Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.
This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – Law360™ Canada – Posted: July 25, 2025
In Insurance Corporation of British Columbia v. Dhaliwal, 2025 BCCA 142, the British Columbia Court of Appeal dismissed an appeal brought by the Insurance Corporation of British Columbia and two individual defendants challenging a trial award of damages to the plaintiff, Balbir Dhaliwal, arising from two motor vehicle accidents. The appellants argued that the trial judge erred in assessing damages for loss of earning capacity and misinterpreted a concession regarding past income loss. The appeal was dismissed, with ordinary costs awarded.
The trial decision
Dhaliwal was injured in two separate motor vehicle accidents in 2015 and 2017. She brought claims for damages, including loss of past and future earning capacity from her employment and real estate investments. At trial, she was awarded:
- $270,386.75 for past employment income loss,
- $175,000 for future employment income loss as a senior constituency assistant,
- $123,076.92 for past and future income loss from property development.
Dhaliwal’s employment history involved federal and provincial election campaigning, investing in real estate, and working at Vancity Visa (a credit card company) and Service Canada.
The trial judge accepted Dhaliwal’s evidence and that of her medical experts, finding that her injuries significantly impacted her ability to work and invest in real estate. The defendants did not contest the $50,000 component of the Vancity Visa claim during trial, which the judge interpreted as a concession.
The appeal
The appellants challenged three aspects of the trial decision, arguing:
- The trial judge misapprehended a concession regarding the Vancity Visa income loss, accepting $56,765 instead of the conceded $6,765.
- The $175,000 award for future employment loss was inordinately high.
- The $200,000 award for diminished real estate investment capacity was unsupported by evidence and legal analysis.
Held
The Court of Appeal held that while the trial judge erred in interpreting the concession, the error was not overriding. The appellants failed to raise the issue during trial, and the award was supported by the evidence. The future employment loss award was found to be reasonable, given Dhaliwal’s ongoing impairments and the demanding nature of her work. The real estate investment loss was also upheld, with the court finding a real and substantial possibility of future pecuniary loss due to psychological impairments following the second accident.
Justice Harvey Groberman dissented on the concession issue, finding the error to be reversible and material. However, he agreed with the majority on the other grounds and would have allowed the appeal only on the first issue.
Legal principles
An award of damages is subject to a highly deferential standard of review on appeal. An appellate court may only intervene where there was no evidence to support the trial judge’s conclusion, the judge proceeded on a mistaken or wrong principle, or the award was so inordinately high or low that it must be a wholly erroneous estimate of damages.
The standard of review for findings of fact, inferences drawn from those facts and findings of mixed fact and law is palpable and overriding error. The trial judge’s assessment damages raise questions of fact or mixed fact and law. Where a question of mixed fact and law involves a legal principle that is readily extricable from the factual context, the standard of correctness applies.
The Court of Appeal emphasized that appeals are from orders, not reasons. While the failure to engage in the proper analysis may be an error in principle, this does not inevitably lead to a different outcome.
Discussion
Issue 1: Misunderstanding the Vancity Visa concession
Dhaliwal’s past income loss claims from Vancity Visa included $6,765 for actual lost wages before starting a new job, and $50,000 for hypothetical earnings she claimed she would have made had she continued working part-time alongside her other roles.
The appellants argued that the trial judge misunderstood their closing submissions on the matter. They conceded only to the $6,765 for actual lost wages, not the $50,000.
With the benefit of the transcript, it was apparent that counsel was conceding only “$6,000,” or the first component of the Vancity Visa claim, and the judge misapprehended what was being conceded.
No case was provided dealing with the standard of review regarding a misapprehension of a concession. The Court of Appeal considered Dignard v. Dignard, 2025 BCCA 43, which interpreted a concession in that context as a finding of fact and therefore subject to review on a standard of palpable and overriding error. Applying the principle in this case, this ground of appeal was rejected.The trial judge’s error was not material.
Dhaliwal’s counsel made written and oral submissions in support of the $50,000 component of the claim. The appellants chose not to address it in their comprehensive written submissions. There was no live issue regarding the $50,000 component. Also, the award for $56,765 was supported by the evidence.
Issue 2: Alleged errors in assessing loss of past and future earning capacity
Generally speaking, an award for loss of past earning capacity compensates the plaintiff for the loss of the value of the work they would have, not could have, performed but were unable to, because of their accident-related injuries. The task in assessing loss of future earning capacity involves a comparison between the plaintiff’s likely future working life if the accident had not occurred with their likely future working life after the accident.
Past events must be proven on a balance of probabilities. The standard of proof for hypothetical future events is whether there is a real and substantial possibility that they will occur. This requires proof that is lower than a balance of probabilities but higher than something that is only possible and speculative.
The three-step approach to assessing damages for lost and future earning capacity is as follows:
- Does the evidence disclose a potential future event that could lead to loss of capacity?
- Does the evidence show there is a real and substantial possibility that the future event willcause a pecuniary loss?
- If yes, assess the value of the possible future loss (including an assessment of the relative likelihood of the possibility occurring).
The appellants argued that the first two steps of this Rab framework were met, but there was an error in the third. They argued that the award of $175,000 for lost future earning capacity was inordinately high.
The Court of Appeal rejected this argument. An inordinately high award involves a wholly erroneous estimate of the damages. This was not that.
Issue 3: Alleged error in assessing loss of capacity for real estate investing
The appellants argued that the judge erred in assessing $200,000 for past and future earning capacity from real estate investing. They argued:
- The award could not be sustained given the judge’s findings of fact
- There was insufficient evidence to support the key finding of a real and substantial possibility that she will suffer a pecuniary loss from a somewhat diminished capacity for real estate investment, and
- The judge failed to engage the analysis required in steps two and three of the Rab framework.
The Court of Appeal held that there was no merit to these arguments.
Costs
Ordinary costs were awarded to the respondent. The court did not consider the appellants’ conduct to warrant special costs.
Takeaway
Even where a trial judge errs in interpreting a concession, appellate courts may uphold the decision if the error is not material, and the award is supported by the evidence. The court emphasized the importance of raising live issues at trial and the deferential standard of review applied to damages assessments.
Victoria Edwards is an associate personal injury lawyer at Siskinds, The Law Firm. She provides top-quality legal services to her clients by prioritizing clarity and accessibility when explaining legal options to her clients. Her practice includes motor vehicle litigation, short- and long-term disability claims, slips/trips and falls, and dog bites. She attended Western Law, where she worked and volunteered in the legal clinic. She works primarily out of Sarnia, Ont., for clients across southwestern Ontario.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not betaken as legal advice.
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