeared in the autumn 1996 issue of the Expert Witness.

In an article published in the summer 1996 issue of this newsletter, I reviewed the theoretical arguments raised by Coté, J. A. in Galand Estate v. Stewart (1992), 6 Alta. L. R. (3d) 399 (Alta. C.A.). What Justice Coté concluded in his decision was that, in certain circumstances, the estate of a deceased could rely on the Survival of Actions Act to make a claim for loss of earnings. What was less clear in Galand were the types of cases in which such claims would be allowed; and the methods by which damages were to be calculated. The purpose of this article is to identify some of the issues which can be expected to influence the decisions concerning these two issues.

Cases in which Claims will be Allowed

There are at least four types of cases for which it appears that claims will be allowed. First, it appears that an estate will be able to claim under survival of actions legislation when a plaintiff dies after a personal injury trial but before legal proceedings have been completed. In the British case of Pickett v. British Rail Engineering Ltd. (1980), A.C. 136 (H.L.), for example, the plaintiff died after a personal injury trial but during the appeal process; and in the Canadian case of Hubert v. De Camillis (1963), 41 D.L.R. (2d) 495 (B.C.S.C.), the plaintiff died after trial but before the decision had been rendered. In both cases, the estate was successful.

Second, in Galand, Justice Coté noted that

…by the date of trial some of the wage loss of a deceased person may well be past and already incurred and exactly quantified…. So even on the respondent’s view of the law, this cause of action may exist and survive (at 405).

Third, Justice Coté also argued that in a case in which a beneficiary of the deceased was not a dependent and

…the premature death of the deceased clearly deprived the beneficiary of part of his inevitable inheritance… [t]here is a plain financial loss (at 406).

Finally, two of Justice Coté’s examples pointed to the conclusion that he would have been willing to award damages under the Survival of Actions Act in a case in which the deceased had a “…completely secure salary and employment … at the time of his injury or death” (at 403). He referred specifically to the case of a tenured university professor (at 403) and to Wayne Gretzky when he was single (at 406).

The only Alberta case to award damages for lost income under the Survival of Actions Act since Galand is McFetridge Estate v. Olds Aviation Ltd. (unreported, Edmonton, April 12, 1996). In that case, the deceased had been a successful businessman whose future income stream Justice Lee found to be easily quantifiable. That is, it appeared to have fallen into the fourth of the categories identified above.

What is not yet known is how the Appeal Court will deal with cases of a more speculative nature, such as those involving the loss of lifetime income of an individual who was a minor at the time of his or her death. This issue may be decided later this year when the appeal is heard in Duncan Estate v. Bradley (1994), 161 A.R. 357 (Alta. S.C.).

Assessment of Damages

Section 5 of Alberta’s Survival of Actions Act states only that:

5. If a cause of action survives under section 2, only those damages that resulted in actual financial loss to the deceased or his estate are recoverable… (emphasis added)

What is not indicated is how the courts are to assess “actual financial loss” to an estate. Nor does the decision in Galand offer a great deal of assistance as the court was asked only to consider the issue of whether a cause of action survived a plaintiff’s death – not what that “action” might be.

Nevertheless, the courts have provided some information concerning the approaches which they prefer. Three of these will be considered here.

The loss of inheritance approach: In Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114, Madame Justice McLachlin (at 127-128) cited approvingly from Cooper-Stephenson and Saunders (Personal Injury Damages in Canada (1981) at 244) who argued that:

…the award of damages to a very young child for prospective loss of earnings during the lost years should reflect only that portion of the entire lifetime earnings which the court estimates would have been saved by the child for his estate, at the end of his pre-accident life expectancy (emphasis added).

The rationale which Cooper-Stephenson and Saunders offered for this position was that “…the prime purpose of the award during the lost years is to make provision for [the deceased’s] dependants” (at 243). In short, as the purpose of tort damages is to compensate the plaintiffs, an award based on a more liberal approach would result in a “windfall” for the dependants.

In Alberta, there is a number of weaknesses to this approach. First, the “windfall” argument has already been rejected by the majority in Galand. Second, as will be noted below, there is reason to believe that Galand sets a precedent for use of the “lost years” approach.

Also, Section 5 of the Act states that “…damages that resulted in actual financial loss to the deceased or his estate are recoverable” (emphasis added). On a plain reading, “loss to the deceased” would appear to imply something more than “loss of inheritance.” Finally, in Galand Justice Coté cited Pickett as precedent for the view that an estate should be able to “…recover for tortious loss of earnings or earning capacity of the deceased” (at 407, emphasis added).

The lost years approach: Assume that the plaintiff’s injuries have reduced her life expectancy from 40 years to 10 years. During the 30 years which have been “lost,” the plaintiff would have received income which would have been offset, to a certain extent, by expenditures on “necessities.” The theory behind the “lost years approach” is that, during those 30 years, the plaintiff has lost the pleasure associated with the difference between her income and her living expenses. (This issue was discussed in greater detail in the first issue of this newsletter.) During the remaining 10 years, she will be entitled to her full loss of earnings (as she will have to incur her full living expenses during those years).

Now assume that, instead of having a reduced life expectancy of 10 years, the plaintiff’s life expectancy has been reduced to two years. In a personal injury action, she would be entitled to damages equal to her income during those two years plus the difference between her income and her expenses in the remaining 38 “lost” years.

By simple extrapolation, it is seen that if the plaintiff’s life expectancy has been reduced to one year, or one month, or one week, a similar calculation can be made. And if we take the argument to its logical conclusion, if the plaintiff’s life “expectancy” has been reduced to one second, the “lost years” approach would suggest that damages should equal the difference between her projected lifetime earnings and her projected lifetime expenses in the 40 years which have been “lost.”

Both the Pickett and Hubert cases discussed above offered support for use of the lost years approach. If the estate of a plaintiff who has died soon after a trial is to be awarded damages based on the lost years approach, it would seem to be difficult to justify a different approach in the case of a plaintiff who has died soon before (or during) a trial. Furthermore, both Justice Coté’s approval of Pickett and his comment that “…the deceased had a cause of action for loss of future earnings because life expectancy was shortened.” (Galand at 404, emphasis added) seem to suggest that the Alberta Court of Appeal is prepared to employ the lost years approach.

Nevertheless, an inconsistency arises when the lost years approach is extrapolated from personal injury cases to fatal accident cases. One rationale for the lost years approach in the former is that the plaintiff could, in principle, replace the pleasure foregone during the lost years by spending her award during her remaining years. That is, the award in such a case can be seen as compensatory to the plaintiff. This rationale is missing in fatal accident cases (although it is also missing in personal injury cases involving plaintiffs who have become “vegetables”).

Loss of a capital asset: In a leading Supreme Court of Canada case, The Queen v. Jennings ((1966), 57 D.L.R. (2d) 644), Judson, J. concluded that if a plaintiff “…has been deprived of his capacity to earn income… [i]t is the value of that capital asset which has to be assessed” (at 656, emphasis added). Further, in Andrews v. Grand & Toy (1978) D.L.R. (3d) 452 (S.C.C.), Mr. Justice Dickson argued that this asset should be assessed at the value which it possessed before the injury; that is, unreduced for the lost years.

The controversial question then arises whether the capitalization of future earning capacity should be based on the expected working life span prior to the accident, or the shortened life expectancy…. When viewed as the loss of a capital asset consisting of income-earning capacity rather than a loss of income, the answer is apparent: it must be the loss of that capacity which existed prior to the accident (at 469-70).

But if one’s future earning capacity is to be treated as a capital asset, how is that asset to be valued? Two possibilities present themselves. First, as Mr. Justice Dickson implies, one could simply capitalize the future stream of income into a commuted value.

Alternatively, however, one could recognise that the value of a physical asset is not the capitalized value of its future stream of total earnings, but the value of those earnings net of the expenses of operation and maintenance. In that case, the loss of the capital asset, “future earning capacity”, would be found by capitalizing the individual’s future stream of earnings net of expenditures on necessities. That is, the capital asset approach may produce a result similar to that obtained using the lost years approach. Interestingly, this rationale for the lost years method does not encounter the objection raised above – that it assumes the plaintiff will live long enough to consume the award.

Implicitly, Justice Lee accepted the capital asset approach in McFetridge. There, the estate was awarded damages equal to the reduction in the value of the deceased’s businesses.

Comment

If the Court of Appeal does not reverse the Galand decision entirely when it hears the Duncan appeal, I believe that the law will develop as follows: First, the arguments made in the preceding section seem to suggest that it is the lost years approach which will be used to value damages, although the court may couch its decision in terms of the capital asset approach.

Second, over time, I believe that the courts will apply survival of actions legislation to all types of cases, including those involving minors. The reason for this is that once the courts allow actions in cases involving plaintiffs with “well-established” career patterns, such as tenured university professors, they will encounter difficulty distinguishing those situations from cases in which the deceased was “secure” in his or her career, such as a 35 year-old mechanic or engineer. This will give the courts difficulty distinguishing the latter from recent university or technical school graduates, graduates from high school students, and high school students from infants. Eventually, therefore, the estates of all fatal accident victims will be able to claim under the Survival of Actions Act.

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Christopher Bruce is the President of Economica and a Professor of Economics at the University of Calgary. He is also the author of Assessment of Personal Injury Damages (Butterworths, 2004).