COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Joyce v. Dorvault,
	2008 BCCA 151

Date: 20080404

Docket: CA035137

Between:

Donald Arthur Joyce

Respondent

(Plaintiff)

And

Michael Dorvault and Antonietta Dorvault

Appellants

(Defendants)

Before:	The Honourable Madam Justice Huddart
	The Honourable Madam Justice Levine
	The Honourable Mr. Justice Lowry

Oral Reasons for Judgment

A. M. Gunn, Jr. R.W. Parsons	Counsel for the Appellants
M. Maryn F. Hayman	Counsel for the Respondent
Place and Date:	Vancouver, British Columbia
4 April 2008

[1]                LOWRY, J.A.:  The plaintiff in this action, Donald Joyce, appeals, by way of cross appeal, two aspects of the assessment of damages awarded to him by Mr. Justice Josephson for losses he suffered as a result of injuries arising out of a motor vehicle accident on 8 January 2003, for which liability was admitted: 2007 BCSC 786.  The defendants’ main appeal of the assessment of damages in the action has been abandoned.

[2]                The plaintiff, who is in his mid-50s, suffered soft tissue injuries in the accident, some of which did not resolve.  Injuries to his right arm, shoulder, neck and upper back have left him with a significant measure of impaired function which has affected his income earning ability.  He contends the judge erred in the awards made for past income loss and future income earning capacity.

[3]                The plaintiff’s history of employment over his working life has been consistent but, until shortly before the accident, his income was modest.  After high school he worked as a labourer for some years.  He was employed in motorcycle sales and mechanics for a long time and then spent 15 years buying, reconditioning, and reselling automobiles.  During those years, his income ranged between $6,000 and $34,000. 

[4]                In 1999, he began working for a helicopter brokerage which afforded him exposure to the business of acquiring, reconditioning and selling helicopter components, and led to the plaintiff starting a helicopter parts business with a partner who had considerable experience on the transaction side.  Each held a half interest.  The plaintiff’s focus was on physically obtaining and working on the inventory, leaving the buying and selling of the inventory entirely to his partner.  The business did well in the first two years.  The plaintiff’s earning was over $150,000 in each year.  But in 2002, he and his partner had a falling out over what the plaintiff considered to be his partner’s less than forthright dealings with customers and the partner left.  In the nine months leading up to and including the month after the plaintiff’s accident, the business showed a loss of $250,000.  Most of that occurred before the plaintiff’s partner left.  

[5]                Following his accident, the plaintiff found he could no longer meet the physical demands of the business.  He proceeded to wind it down.  He then turned his attention to the stock market and becoming a day trader.  On the evidence, there are various alternatives available to him that would permit him to earn a reasonable income.

[6]                At trial, the plaintiff contended his income, had he been able to continue to operate his business, would have been upwards of $300,000 a year.  He sought an award of $550,000 for his past loss of income from 2003 to 2007.  He was awarded $200,000.  This award was made having regard for four negative factors the judge said were “considerable”: 1) the plaintiff was relatively new to the business and very new to the transaction side, although he was earning a good reputation; 2) the business had benefited from windfall income prior to the partner’s leaving which was not likely to be repeated; 3) experience indicated a person could earn $60,000 or more early on and $100,000 or more after a few years; and 4) the nature of the business has changed, particularly with the advent of the internet and it has become more competitive and less profitable.  

[7]                With respect to his loss of future income earning capacity, the plaintiff maintains the award should have been $1 million.  The judge applied what is referred to as the “real possibility” approach.  He determined that because of pre-accident physical degenerative changes in the plaintiff, the plaintiff would have worked a further ten years.  Having regard for what the judge said were the same negative contingencies pertaining to the plaintiff’s past loss of income, as well as the usual contingencies of illness or injury, he awarded the plaintiff $325,000 for his loss of future income earning capacity.

[8]                The plaintiff contends the judge erred in the application of the “real possibility” approach to the assessment of his lost future income earning capacity and made a palpable and overriding error in the assessment of his past income loss. 

[9]                The circumstances in which it is appropriate for an appellate court to alter a damage award made at trial are limited.  As stated by McIntyre J. in Woelk v. Halvorson, [1980] 2 S.C.R. 430 at 435:

            It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion.  It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that a Court of Appeal is entitled to intervene.

[10]            This circumscribed standard of review has been consistently followed by this Court in cases of this kind.  See for example, Reilly v. Lynn, 2003 BCCA 49, 10 B.C.L.R. (4th) 16 at para. 99; and Hoff v. Joncas (1997), 43 B.C.L.R. (3d) 203 (C.A.) at para. 17.

[11]            The plaintiff says that in assessing the award for the loss of future income earning capacity the judge wrongly applied the “real possibility” test in two ways:  the judge failed to properly ascertain what the plaintiff could reasonably have earned from January 2003 onwards in his helicopter parts business had he not been injured, and then the judge failed to properly take into account and balance the contingencies, negative and positive, associated with the potential growth and success of the helicopter parts business.  There were, he says, positive contingencies that were not taken into account at all.  As I understand him, the plaintiff says the same considerations gave rise to what he says is an overriding error in the assessment of his past loss of income.

[12]            The plaintiff’s contention does not, in my view, go beyond argument that greater emphasis should have been given to some aspects of the evidence. 

[13]            He says the judge’s task was to take the income stream projected from the past performance of the business ($300,000 per year) and then identify and weigh the contingencies of it being achieved in making his assessment of loss, allowing for income the plaintiff can reasonably be expected to earn from alternative employment sources. 

[14]            I do not disagree with what the plaintiff says the “real possibility” approach entails.  The difficulty in this case is much of what the judge considered to be negative factors seriously undermines accepting the financial performance of the business prior to the plaintiff’s falling out with his partner as indicative of the success to be expected.  The projected income stream is based on what had been achieved with the benefit of the partner’s experience, particularly on the transaction side, and on substantial windfall gain that was unlikely to be repeated.  The basis of the projected income was then not sound.  The plaintiff points to evidence that might be said to yield a more positive picture in terms of the potential success of the business but, while I can see arguments going both ways, I see no error in this regard.

[15]            It is recognized contingencies are “so bound up with an appreciation of the evidence that the trial judge’s view must be given deference”, and should not be interfered with, barring an “obvious error”:  Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 (C.A.) at para. 33.  The lack of an explicit balancing between positive and negative contingencies does not mean the positive contingencies the plaintiff raises were ignored by the trial judge. 

[16]            The plaintiff says his personal commitment to the business, his experience in selling cars and motorcycles which would have permitted him to do well on the transaction side of the business after his partner left, and the increased demand for helicopters attributable to the growth of the petroleum industry are positive contingencies the judge did not take into account.  But the extent to which any of these factors could be said to counterbalance what the judge saw as the negative factors is, on the evidence, open to argument.  The plaintiff may well have been committed to the business but I doubt his previous experience could be said to be strong evidence he would necessarily have done well in buying and selling helicopter components, and the extent to which his business may have benefited from the growth of the petroleum industry must be highly speculative.  It may be arguable there was support for the plaintiff’s case in these considerations but the judge evidently did not consider there was and I see no error on his part.  

[17]            The plaintiff says his partner’s leaving was actually a positive consideration because he would have been able to improve the reputation of his business.  He says this factor was not considered.  But (at para. 10) the judge expressly recognized the evidence that reputation is most important in the helicopter parts business and, as I have stated, he actually saw the fact the plaintiff was earning a good reputation as mitigating the first of the negative factors he identified. 

[18]            While the plaintiff argues the negative contingencies were not as negative as the judge appears to have considered, it cannot, in my view, be said the judge was not entitled to take the view of them he did, nor that his doing so led him into “obvious error” in the assessment he made.  The negative contingencies were assessed in light of evidence relating to the history, the current status, and future direction of the industry in which the business operated.  I see no reason the judge was not entitled to assess the contingencies as he did.

[19]            It follows that I do not consider the judge has been shown to have erred in his assessment of the two awards being considered and I would dismiss the cross appeal.

[20]            HUDDART, J.A.: I agree.

[21]            LEVINE, J.A.: I agree.

[22]            HUDDART, J.A.:  The cross-appeal is dismissed.

“The Honourable Mr. Justice Lowry”