Ostrikoff v. Oliveira, 2015 BCCA 351

Judge:Saunders, Tysoe and Bennett, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:January 29, 2015
Jurisdiction:British Columbia
Citations:2015 BCCA 351;(2015), 375 B.C.A.C. 215 (CA)
 
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Ostrikoff v. Oliveira (2015), 375 B.C.A.C. 215 (CA);

    644 W.A.C. 215

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Temp. Cite: [2015] B.C.A.C. TBEd. AU.010

Jason Ostrikoff (respondent/plaintiff) v. Daniel Diogo Oliveira (appellant/defendant)

(CA41736; 2015 BCCA 351)

Indexed As: Ostrikoff v. Oliveira

British Columbia Court of Appeal

Saunders, Tysoe and Bennett, JJ.A.

August 5, 2015.

Summary:

The plaintiff sued for damages for injuries suffered in a motor vehicle accident. The defendant admitted liability.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 531, awarded the plaintiff damages, including $95,000 for past loss of earning capacity and $325,000 for future loss of earning capacity. The defendant appealed the awards for loss of earning capacity.

The British Columbia Court of Appeal allowed the appeal. The trial judge projected a growth in income without having a basis in the evidence for doing so and then found a loss of past earning capacity based on a stream of increasing earnings. That award could not be sustained. The award for loss of future earning capacity could not be sustained for two reasons. First, it was linked to a "net income stream analysis" and therefore could not be entirely separated from the track of increasing earnings that was projected without an evidentiary basis. Second, the trial judge did not adequately consider negative and positive contingences and thus failed to assess the impact of the injuries on the plaintiff's ability to earn income. The court remitted the matter to the trial judge for redetermination of the claims.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - See paragraphs 14 to 30.

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - See paragraphs 25 to 30.

Damages - Topic 1563

General damages - General damages for personal injury - Matters of speculation - See paragraphs 14 to 30.

Cases Noticed:

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 2].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 15].

Wood v. Grand Valley Railway Co. (1915), 51 S.C.R. 283, refd to. [para. 20].

Wilson et al. v. Rowswell, [1970] S.C.R. 865, refd to. [para. 20].

Perren v. Lalari (2010), 285 B.C.A.C. 98; 482 W.A.C. 98; 2010 BCCA 140, refd to. [para. 25].

Johal v. Meyede (2014), 365 B.C.A.C. 161; 627 W.A.C. 161; 2014 BCCA 509, refd to. [para. 26].

R. v. McBeath (B.J.) (2014), 359 B.C.A.C. 110; 615 W.A.C. 110; 2014 BCCA 305, refd to. [para. 27].

Counsel:

G. Ritchey, for the appellant;

M.D. Brooke, for the respondent.

This appeal was heard at Vancouver, British Columbia, on January 29, 2015, by Saunders, Tysoe and Bennett, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on August 5, 2015.

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