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Excerpt from B.M.G. v. Nova Scotia (Attorney General)

[2007] NSSC 27

para. [176] BMG: Past and future loss of income: I permitted the Plaintiff to call Cara Lane Brown to give expert evidence as a labour economist specializing in quantifying loss of income claims. She provided an actuarial report. Ms. Brown’s curriculum vitae is impressive. She has given expert evidence on many occasions both in this country and in the United States. The Defendant did not dispute Ms. Brown’s qualifications.

para. [177] The Defendant argued that Ms. Brown’s report is not based upon sufficient facts or data. [Poirier v. Dyer (1989), 91 N.S.R. (2d) 119 (N.S.S.C.)] The argument is premised upon the proposition that BMG was selective in terms of the information he provided to the psychologist, Dr. Hayes, and with respect to the psychological and employment records he provided. Ms. Brown relied upon Dr. Hayes’ report and conclusions when she made her economic assumptions. In light of my acceptance of Dr. Hayes’ findings, the Defendant’s objection largely disappears.

para. [178] I have already mentioned that I do not believe that BMG intentionally misled Dr. Hayes. I have taken into account that Dr. Hayes did not have as full an appreciation of BMG’s family conflicts as he might have. I have also concluded that, despite the informational deficiencies, Dr. Hayes’ diagnosis is fundamentally sound.

para. [179] Likewise, I reject the notion that BMG was selective in the production of his psychological and employment records. I am satisfied that BMG and his Counsel exercised their best efforts to secure any and all records still in existence. It should not be surprising that, after the passage of so much time (in some instances, 25 to 30 years), some records are simply no longer available.

para. [180] Ms. Brown benchmarked her calculations of BMG’s potential earnings with statistical sources available from Statistics Canada’s 1996 Census and the 2001 Census and Earnings of Men and Women 1984 - 1996. She used three scenarios to calculate BMG’s "without incident" income: That, but for Lalo, BMG would have (1) completed high school; (2) completed a two-year college diploma; or (3) completed a university degree.

para. [181] She then used the Statistics Canada information to quantify BMG’s income for each of those scenarios. She deducted his residual income insofar as it could be ascertained. I note that Ms. Brown relied upon data for Nova Scotia where possible. This was a conservative approach because I do not believe that BMG would necessarily have confined himself to Nova Scotia even if his circumstances had been normal.

para. [182] The Statistics Canada data does represent a reasonable starting point for quantifying BMG’s past and future loss of income. The alternative is to simply pull numbers out of the air and deem them to be appropriate figures. After careful reflection, however, I have concluded that BMG’s past and future financial loss is not amenable to precise arithmetical calculation. There are too many imponderables. The actuarial figures are helpful in that they provide a reference point to be considered in the context of all the evidence.

para. [183] I have no doubt that the Lalo assaults have had a significant financial impact upon BMG’s earnings. They will continue to have an impact upon his future earnings. The same can be said of the psychological aftermath of the severe physical and emotional abuse BMG suffered at home.

para. [184] I have concluded that but for the Lalo assaults, BMG would at some point have attained high school equivalency. He likely would then have gone on to trades training. Because of the family abuse and lack of support, it is unlikely that BMG would have gone to college or university. He would not have become a professional.

para. [185] Under Ms. Brown’s first scenario, high school completion, BMG’s potential loss of income was projected to be $1,094,5000.00. That figure is comprised of $636,000.00 for past loss of income (including appropriate prejudgement interest) and $458,500.00 for future loss of income. Those figures reflect the average incomes of high school graduates. They provide only limited insight into BMG’s individual circumstances. The calculation of residual income is based upon incomplete records and arbitrary projections.

para. [186] The impact of negative contingencies such as job loss, unemployment or injury are difficult to evaluate. Being of superior intelligence and resourcefulness, BMG has the ability to surpass the average income level of high school graduates in the future. Further, it is arguable that BMG could have mitigated his loss by making better use of his inheritance money. He could have spent $40,000.00, for example, to obtain the commercial pilot’s license he desires.

para. [187] In the end, I have to exercise some judgement to make a fair and reasonable award. I deem $500,000.00 to be an appropriate figure to compensate BMG for both his past and future loss of income. That figure is inclusive of prejudgement interest on the past loss component. (emphasis added)

para. [188] Summary of Damages:
General Damages $125,000.00
Prejudgement Interest (2.5% x 5) 15,625.00
Past & Future Loss of Income $500,000.00
Total $640,625.00