Products & Services
Court Testimony from Experts @ BEC
Excerpt from Adams v. Canada (Attorney General), 2015 ABQB 527, released August 21, 2015A personal injury case involving a Correctional Services of Canada (CSC) inmate who was assaulted by another inmate in the medium security facility at Drumheller, Alberta in 2007 was decided in August of 2015. Justice Dario found that the CSC did not breach the applicable standard of care for medium security facilities and was not liable in negligence for the assault on the plaintiff, Mr. Adams, nor for failing to find him more quickly after the assault. In her assessment of the damages which would have been awarded had Mr. Adams’ claim been successful, Dario J. accepted Cara Brown’s evidence for the defense in lieu of the plaintiff’s expert evidence, and found that no award for loss of past or future income would have been determined in any event.
Excerpts from the judgement:
 Again, although I have found no liability of the part of the Defendant, as I have had the benefit of expert testimony on this topic, I will address the quantum of damages. Mr. Adams claims for general damages, past and future loss of income, and future cost of care (together with income tax gross up and prejudgement interest) in the range of $1,473,421 to $1,919,356.
 The Defendant argues that the substantiated and otherwise appropriate damages are $242,000. If damages are awarded, the Defendant states there should be a deduction in the amount of $70,000 to reflect amounts already paid to Mr. Adams pursuant to the Alberta Victims of Crime compensation program, reducing the damages to $172,000.
 Mr. Adams asserts that, without the assault, he would have remained in Alberta after his release and returned to the oil patch. The strongest evidence of his intent, however, is the letter he wrote to his mother earlier in the day of the incident stating he wanted to return to Newfoundland and perhaps start a family. I find that he would have returned to Newfoundland after his release from the Drumheller Institution. I further note that Mr. Adams’ entire work experience in the oil patch was two months in Grande Prairie, and that he quit that job to stock shelves at Wal-Mart with his friend. There is little evidence to support his assertion that he would have returned to this type of position.
 Mr. Adams’ prior work history in general does not support his claim. He acknowledges his annual earnings from 2001-2005 never went above $4,755. He points, however, to his 2006 income, which jumped to $15,418. This increase was due largely to the two-month period Mr. Adams worked in the oil patch. I note that after leaving his brief employ in the oil and gas sector, Mr. Adams’ income was from dealing crack cocaine, at an estimated income of $3,000 per day.
 The Defendant argues that Mr. Adams has not experienced a loss of income and will not. In support of this position, the Defendant notes Mr. Adams’ variable and sporadic work history, primarily in minimum wage positions. Some years Mr. Adams reported no income at all. Even factoring in his 2006 income, his average pre-incident annual earnings are $4,000. His average annual income post-incident is $7,000. The Defendant argues Mr. Adams had no record of ambition or industry, only of criminal activity and addiction - both of which spiralled out of control in 2006-2007. Mr. Adams’ own testimony supports these assertions.
 Mr. Adams’ assumptions are not representative either of his work history or of his reasonable income projections. While I agree with Mr. Adams that labour market experiences for individuals aged 20-26 may be sporadic, his income was more than 70% lower than the average in his age category. Thus, attributing “average income” to Mr. Adams is not reflective of his work history.
 The relevant period for determining loss of past income is the period that commences after Mr. Adams’ release date (assuming he was paroled) plus some time thereafter to find suitable employment, and ends on the first date of trial, being June 9, 2014. Mr. Adams suggests he would have found employment six months after parole, being September 9, 2008. The Defendant states that six months is the average and that it likely would have taken longer for Mr. Adams.
 Mr. Adams claims lost income in the range of $53,000 to $215,000, depending on the assumptions employed. The Defendant argues an amount of zero is more appropriate.
 Based on Mr. Adams’ sporadic pre-incident work history and his criminal record, I find he has not established a loss of past income. After release from the Drumheller Institution, he received social assistance payments between $6,469 and $11,411 in each year from 2008-2011, then worked part-time in 2012-2013 in some training/entry-level jobs. On October 7, 2013, he commenced working 32 hours per week as a light duty cleaner at a rate of $12/hr. His income for these years is above his historical earning pattern and he has provided no evidence that it is out of line with re-entry into the workforce.
 The Defendant argues that, given Mr. Adams’ work history, he has not established a reasonable possibility of loss of future income. In fact, the incident may have actually motivated an improvement in Mr. Adams’ lifestyle and legitimate income earning, leading him out of the crack cocaine subculture.
 The evidence in this case is not in Mr. Adams’ favour. I am unable to find that he has established a future income loss as a ‘real and substantial possibility’ (Athey at para 44), given his pre-incident work history and his previous income that was so markedly below the average for his peers.
 Although I have found no loss of future income has been established, had I not made such a determination, the following are my findings had Mr. Adams established future loss as a reasonable possibility. There are problems with the assumptions relied on by each of the economic experts. Mr. Adams’ expert assumed him to be an average full-time employee and compared him against certain laborer groups. The Defendant’s expert assumed future work parameters that are more realistic, but it is not clear whether the discount rate she used (based on a “mild disability” reduction of 16%) was appropriate.
 Of the two economic experts, I prefer both the assumptions relied upon and the methodology used by the Defendant’s expert, for various reasons. Regarding methodology for example, Mr. Adams’ expert made allowances for real growth for “without incident” income, but held the “with incident” income at a no growth constant dollar amount. Mr. Adams contests the method by which the Defendant’s expert arrived at the level of disability to apply in her calculations. Nevertheless, I find that the Defendant’s expert evidence is preferable even taking into account this concern. In coming to this conclusion, I must balance Mr. Adams’ objection against the Defendant’s argument, supported by Dr. King, that some of Mr. Adams’ residual issues - such as memory problems and other mental and cognitive functional difficulties - may be attributable to his crack cocaine and marijuana addictions rather than to the attack. I accept that a mild disability rating is acceptable in light of the Plaintiff’s evidentiary issue.
 Assuming Mr. Adams moved to Newfoundland and completed Grade 12, his loss of income under the Defendant’s model would be $53,465, plus pre-judgment interest.
 Although Mr. Adams fails in his claim, had he succeeded in establishing the elements of his negligence claim, I assess damages as follows: general damages $130,000 plus pre-judgement interest, and cost of future care $95,486 grossed-up at the applicable personal income tax rates for an individual residing in Newfoundland. There is no award for loss of past or future income.