Replicating and Perpetuating Inequalities
in Personal Injury Claims Through
Female-Specific Contingencies
Elizabeth Adjin-Tettey”
The author challenges the application of the principle
of restitutio in integrum in awarding tort damages
to
individuals from historically marginalized groups, as it
often results in undercompensation and unfairness between
claimants who
similar
circumstances. The current system works to the detriment
of claimants
from disadvantaged groups as they are
awarded depressed damages by
thereby
sanctioning and
in
society.
their marginalization
the courts,
reinforcing
injuries
similar
sustain
in
The author examines the extent to which issues of
substantive equality are factored into the assessment of
damages for female plaintiffs and identifies the current
methods used for assessing the future income potential of
young female claimants, as well as the factors
that
influence the adoption of a particular approach and its
underlying assumptions. By focusing on the assessment of
damages for the impaired earning capacity of women, the
author explains how
the current system replicates and
perpetuates societal inequities experienced by women and
other marginalized groups by
injustices
inherent to their “original” position.
reinforcing
Rather than reinforcing and perpetuating inequalities,
our compensation system should aspire to eliminate, or at
least mitigate, their effects. Modem tort law should strive
for substantive, rather than formal equality at every stage of
the analysis. The author advocates a principled substantive
justice approach to compensation, which is consistent with
human rights law and the Canadian Charter of Rights and
Freedoms, and which avoids differential valuation of loss
of human potential based on arbitrary and discriminatory
factors as well as stereotypical
assumptions about
marginalized groups.
le
in
integrum dans
L’auteur remet en cause l’application du principe du
cas des groupes
restitutio
historiquement d6savantag6s. D’apris l’auteur, il existe
souvent des injustices et des diffdrences de compensation
entre des
des dommages
semblables subis dans des circonstances semblables. Le
tend A sous-compenser les demandeurs
systime actuel
desavantag6s, ce qui sanctionne en cour et accentue la
marginalisation dont ils souffrent djA.
demandeurs prdsentant
L’auteur examine dans quelle mesure des questions
d’6galitd substantielle sont incluses dans l’6valuation des
dommages-int6r~ts de demandeurs f6minins. Elle identifie
les m6thodes utilis6es A ce jour pour dvaluer les revenus
futurs potentiels de jeunes demanderesses, de m~me que les
facteurs affectant le choix d’une m6thode d’6valuation
particulire et les suppositions qui sous-tendent ce choix. En
se concentrant sur
l’6valuation des dommages-intrts
r6sultant d’une capacit6 salariale diminue chez les femmes,
l’auteur soutient qu’en renforgant les injustices inhrentes t
leur position originelle,, le systme traditionnel r6p~te et
perp6me des indgalit6s sociales qui ddsavantagent les femmes
et d’autres groupes marginaliss.
Selon l’auteur, plut6t que de r6p6ter et perpdtuer des
iniquit6s, notre syst~me compensatoire devrait en 61iminer
les effets, ou du moins les att6nuer. Le droit des torts
devrait aspirer A l’dgalit6 substantielle plut6t qu’A l’dgalit6
formelle A chaque 6tape de son analyse. L’auteur propose
une approche de la compensation fond6e sur des principes
de justice substantielle, conforme aux droits de la personne
et A la Charte canadienne des droits et libertds, et qui dvite
des diffdrences d’appr6ciation de pertes de potentiel
humain
et
discriminatoires et des suppositions
les groupes
marginalisks qui rel~vent du sterdotype.
arbitraires
fond6es
facteurs
des
sur
sur
Faculty of Law, University of Victoria.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill LJ. 309
Mode de r&6rence: (2004) 49 R.D. McGill 309
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
(Vol. 49
Introduction
1. Substantive Equality in Valuation of Impaired Earning
Potential for Female Claimants: Rejecting Restitutio
in Integrum
I1. CurrentTrends in the Quantification of Damages for
Impaired Working Capacity
A. Female-Specific Actuarial Tables
B. Blended or Gender-Neutral Earning Statistics
C. Male Earning Tables
Ill. Implications of Female-Specific Contingency Deductions
for Other Marginalized Groups
IV. Is Tort Law Solely About Corrective Justice?
Conclusion
311
313
316
317
318
322
333
341
347
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311
Introduction
In this article, I focus primarily on the assessment of damages for impaired
earning capacity of women and draw conclusions on how the current regime affects
other historically marginalized groups. I challenge the justice of the principle of
restitutio in integrum as it relates to plaintiffs from equality-seeking groups, which
often results in undercompensation and unfairness among claimants who sustain
similar injuries in similar circumstances. Under the traditional approach the value of a
person’s loss is assessed by reference to what they would have earned in the labour
market, but for their injuries. What is troubling about this process are the bases that
courts have traditionally relied on as a measure of success in the market, such as
gender, race, and family background. The system works to the detriment of claimants
from historically marginalized groups by awarding them depressed damages and by
subsidizing plaintiffs with seemingly more favourable characteristics. By so doing,
the courts sanction and reinforce the marginalization of underprivileged groups in
society. They also project such marginalization into the future. These difficulties are
exacerbated when a claimant lacks educational and/or employment history at the time
of injury that could serve as a benchmark for predicting her future income potential,
which is typical of young plaintiffs.
The traditional view is that tort damages are based on corrective justice. Emphasis
is placed on the plaintiff’s actual loss due to the defendant’s tortious conduct. The
plaintiff must only be restored to her status quo ante. In assessing lost earning
potential courts routinely take account of “realities” that a plaintiff would have
experienced in her working life had she not been injured. Inequalities in earnings that
the plaintiff would have experienced due, for example, to her gender, race, ethnicity,
physical and mental abilities, or sexual orientation must therefore be reflected in the
damages awarded. To do otherwise would arguably run contrary to the goal of tort
damages by making the plaintiff better off because of the defendant’s wrongdoing.
Factors such as financial need or desire for substantive equality’ in light of the
plaintiff’s disadvantaged status in society are thus not relevant considerations in the
assessment of damages.
In support of the traditional approach, it has been argued that quantification of
damages for personal injury is not an appropriate forum for redressing social
Scholars like Cassels and Gibson have argued that in order to achieve substantive equality in
accident compensation, the assessment of damages should be based on need rather than by reference
to the market: Jamie Cassels, “Damages for Lost Earning Capacity: Women and Children Last!”
(1992) 71 Can. Bar Rev. 445 at 489 [Cassels, “Women and Children Last”]; Elaine Gibson, “The
Gendered Wage Dilemma in Personal Injury Damages” in Ken Cooper-Stephenson & Elaine Gibson,
eds., Tort Theory (Toronto: Captus Press, 1993) 185 at 209-11 [Gibson, “Gendered Wage Dilemma”]
(arguing that whereas post-accident needs should undoubtedly determine recovery for cost of future
care, they should not be the basis for assessing the value of lost productivity).
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injustices because, among other reasons, it is contrary to the restitutio in integrum
principle that informs tort damages. As well, departures from the traditional position
would produce unjust results for defendants, and also as between claimants.
Traditionalists have also questioned why individual defendants have to bear the cost
of redressing societal problems that are not only pervasive but predate the defendant’s
encounter with the plaintiff. This line of reasoning underlies practices such as reliance
on female earning statistics to predict the income potential of female claimants and
discounting awards for female-specific contingencies
to reflect the “reality” of
women’s lives. Ostensibly, the dominant position is intended to ensure fairness,
predictability, and uniformity in compensation for impaired working capacity.
I argue that the traditional method of damage quantification is detrimental to the
interests of disadvantaged groups because it achieves only formal equality while
revictimizing marginalized groups. It also replicates and perpetuates societal
inequities experienced by marginalized groups, including bias in the market, by
reinforcing injustices inherent to their so-called original position through depressed
awards to the benefit of tortfeasors or, more accurately their insurers. Yet social and
economic disadvantage is not invoked to argue that equality-seeking groups should
pay less for goods and services generally or lower damages awards when they are
tortfeasors. Social reformers have denounced the revictimization of disadvantaged
groups in the assessment of damages, mostly in relation to female claimants and, to
some extent, racial minorities.2 Also, there does appear to be some optimism about
judicial reform to eliminate discriminatory practices in the assessment of damages in
personal injury claims.’
The objectives of this article are to: (1) examine the extent to which issues of
substantive equality are factored into the assessment of damages for female plaintiffs,
(2) identify current methods for assessing future income potential for young female
claimants and, (3) identify both the factors that influence the choice of a particular
approach and the assumptions underlying that choice. Although there have been some
positive developments in the quantification of damages for lost productivity for young
female claimants and female plaintiffs generally, this has largely been in line with
statistical predictions about women’s labour force participation. I also explore the
implications of these developments for women’s equality and their effect on other
equality-seeking groups. I point to some internal inconsistencies in the statistical
2 See e.g. Cassels, “Women and Children Last”, ibid.; Gibson, “Gendered Wage Dilemma” ibid. at
209-11; Elaine Gibson, “Loss of Earning Capacity for the Female Tort Victim: Comment on
Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital” (1994) 17 C.C.L.T. (2d) 78 [Gibson,
“Comment on Toneguzzo-Norvel”]; Elizabeth Adjin-Tettey, “Contemporary Approaches
to
Compensating Female Tort Victims for Incapacity to Work” (2000) 38 Alta. L. Rev. 504.
3 See e.g. Jamie Cassels, “(In)Equality and the Law of Tort: Gender, Race and the Assessment of
Damages” (1995) 17 Advocates’ Q. 158 at 177-90 [Cassels, “Gender, Race and the Assessment of
Damages”]. The author observes that courts have begun to be sensitive to the problem of gender bias
in the assessment of damages in personal injury cases.
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313
in
to disadvantage female claimants
the
predictions framework that continue
assessment of damages. Although courts recognize the changing role of women in the
labour market due mostly to educational attainment, they sometimes ignore other
developments in society that also enhance women’s participation in paid employment.
Similarly, courts have not given sufficient attention to the possibility of plaintiffs from
disadvantaged groups achieving higher socio-economic status than their predecessors.
As well, using statistical predictions in the quantification of damages focuses on
formal equality because of their reliance on the current organization of society
without recognizing the effect of discrimination on equality-seeking groups. This
methodology is inconsistent with the growing awareness of the importance of
substantive equality in tort litigation. I recognize the difficulties in convincing courts
to completely reject the compensatory principle of restitutio in integrum, at least in
relation to older claimants with established work records or a sufficient indication of
the same. I argue however, that there is no reason to make predictions about a young
plaintiff’s future income potential based on her gender, race, or socio-economic
background. I favour the use of average earnings, at least with respect to young
claimants. Before exploring these issues in detail, I briefly canvas some arguments for
substantive equality and what an egalitarian computation of damages would entail.
This discussion will be a benchmark for determining the extent to which any of the
current methods of valuation achieves distributional goals, if at all.
I. Substantive Equality in the Valuation of Impaired Earning
Potential for Female Claimants: Rejecting Restitutio in Integrum
Proponents of reform have called for a rejection of reliance on the principle of
restitutio in integrum in the assessment of lost earning potential.4 The argument is that
since the so-called original position of some claimants is discriminatory, which is
typical for most female claimants, a strict adherence to the principle of restitutio in
integrum perpetuates their disadvantaged status in society and should be rejected. The
traditional approach values a person’s loss based on the socio-economic status they
would have achieved in society, but for their injury. The differential outcome seems
inevitable so long as compensation for lost earning capacity continues to be
individualized, and it is believed that there are differences in ability among human
4 See e.g. Cassels, “Gender, Race and the Assessment of Damages” ibid.; Cassels, “Women and
Children Last” supra note 1; Ken Cooper-Stephenson, “Damages for Loss of Working Capacity for
Women” (1978-79) 43 Sask. L. Rev. 7; Gibson, “Gendered Wage Dilemma” supra note 1; Gibson,
“Comment on Toneguzzo-Norvell”, supra note 2; Martha Chamallas, “The Architecture of Bias: Deep
Structures in Tort Law” (1998) 146 U. Pa. L. Rev. 463 [Chamallas, “Architecture of Bias”]; M.
Chamallas, “Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort
Litigation: A Constitutional Argument” (1994) 63 Fordham L. Rev. 73 [Chamallas, “A Constitutional
Argument”]. See also Ken Cooper-Stephenson with Iwan Saunders, Personal Injury Damages in
Canada, 2d ed. (Toronto: Carswell, 1996) 288-349 [Cooper-Stephenson & Saunders, Personal Injury
Damages in Canada] who also promote a more progressive method of damage assessment.
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beings. Also, the individualized assessment is a function of reliance on the market as
the basis for the computation of damages. A lasting solution would be to simply
ignore the market altogether in the valuation of lost earning capacity, in favour, for
example, of conventional sums based on the nature and extent of disablement.
Cassels, one of the chief proponents of reform in the computation of damages for lost
earning capacity, would prefer complete abandonment of reference to the market, but
recognizes that this might be problematic and is unlikely to gain judicial support, at
least in the short-term. Ultimately, he advocates modest reforms aimed at eliminating
the objectionable aspects of the current system and giving appropriate recognition to
the steady narrowing of wage differentials between men and women! This article
moves the debate forward by challenging some of the contradictions within the
current system. I point out the detrimental effects of these inconsistencies on female
claimants as well as how they affect other equality-seeking groups.
A truly egalitarian computation of damages for female claimants would be one
that focuses on the plaintiff’s injury. Persons injured in similar circumstances and/or
who sustain similar injuries should be compensated at the same level without
reference to statistical predictions about the particular plaintiff’s future income
potential and without discounting the award for contingencies seemingly based on the
“realities” of the claimant’s preaccident situation. In the context of female claimants,
this would mean using male earning statistics or, more appropriately, common
statistics for all claimants and without discounting the award to reflect women’s lower
labour force participation rates. To do otherwise sanctions and perpetuates historical
inequities between men and women’s earnings and systemic factors that militate
against women and other marginalized groups in the labour market and society
generally.! In Cho v. Cho,7 involving a brother and sister who sued their mother for her
physical and emotional abuse of them when they were children, the Ontario Superior
Court of Justice adopted an egalitarian approach, at least in relation to gender as
between siblings, in assessing their potential income loss due to the abuse. Molloy J.
‘ See Cassels, “Women and Children Last”, supra note 1 at 485, 489; Cassels, “Gender, Race and
the Assessment of Damages”, supra note 3 at 182, 184. See also Cooper-Stephenson & Saunders,
Personal Injury Damages in Canada, ibid. at 295-98.
6 Some advocates of reform support using gender-neutral earning statistics for both male and female
claimants. See Chamallas, “A Constitutional Argument”, supra note 4 at 123; Tsachi Keren-Paz, “An
Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of Randomness”
(2003) 16 Can. J.L. & Juris. 91. I do not necessarily share this view because, as will be shown
subsequently in this article, blended statistics can in fact result in undercompensation. Among other
things, this is because those statistics include the depressed incomes for disadvantaged groups,
including women, and therefore the ultimate figures may not be a true reflection of the income
potential of members of that group. The situation would be different if it was not only accepted that
higher levels of income for men are earned at the expense of women but that they are also inflated, in
which case the blended statistics would be a true reflection of the income potential of members of the
relevant group.
‘ (2003), 36 R.F.L. (5th) 79 (Ont. Sup. Ct. J.) [Cho].
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rejected statistical projections that assume that males earn more than females,
notwithstanding evidence that the male plaintiff had actually earned more money than
his sister at the time of judgment. The court determined that based on their family
history of academic excellence both plaintiffs would have attained at least community
college degrees. They were each awarded the same amount for impaired earning
capacity.! The decision may be of limited value for other equality-seeking groups,
however, because it is not clear whether the same approach would be adopted in relation
to other claimants regardless of socio-economic background or the plaintiff’s likely
educational attainment.
Another case that comes close to an egalitarian computation of damages is Audet
(Guardian ad litem of) v. Bates. The female plaintiff suffered cerebral palsy due to
being asphyxiated during birth. The court was presented with statistical evidence of
the present values of future earnings for men and women of the plaintiff’s age who
obtained a university degree, and those who obtained at least one year of post-
secondary education. In rejecting the substantially lower female earning statistics as
the appropriate measure of the plaintiff’s loss, Pitfield J. stated: “I see no logical or
compelling reason to differentiate between male and female earning capacity when
making an assessment in relation to an infant whose work and education prospects
cannot be identified or characterized with any precision.””‘ The court assessed her loss
based on average earnings for male university graduates and those with two years
post-secondary non-university education.
The court did not explicitly give any reasons for the assumption that the plaintiff
would have pursued post-secondary education. Unlike cases such as Cho, where
courts rely on the educational and/or vocational attainment of the plaintiff’s family
members as a proxy for their loss, there was no reference to such factors to justify the
court’s choice of income statistics in Audet. This, together with the refusal to use
female earning statistics, would seem to connote a truly egalitarian approach.
However, Pitfield J.’s reference to emerging community standards in his reasoning
suggests that he was partly basing the decision on the trends of growing numbers of
women pursuing post-secondary education and on wage parity initiatives from which
the plaintiff would have benefited in the future. He stated:
There is good reason to subscribe to the opposite view which is that in the
context of emerging community standards, an infant who is female will be
‘Ibid. at 106.
‘[1998] B.C.J. No. 678 (S.C.) (QL) [Audet].
0 Ibid. at para. 76. For similar reasoning, see the trial decision in Tucker (Guardian ad litem of) v.
Asleson (1991), 86 D.L.R. (4th) 73, 62 B.C.L.R. (2d) 78 (S.C.), varied (1993) 102 D.L.R. (4th) 518,
[1993] 6 W.W.R. 45, 78 B.C.L.R. (2d) 173 (C.A.) [Tucker cited to D.L.R.], where the court noted that
the income potential of an eight-year-old rendered unemployable should not be limited based on her
sex.
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afforded the opportunity in the course of her working life to earn income at the
same level as an infant who is a male.’
The decision shows recognition of the changing place of women in the labour
market and
is supported by the statistical predictions approach rather than a
commitment to substantive equality in damages assessment per se. Consistent with
the statistical predictions approach, Pitfield J. deemed it appropriate to make female-
specific contingency deductions to reflect the possibility that the plaintiff “might
choose to marry and raise a family,”‘2 and thereby interrupt her employment. This
aspect of the decision will be explored below.
Notwithstanding these criticisms, both Cho and Audet are remarkable decisions
because they provide a glimpse of what an egalitarian computation of damages might
look like. One can still question the court’s choice of the likely educational level that
the plaintiff would have attained in Audet and reliance on family background to
determine the plaintiffs’ likely educational and vocational achievements in Cho. These
criticisms illustrate some of the constraints of a truly egalitarian approach to the
assessment of damages for personal injuries that will exist so long as the assessment is
made in reference to the capitalist market.
II. Current Trends in the Quantification of Damages for Impaired
Working Capacity
To date, some courts have recognized that women have been disadvantaged in the
labour market through depressed incomes and have resisted replicating
these
injustices in awarding damages for lost earnings. Similarly, historical female earning
statistics are no longer considered satisfactory predictors of future losses of most
female claimants, especially younger claimants. 3 The case law shows at least three
methods for assessing lost income potential in personal injury cases: (1) female
earning statistics, (2) blended earning statistics (gender-neutral), and (3) male earning
tables. I will analyze the various methods, including factors that influence the choice
of a particular approach, the assumptions underlying the choice, and whether the
approach is aimed at substantive equality for female claimants and other equality-
seeking groups. I argue that emphasis on statistical predictions and the “reality” of
women’s situations does not adequately reflect the changing position of women in
‘Audet, supra note 9 at para. 76.
2Ibid. at para. 79.
” Given pay equity initiatives and increasing labour force participation rates among women, it is
believed that some female plaintiffs will enjoy income parity in the course of their working lives, and
therefore valuation of their loss should reflect this possibility. As well, it is recognized that some
women will have earnings that are comparable to men because they will choose “traditional” male
occupations and/or follow “typical” male work patterns, and should therefore be compensated
accordingly.
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society. As well, it fails to challenge stereotypical assumptions about women. To the
extent that the assessment of damages continues to be influenced by notions of formal
equality, this does not bode well for other equality-seeking groups for whom there is
no discernible evidence of improving socio-econonic conditions.
A. Female-Specific Actuarial Tables
Although some courts insist on using female-specific earnings data to assess
future income loss because it most appropriately reflects a plaintiff’s loss, they
sometimes gross up the awards because these statistics may not adequately reflect
women’s income profiles in the future. Greater female participation in the labour
force and the possibility of wage parity due to pay equity initiatives are commonly
cited in support of this practice. This could be perceived as progressive, at least to the
extent that it does not countenance occupational segregation and recognizes that
women can earn incomes comparable to their male counterparts doing similar jobs.
in
the future
The possibility of higher earnings
is considered a positive
contingency and may be based on statistical predictions about women’s pay in
particular occupations or the actual situation of particular claimants.” There is
therefore no automatic “top up” of damage awards based on the possibility of women
earning higher incomes in the future. Enhancement is at the court’s discretion,’5 and
depends on the strength of the plaintiff’s case. The evidence necessary to justify
enhancement can cause further delays and additional costs for the expert testimony
required to discharge the plaintiff’s evidential burden. The process also introduces
further uncertainty into the computation of damages, without any guarantee that it will
yield positive results for the plaintiff. To eliminate the guesswork in this regard,
perhaps men’s income should be used as a proxy, especially in claims involving very
young children, if indeed it is believed that this is the ultimate position of fairness that
women should achieve as a matter of substantive equality.
Plaintiffs with a relatively shorter period of loss have sometimes been denied a
top up because, while wage convergence might occur in the future, it would not occur
quickly enough to benefit the claimant during the period of her loss. 6 This
‘4 See Rewcastle Estate v. Sieben (2001), 296 A.R. 61 at 81, [20011 10 WW.R. 700 (Q.B.), rev’d in
part (2003) 17 C.C.L.T. (3d) 286 (C.A.) [Rewcastle cited to A.R.].
‘” See Adjin-Tettey, supra note 2 at 516; see also Gray v. Macklin (2000), 4 C.C.L.T. (3d) 13 at 64-
65 (Ont. Sup. Ct. J.) [Gray].
,6 In S.M.A.B. v. J.N.H., [1991] B.C.J. No. 3940 (S.C.) (QL) [S.MA.B.], the plaintiff was a survivor
of sexual abuse who sought damages for, among other things, diminished earning capacity due to the
abuse. The period of her loss was relatively short. The court accepted that the disparity between male
and female incomes will narrow in the future but that it would not occur quickly enough to benefit the
plaintiff during the period of her loss. Thackray J. therefore stuck to female wage statistics of the
plaintiff’s anticipated earning potential, with a slight upward adjustment to reflect the “progression in
female incomes” (at para. 21).
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presupposes a judicial mindset that unless there is evidence to the contrary, female
earning statistics are the appropriate measure of loss for female claimants. This
attitude condones discrimination against women both in the market and in society
generally. It also assumes that even if women attain the same educational achievement
as men, they will work in “traditional” female occupations where wages are
depressed, and that even if they choose the same or similar vocations as their male
counterparts, they will continue to earn less.
Average female statistics are the net of all the so-called negative female
contingencies, including labour force non-participation rates compared to men. This
means that where female earning tables are used as a proxy for the plaintiff’s loss, it
would be inappropriate to discount the award for female-specific contingencies, such
as withdrawal from the labour market for family reasons. Yet in some recent cases,
courts have made such deductions even when using average female earnings.
Crawford (Guardian ad litem of) v. Penney’7 is one such case. The plaintiff was born
with serious disabilities that rendered her unemployable. The court accepted that she
would have completed a community college program had she not been injured. It used
average earnings of all employed females who work full-time on a full year basis as a
measure of the plaintiff’s loss. It noted that female-specific contingencies are already
built into the female earning statistics and that some of the income loss anticipated
from labour market interruptions would be offset by other factors such as income
replacement schemes. Notwithstanding these observations, the court applied a ten per
cent female-specific contingency deduction. Since there was no evidence of the
plaintiff’s actual career path, it was inappropriate for the court to have assumed that
she would have pursued a “traditional” female career or “typical” female work
pattern. Leaving aside the question of the plaintiff’s likely educational attainment, she
could have pursued any career open to community college graduates. The court
should therefore have at least adopted blended income statistics, that is, average future
income of community college graduates of the plaintiff’s age.”
B. Blended or Gender-Neutral Earning Statistics
Increasingly, some courts are using average earnings for particular segments of
society as a proxy for assessing income loss in personal injury cases. They tend to use
blended average statistics where they recognize the possibility of wage parity in the
future, but do not have sufficient evidence to determine the rate of progression, when
(2003), 14 C.C.L.T. (3d) 60 at 145-46 (Ont. Sup. Ct. J.) [Crawford].
In Rewcastle, the court used the average income of females with undergraduate degrees as the
appropriate measure of the deceased’s lost future income, but still discounted the award by 15 per cent
to reflect the contingency that the deceased would have withdrawn from the labour market for family
reasons as is typical of women who choose to have families (supra note 14 at 77). The Alberta Court
of Appeal affirmed the assessment of lost future income although it varied some aspects of the trial
decision.
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the wage gap will be eliminated completely, or both.9 Courts have also used blended
statistics where there is a general agreement about the claimant’s potential educational
attainment had she not been injured, but there is insufficient evidence about her actual
future career path, as in Walker v. Ritchie,” a case involving a seventeen-year-old
grade twelve student. The court adopted statistical figures that reflected average
earnings of university graduates in Ontario. The court recognized that it was quite
likely that Stephanie Walker would have completed university education had she not
been injured. Her actual future career path was, however, uncertain at the time of the
accident. Since the court could only make educated guesses about her preaccident
career path, it was deemed appropriate to use the average income of the group of
which she might have been a part.’ Brockenshire J.’s justification of the use of
blended statistics was that it allows the court to avoid having to choose between male
and female earning tables and then making the necessary adjustments, upwards or
downwards, to mirror the plaintiff’s anticipated earning potential.”2 The English Court
of Appeal has expressed support for reliance on average statistics
in similar
circumstances. 3
Ostensibly, using blended income statistics is progressive because, among other
things, it acknowledges gender inequality in historical earning data and reflects a
desire to reverse
that pattern. As well, there are usually no female-specific
contingency deductions when courts use this approach.’ The use of blended statistics
for women is not a satisfactory solution, however, as the female side of the equation
” See e.g. Shaw (Guardian ad litem of) v. Arnold, [1998] B.CJ. No. 2834 (S.C.) (QL) [Shaw],
where a 15-year-old girl sustained permanent brain injury from a motor vehicle accident. Collver J.
concluded that but for the accident, the plaintiff would have completed a modelling course or a one or
two year post-secondary certificate course. The court recognized that the wage gap between males
and females was narrowing but not completely eliminated, and preferred to assess the value of the
plaintiff’s loss based on the projected mean average lifetime earnings of persons of the plaintiff’s age
with post-secondary, non-university education (ibid. at paras. 66-69). See also Morris v. Rose Estate,
[1993] B.CJ. No. 2679 (S.C.) (QL), aff’d (1996) 23 B.C.L.R. (3d) 256 (C.A.) [Morris].
20 [2003] O.J. No. 18 (Sup. Ct.) (QL) [Walker]. The Walker decision was heralded as a
breakthrough, and by implication, a victory for female personal injury victims. See John Jaffey,
“Judge Uses Gender-Neutral Wage Loss Tables in Case of Severely Injured Schoolgirl” The Lawyers
Weekly 22:35 (24 January 2003) 1 (QL). While the use of blended statistics may be new in Ontario, it
is not so new in other jurisdictions. For instance, courts in British Columbia have used this approach
at least since the 1990s. See also S.M.A.B., supra note 16; Morris, ibid.; Shaw, ibid.
2 E-mail communication from Mr. Ian Wollach of Rich Rotstein, Chartered Accountants, (7 May
2003) who appeared as an expert witness for Stephanie Walker, emphasized that the use of the
blended male and female statistics in that case was influenced by the uncertainty about Stephanie’s
future career path at the time of the accident. He indicated that they might have used female tables
had the circumstances been otherwise.
22 Walker, supra note 20 at para. 135.
23 Herring v. Ministry of Defence, 2003 EWCA Civ 528 at para. 24 (BAILI) [Herring].
21 Since negative female specific contingencies are already included in the female component of
blended statistics, any further deduction would in fact be double counting.
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is discriminatory because male plaintiffs continue
continues to be gendered. Assumptions about women and their labour force
participation rates remain unchallenged. Further, using blended statistics solely for
female claimants
to be
compensated at higher rates since male-specific statistics are used in the case of male
plaintiffs. Using common statistics for both male and female claimants would be a
better solution, but so far, courts have been reluctant to do so even in respect of young
male plaintiffs.’ While the use of average income may benefit some members of
historically disadvantaged groups, it could actually undercompensate others. A case in
point is Wheeler Tarpeh-Doe v. United States,26 involving a biracial plaintiff. The court
adopted average income of all college graduates without regard to race or sex as the
appropriate measure of the plaintiff’s loss. This resulted in an award that was even
less than what the defendant had suggested based on average earnings for Black
males. In commenting on this case, Mclnnes notes that while the plaintiff was spared
“the detrimental consequences of being non-white, he was also denied the beneficial
consequences of being non-female,”27 and presumably the beneficial consequences of
his white heritage.
Average incomes also undercompensate those who would have fared better than
that income level had they not been injured. In the interest of fairness, however, and
given the fact that differential income status is sometimes caused by systemic
discrimination, it would be appropriate for courts to assume that a plaintiff would
have at least achieved the average income potential of her group where appropriate, or
the average income in the province where there is no relevant group to be used as a
proxy for her loss.
The use of average statistics is based on reasonable predictions about the
plaintiff’s future income potential using labour market indicators, which is in turn
premised on an assumption that the gender wage gap is due principally to labour
market characteristics. The narrowing of the gender wage gap is attributed
to
increases in women’s human capital, due mostly to higher educational attainment,
work experience, increased labour force participation, and job tenure. 8 It is therefore
” See e.g. Gordon (Next friend ol v. Hannon (1999), 246 A.R. 305 (Q.B.) [Gordon], involving a
boy severely injured at the age of seven. The court simply referred to his likely educational attainment
had he not been injured and adopted the average earnings of males with post-secondary education.
26 771 ESupp. 427 (D.D.C. 1991).
27 Mitchell Mclnnes, “The Gendered Earnings Proposal in Tort Law” (1998) 77 Can. Bar Rev. 152
at 174.
28 This
in the economics
is the predominant view
literature. See e.g. Jane Waldfogel,
“Understanding the ‘Family Gap’ in Pay for Women with Children” (1998) 12:1 J. Econ. Persp. 137;
Jian Cao, Ernst S. Stromsdorfer & Gregory Weeks, “The Human Capital Effect of General Education
Development Certificates on Low Income Women” (1996) 31 J. Hum. Resources 206; Richard J.
Mumane, John B. Willett & Frank Levy, “The Growing Importance of Cognitive Skills in Wage
Determination” (1995) 77 Rev. Econ. & Stat. 251; Michael P Kidd & Michael Shannon, “An Update
and Extension of the Canadian Evidence of Gender Wage Differentials” (1994) 27 Can. J. Econ. 918
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expected that the wage gap will be completely eliminated in due course, as women’s
educational attainment and labour force participation continues to catch up with those
of men. Labour market factors do not, however, fully explain the wage gap. Despite
increases in women’s educational attainment and labour force participation, complete
wage parity has not been achieved, even between younger men and women. 9
According to the 2001 census data, occupational segregation is still prevalent among
university graduates between the ages of twenty-five and twenty-nine. Economists
note that although wage convergence is expected to continue over the next thirty
years, it will be at a slower rate compared to the experience of the past three decades,
notwithstanding the increasing number of women pursuing higher education.’
The continued gender difference is often attributable to factors such as personal
and occupational preferences arising, among other things, from different fields of
study with the concentration of women in low paying sectors of the economy and
intermittent participation in the labour market. What is often masqueraded as personal
preference, however,
influenced by systemic discrimination and
stereotypical gender roles, by which women’s choices are constrained by their
socially constructed primary caregiving responsibilities within the family.” Labour
market discrimination is also to blame for certain “choices” that women make. As
Joan Williams observes, the culture and expectations in most well paid jobs are such
that women tend not to fare well in those settings because of their real or perceived
is usually
[Kidd & Shannon, “Gender Wage Differentials”]; Solomon William Polachek,
at 922-23
“Occupational Self-Selection: A Human Capital Approach to Sex Differences in Occupational
Structures” (1981) 63 Rev. Econ. & Stat. 60. See also the 2001 census data from Statistics Canada,
which suggests that the increasing numbers of educated women in the labour force accounts largely
for the narrowing of the gender wage gap: online: Statistics Canada
[Statistics Canada 2001 census
data].
” For instance, the number of women in the work force with university degrees in Canada has
almost tripled since 1980, yet female university graduates between the ages of 25 and 29, working
full- time for the full year, earned slightly more than 81 cents for every dollar earned by their male
counterparts. Women with high school education working full-time for the full year, earned 77 per
cent of what their male counterparts made. See Statistics Canada 2001 census data, supra note 28 at
10.
30 Kelly Rathje, “Male Versus Female Earnings-Is the Gender Wage Gap Converging?” The
Expert Witness Newsletter 7:1 (Spring 2002), online: Economica Ltd.
Gap 2001-2031: Will an Increase in Female Education Acquisition and Commitment Be Enough?”
(2001) 28 Can. Pub. Pol’y 447.
3 Although some economists recognize that women’s occupational choices may be influenced by
systemic discrimination outside the labour market, they are reluctant to accord this significant weight
in explaining occupational segregation and/or the gender wage gap. For example, see Kidd &
Shannon, “Gender Wage Differentials”, supra note 28 at 929; Christopher J. Bruce, “MacCabe v.
Westlock: The Use of Male Earnings Data to Forecast Female Earning Capacity” (1999) 37 Alta. L.
Rev. 748 at 749-58. See also Shaw, supra note 19 at para. 67.
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roles as primary caregivers.” This prevents them from becoming or being perceived as
ideal workers and they are therefore less attractive to employers in those sectors.”
Further, Williams notes that the extent of time commitment expected of the “ideal
worker” is possible only if that worker can benefit from a stream of reliable
housework from another person, usually a female partner. For the most part, women
cannot count on such a flow of housework to enable them to function as ideal workers
in the marketplace, unless they hire nannies. Women’s inability to fit that mould
therefore becomes a disincentive to participation in the market in the first place, or
when they do, they are often relegated to the “mommy track” and are therefore unable
to match the performance and income of men.
In summary, notwithstanding its initial appeal, the use of blended incomes for
female claimants
is not a satisfactory solution to gender discrimination in the
assessment of future income loss. It is based on statistical predictions and uncritically
accepts historical discrimination against women and assumptions about their work
patterns as the “reality” of women’s lives. Given the speculative nature of future
losses, it would be preferable to apply the same standard to all plaintiffs, particularly
in respect of young claimants with no reasonable indication of future earning potential
at the time of their injury.
C. Male Earning Tables
Courts have also used male earning statistics because they are believed to be free
of gender bias and/or offer a better prediction of a particular claimant’s future income
profile. The courts tend to favour this approach where there is sufficient evidence
about the plaintiff’s career choice and/or that her income would have been
comparable to male earnings. Use of male earning statistics seems to support
substantive equality, as courts tend to denounce the historical discrimination against
women both in the labour market and in the assessment of lost earnings when
adopting this approach. Like the blended income approach, however, the choice is
influenced by labour market statistical predictions based on individual characteristics
of a particular claimant, including family background and evidence of her likely
labour force participation rate, rather than a desire for substantive equality
simpliciter.’
32 Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It
(New York: Oxford University Press, 2000).
33 Ibid.
3,For example, see Gray (supra note 15 at 66) where the plaintiff was in grade nine at the time of
injury. The court found that she was an average to above average student, would likely have obtained
a college diploma after high school, and would have earned the average income of a college graduate.
Shaughnessy J. noted that wage discrimination is deplorable and should not be sanctioned by the
courts. He applauded trends to narrow and eventually close the wage gap between men and women.
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In MacCabe v. Board of Education of Westlock Roman Catholic Separate School
District No. 110,” Johnstone J. rejected the gendered assessment of damages. She
adopted male earning statistics as the appropriate measure of the plaintiff’s loss. She
also refused to make female-specific contingency deductions despite the plaintiff’s
intentions to have children and the pattern of significant withdrawal from the market
following childbirth in her family. This was, however, successfully challenged on
appeal. Johnstone J.’s position was ostensibly motivated by a desire for social justice
in the assessment of damages.” Notwithstanding her unwillingness to countenance
gender discrimination in the quantification of damages, the assessment seems to have
been influenced by predictions about the plaintiff’s career path and the likely nature
of her attachment to the waged labour force had she not been injured, which
Johnstone J. found to be comparable to her male counterparts. As well, she noted that
the plaintiff would likely have worked in settings where pay equity is mandated.
Based on those predictions, male earnings in her chosen profession were therefore an
appropriate proxy for her loss, a conclusion that the Court of Appeal supported. The
refusal to make female-specific contingencies, which was heralded as the most
progressive aspect of the decision, and was incidentally successfully challenged on
appeal, was arguably at least in part based on statistical predictions about the nature of
women’s participation in the labour market. Johnstone J. referred to evidence of
increasingly limited withdrawal from the market by women following childbirth,
especially highly educated women, to justify this position.
MacCabe underscores the observation that male earning statistics are used only
where it is found to be appropriate in respect of a particular claimant. In Osborne
He chose to use male earning statistics as a proxy for the plaintiff’s loss. See also Terraciano
(Guardian ad litem) v. Etheridge, [1997] 7 W.W.R. 185 at 206-207, 33 B.C.L.R. (3d) 328 (S.C.)
[Terraciano cited to W.W.R.], where a 16-year-old was rendered a paraplegic in a motor vehicle
accident. The court rejected the defendant’s proposal that average female earnings were an
appropriate measure of the plaintiff’s loss. Saunders J. strongly condemned the gender discrimination
in the assessment of damages for lost working capacity. Her ultimate assessment of the plaintiff’s
damages seemed however, to have been influenced by her individual characteristics and family
background that suggested that her labour force participation would have been comparable to that of
her male counterparts. In M.B. v. British Columbia, [2000] B.C.J. No. 909 (S.C.) (QL), rev’d in part
on other grounds (2001), 197 D.L.R. (4th) 385, [2001] 5 W.W.R. 6 (C.A.), rev’d in part on other
grounds (2002), 211 D.L.R. (4th) 295, [2002] 5 WW.R. 327, rev’d on other grounds (2003), 230
D.L.R. (4th) 567, 2003 SCC 53, in refusing to use male earning statistics, the court noted that there
was no evidence to support reliance on the approach adopted in Terraciano (ibid. at par. 307).
31 (1998), 226 A.R. 1, [1999] 8 W.W.R. 1 (Q.B.), rev’d in part (2001), 293 A.R. 41, [2002] 1
W.W.R. 610 (C.A.) [MacCabe (Q.B.)]. See also Kemp v. Wittenberg (2001), 87 B.C.L.R. (3d) 350,
2001 BCCA 687 (C.A.), leave to appeal to S.C.C. refused, [2003] 1 S.C.R. xii.
36 See Bruce, supra note 31 at 768, who observes that the decision reflected an egalitarian
approach to the computation of damages. See also Derek Aldridge, “The MacCabe Judgment:
Allowing the Use of Earnings Statistics for Males when Estimating the Future Income of a Female”
The Expert Witness Newsletter 3:3 (Autumn 1998), online: Economica Ltd.
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(Guardian ad litem of) v. Bruce (County),” the court rejected the plaintiff’s contention
that given current pay equity initiatives and the narrowing of the wage gap between
men and women, male earnings were a better measure of her lost future income.
O’Connor J. stated:
The plaintiffs argue that the incomes of females will increase faster in the
future as greater parity between male and female incomes is achieved through
legislative initiatives in pay equity. They say male rates should be used to
calculate Rachel’s loss of future income. I disagree. There has been and there
will continue to be a narrowing of the gap between male and female incomes.
However, the plaintiffs produced no evidence as to the rate at which this change
is happening and when full parity might be achieved. I would decline to
speculate in this area without more substantial evidence. 8
The application of female-specific contingencies is intended to reflect lower
female labour force participation rates 9 and uncertainties regarding when the gender
wage gap will be eliminated.’
In MacCabe, the Alberta Court of Appeal applied
contingencies that would have affected the plaintiff’s earning profile. As noted above,
the Court of Appeal did not question the appropriateness of using male earning
statistics in this case, given the evidence of the plaintiff’s career path. The court
found, however, that based on statistical predictions, or what the court referred to as
the “reality” of the plaintiff’s situation, her lifetime earnings would not have matched
that of her male counterparts. The court reasoned that women tend to have lower
labour force participation rates than men because of their family responsibilities, and
therefore, discounting women’s awards to reflect that “reality” is justified.” Wittmann
J.A., speaking for a unanimous court stated:
Determination of negative contingencies based upon a classification
according to sex is not unreasonable in these circumstances. The situation is
analogous to the use of actuarial tables based on sex, age or marital status to
determine insurance premium rates for drivers of motor vehicles … [T]he
(1999), 39 M.V.R. (3d) 159 (Ont. Ct. . (Gen. Div.)) [Osborne].
38Ibid. at 182-83. See also Bauer (Guardian ad litem oJ) v. Seager (2000), 147 Man. R. (2d) 1 at 81,
[2000] 11 W.W.R. 621 (Q.B.) [Bauer], where the court declined to use male wage tables as suggested
by the plaintiff. The court recognized the current trend toward wage convergence for males and
females and the likelihood of its continuation, with the result that female incomes will probably be
comparable to average male earnings in the future. Despite this recognition, the court refused to use
male earning tables as a proxy for the plaintiff’s loss, because there was insufficient evidence in this
case to reflect the current trend.
” For example, see Tucker, supra note 10; B.I.Z v. Sams [1997] B.C.J. No. 793 (S.C.) (QL);
Mozersky v. Cushman, [1997] O.J. No. 4912 (Ont. Ct. J. (Gen. Div.)) (QL); MacCabe v. Board of
Education of Westlock Roman Catholic Separate School District No. 110 (2001), 293 A.R. 41 (C.A.)
[MacCabe (C.A.)].
o Gray, supra note 15 at 66.
“‘ MacCabe (C.A.), supra note 39 at paras. 90, 103-104, 127.
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application of female contingencies would not perpetuate or sanction historical
and societal discrimination. 4
To ignore this reality, according to the Court of Appeal, would be to inflate the plaintiff’s
loss at the defendant’s expense, contrary to the principle of restitutio in integrum.
Similarly, in Spehar v. Beazley,”3 where a sixteen-year-old plaintiff sustained
catastrophic injuries in a car accident, the court used average earnings for males with
a university degree in British Columbia as a proxy for her loss, subject to a female-
specific contingency in respect of her first fifteen years in the labour market, in order
to avoid overcompensation. In the court’s view, failure to do so would ignore the
plaintiff’s particular characteristics as a woman, and the likelihood that her labour
force participation rate would be lower than the average. Koenigsberg J. noted:
She is a woman who based on her own personality and her family background
and history would likely have had at least one child and perhaps more than one.
She would likely take time out of the labour force to raise children to school
age. She is also likely to be the spouse who would bear the brunt of time off to
deal with family emergencies. 44
Unlike in MacCabe, there does not appear to be any concrete evidence to support the
court’s assessment of the nature of the plaintiff’s attachment to the work force, other
than her family background and the fact that she is female.
Female-specific discounts may be made in addition to general contingency
deductions for labour force interruptions. In Gray, the court adopted male income
data and applied a twenty per cent general contingency for the general population,
plus a further ten per cent female-specific contingency deduction for the gender wage
gap. Notwithstanding the progressive position adopted in Gray, the court still found it
appropriate to make a ten per cent female-specific contingency deduction “to reflect
that wage parity has not yet been achieved for females, and will likely not be achieved
for several more years.”” This is double counting for the same labour force
interruptions. The general non-participation contingency deduction takes account of
reasons why both men and women would not earn any income for parts of their
productive years. If one assumes that for women some of these interruptions or career
changes might be due to their caregiving responsibilities, which also partly explains
the income gap between men and women, there is no justification for making a
separate deduction for the fact that wage parity has not yet been achieved. In
criticizing the deductions in Gray as unfair, Koenigsberg J. stated:
2 Ibid. at paras. 94, 124.
41 [2002] B.C.J. No. 1718 (S.C.) (QL) [Spehar].
” Ibid. at para. 47. See also Audet, supra note 9 at para. 79, where the court expressed that there was
a real likelihood that the plaintiff would have interrupted her work because she would have married
and raised a family.
4′ Gray, supra note 15 at 66.
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[I]n my view there is no basis for deducting 10 percent or any other number as
a negative contingency for a catch-up in wage parity … even if one could make
a case for such a deduction philosophically. The application of the general
contingency deduction is similarly problematic…. The case for the application
of the general contingency deduction of 20 percent seems to me to be seriously
flawed. Since the deduction is to be applied essentially to a starting figure taken
from statistics adjusted for all of those contingencies, there’s no assurance that
the contingencies aren’t double counted. 6
The continued application of female-specific contingencies
regardless of
educational level, income status, or both is inconsistent with statistical predictions
about women’s labour force participation.” Even assuming that deductions are
justified based on the “reality” of women’s labour force participation as constrained
by their familial roles, that “reality” as applied in cases like Spehar” and Audet 9 may
be exaggerated and inconsistent with statistical predictions about women’s work, with
the result that female claimants are routinely undercompensated. Recent statistics
indicate that highly educated women and/or those earning higher incomes tend to
follow “typical” male work patterns; these women (1) are delaying childbirth until
they are secure in the labour force, (2) have fewer children, and (3) are unlikely to
withdraw from the workforce for significant periods of time after childbirth.’
In
4 Spehar, supra note 43 at paras. 45-46.
41 See e.g. MacCabe (C.A.), supra note 39 at paras. 101-102. The Alberta Court of Appeal accepted
the testimony of Dr. Bruce, an expert witness, and stated that it could not simply accept the plaintiff’s
testimony as a certain prediction of her future. The evidence was supported by Statistics Canada 2001
census data, supra note 28.
4 The court seems to have assumed that women tend to marry or form marriage-like relationships
with males, have children, are the primary caregivers in families, and that the plaintiff would have
raised a family soon after joining the workforce.
41 In Audet (supra note 9), the court discounted the plaintiff’s award by 30 per cent for contingencies
of lifestyle choice and the possibility of residual earning capacity. Given the nature of the plaintiff’s
injuries, the court noted that it was difficult to assess her residual earning capacity and that in any
event, her condition prevented her from being competitively employable. It is likely that deductions in
that respect would be negligible. It appears that most of the 30 per cent discount would be for what
the court referred to as “lifestyle choice” (ibid. at para. 81). This is a substantial discount and
presupposes that she would have been out of the labour market for close to one-third of her working
years for family reasons.
‘o This fact was acknowledged in MacCabe (C.A.) (supra note 39 at para. 100) where the Alberta
Court of Appeal noted that large families are rare in modem Canadian society. See also Wynn v. NSW
Insurance Ministerial Corporation (1995), 184 C.L.R. 485 (H.C.A.). This fact has also been
recognized in the social science literature. See Rathje, supra note 30; Shirley Dex & Heather Joshi,
“Careers and Motherhood: Policies for Compatibility” (1999) 23 Cambridge J. Econ. 641, who note
that most women are not only delaying childbirth until such time as they can benefit from maternity
leave provisions, but are also increasingly returning to work sooner after having children. See also
Martin D. Dooley, “The Converging Market Work Patterns of Married Mothers and Lone Mothers in
Canada” (1994), 29 J. Hum. Resources 600.
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McDonald v. Chambers,5′ the Scottish Court of Session gave due credit for the
changing roles of women in society in the assessment of damages for lost earnings.
The court noted that although the plaintiff’s stated desire was to have had children but
for the injury, she was unlikely to have interrupted her career in any significant way
given her professional status. The adjustment
to the multiplier for possible
interruptions in her work was therefore not substantial.
The gender discrimination inherent in female-specific contingency deductions is
heightened by the fact that no such assumptions are made in relation to young males.
For instance, in Gordon the court found it too speculative to assume both that a boy
injured at the age of seven would have married and to what type of person. 2 As such,
the court did not consider the impact of marriage, positive or negative, on his future
earnings. Given the speculative nature of assessment of future losses and the
likelihood of undercompensation,
it would be preferable for courts to adopt the
Gordon position in cases involving young females as well. The Scottish Court of
Session took such a principled approach in Wallace v. Paterson,53 involving a twenty-
year-old female plaintiff who had been rendered virtually unemployable by her
injuries. Lady Paton held that given the uncertainties about the claimant’s future loss,
it was inappropriate to reduce the multiplier to reflect the possibility that the plaintiff
might marry and have children.
Assumptions that women’s child-bearing and caregiving roles negatively affect
their income potential ignores income replacement schemes such as maternity and
parental leave benefits that cushion the impact of non-participation in the market.’
Top up provisions in some collective agreements make the net pecuniary effect of
non-participation negligible or nil in some cases. As well, short-term absences from
work for family reasons do not necessarily result in income loss.” Courts are aware of
the possibility of cushioning through these mechanisms, but this has not been
matched with a willingness to consider these schemes as positive contingencies or as
neutralizing losses from non-participation. Some courts have cited difficulties in
assessing the value of such anticipated pecuniary benefits as reason to ignore them in
“‘ McDonald v. Chambers, [2000] S.L.T. 454 (Ct. Sess.). See also Dex & Joshi, ibid.
52 Gordon, supra note 25 at 332.
“s [20021 S.L.T. 563 (Ct. Sess.). See also Hughes v. McKeown, [1985] 3 All E.R. 284, 1 W.L.R. 963
(Q.B.D.).
14 In Andrews v. Grand & Toy Alberta Ltd., [19781 2 S.C.R. 229, 83 D.L.R. (3d) 452, Dickson J.
cautioned against negative contingency deductions because not only are they likely to have been
considered in arriving at average figures, but also because the impact of negative contingencies on a
person’s earnings might not be as significant as initially thought. He noted: “in modem society there
are many public and private schemes which cushion the individual against adverse contingencies”
(ibid. at 253).
” It is not uncommon for employees to have paid family emergency days in collective agreements.
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the assessment of damages.” Yet, they have not hesitated to make contingency
deductions
increasingly
unsupported by evidence.
that are equally speculative and
for non-participation
It is now recognized that women benefit financially from their partners’ income.
The loss of opportunity to form a relationship of financial interdependence is thus a
compensable loss. Presumably, this would offset some of the financial losses from
non-participation and would likely be available to most infant claimants.” Care,
however, must be taken not to obfuscate compensation for loss of opportunity to form
a relationship of financial interdependence and income replacement schemes. In
Spehar, the court noted that pecuniary losses from non-participation in paid work
might be offset by pecuniary benefits that the plaintiff could have obtained from her
marriage. Loss of opportunity to form a partnership was therefore to be balanced
against deductions for non-participation in the work force. This led to a “lower” (ten
per cent) deduction for non-participation in Crawford. Linking the possibility to offset
losses from non-participation
to form a partnership of
interdependence
is unduly restrictive and could result in undercompensation.
Compensation for loss of opportunity
to form a relationship of permanent
interdependence is not limited to women or to persons who would have entered into
marriage-like relationships. A person’s loss in this regard could thus be in addition to
income replacement schemes from which she would have benefited in times of non-
participation. These losses are different and should therefore be treated separately.
to loss of opportunity
Assumptions about women’s lifestyles and primary caregiving roles reinforce the
patriarchal family model and entrench heterosexual norms, rigid gender identities, and
gendered familial roles and responsibilities. They assert that women by and large live
in patriarchal households with a male breadwinner who earns a family wage, and that
there is therefore no need for women to engage
in paid employment. This
marginalizes women’s paid work while creating the impression that women’s incomes
are peripheral, which partly accounts for discrimination against women in the labour
market.” Current societal trends do not reflect the patriarchal household model or
male breadwinner family. In fact, the male breadwinner family is on the decline,
56 See e.g. Crawford, supra note 17 at 146. See also Audet (supra note 9 at para. 79), where the
court recognized that there could be positive effects that might offset the plaintiff’s pecuniary losses
for non-participation in the labour market for family reasons, but could not take these into account in
assessing the value of her loss, because these benefits have not yet been expressed in economic terms
to warrant compensation.
“See Spehar, supra note 43 at para. 48.
56 I have argued elsewhere that this leads to the perception of women as secondary wage earners and
thereby devalues women’s work, both at home and in the labour market. See Adjin-Tettey, supra note
2 at 509-10; see also Gibson, “Gendered Wage Dilemma”, supra note 1 at 199-202; Regina Graycar
& Jenny Morgan, The Hidden Gender ofLaw, 2d ed. (Sydney: Federation Press, 2002) at 143-45.
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particularly among low-income and/or non-white families.” As well, not all men fit
the traditional mould of sole or even primary provider. The male breadwinner status
has been more prevalent among middle to upper-class families. Not all men are
privileged socio-economically or earn a family wage. Furthermore, some men resist
the traditional equation of masculinity with financial provision.’ The modem reality
of the necessity of dual earner families, and the possibility of some women earning
higher incomes than their partners, challenge the male breadwinner family model.”
As well, the tendency for most people not to adopt permanent couple lifestyles
suggests that the male breadwinner family model does not command as much support
today as it might have in the past.62 These changes have also prompted expectations of
egalitarian roles between partners.
5 See Colin Creighton, “The Rise and Decline of the ‘Male Breadwinner Family’ in Britain” (1999)
23 Cambridge J. Econ. 519; Jiping Zuo & Shengming Tang, “Breadwinner Status and Gender
Ideologies of Men and Women Regarding Family Roles” (2000) 43 Soc. Persp. 29. See also D.W.
Livingstone & Meg Luxton, “Gender Consciousness at Work: Modification of the Male Breadwinner
Norm Among Steelworkers and their Spouses” in E.D. Nelson & B.W. Robinson, eds., Gender in the
1990s: Images, Realities and Issues (Toronto: Nelson Canada, 1995) 172. Whether or not a woman
participates in the labour market depends on variables such as her marital status, the socio-economic
status of her family, her spouse’s level of education and/or income status, et cetera. See e.g. Peter J.
Smith & Roderic Beaujot, “Men’s Orientation Toward Marriage and Family Roles” (1999) 30 J.
Comp. Fam. Stud. 471 at 476.
60 See Michael S. Kimmel, “What Do Men Want?” Harvard Business Review 71:6 (November-
December 1993) 50 [Kimmel, “What Do Men Want?”]; Scott Coltrane, Family Man: Fatherhood,
Housework and Gender Equity (New York: Oxford University Press, 1996); Frances K. Goldscheider
& Linda J. Waite, New Families, No Families?: The Transformation of the American Home (Berkeley:
University of California Press, 1991) at 203-204; Zuo & Tang, ibid. at 31.
61 Increasingly, women’s income is becoming a significant portion of family income and is helping
to raise low-income families, including two parent families, above the poverty line and/or to give
families a decent standard of living. Most men no longer hold the status of sole or even primary
provider. Instead, men are increasingly becoming co-providers, especially in younger families. See
e.g. Dooley, supra note 50 at 605; Zuo & Tang, supra note 59; Smith & Beaujot, supra note 59 at
477; Christopher Worswick, “Credit Constraints and the Labour Supply of Immigrant Families in
Canada” (1999) 32 Can. J. Econ. 152; Jessie Bernard, “The Good-Provider Role: Its Rise and Fall” in
Nelson & Robinson, supra note 59, 156 at 165-66; Katherine Marshall, “Dual Earners: Who’s
Responsible for Housework?” in Nelson & Robinson, supra note 59, 302. Oppenheimer has observed
that men’s income has been declining in most industrial societies since 1970. The trend is particularly
noticeable among younger men. This makes a spouse’s income even more of a necessity for the
family unit: Valerie Kincade Oppenheimer, “Women’s Rising Employment and the Future of the
Family in Industrial Societies” (1994) 20 Population & Dev. Rev. 293 at 322-32.
62 Statistics Canada notes the current prominence of couples living apart while maintaining an
intimate connection. See Anne Milan & Alice Peters, “Couples Living Apart” Canadian Social
Trends (Statistics Canada) (Summer 2003) 2. See also Reekie v. Messervey (1989), 59 D.L.R. (4th)
481, 36 B.C.L.R. (2d) 316 (C.A.), where Lambert J.A. implicitly recognized the decline in marriage
in the traditional sense, by holding that compensation for loss of opportunity to form a relationship of
financial interdependency should not be limited to those who would have formed traditional
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Assumptions about women’s work may also contradict evidence of changing sex
roles in the family and society, for example, the emerging trend of men assuming
more responsibility for domestic work, in particular childcare.” It also ignores the
possibility of egalitarian division of labour in some relationships, both same-sex and
heterosexual, such that it would not be necessary or expected that a woman bear the
brunt of family responsibilities.’ The phenomenon of stay-at-home dads is becoming
a mainstay as women enter the waged labour force in greater numbers and achieve
higher earning status than their partners. The transformation of family life associated
with these changes is likely to increase with rising insecurity in the labour market and
the erosion in men’s wages and the male breadwinner norm (due to factors such as
technological innovations). 5 To my knowledge,
globalization, privatization, and
contingency deductions to account for men’s possible withdrawals from the waged
labour force for family reasons have not been an issue in assessing future income
potential for male claimants. It is therefore inappropriate for such deductions to be
made in women’s claims.’
The norm of the heterosexual family is also premised on the concept of the
nuclear family as the dominant form of social organization. This does not reflect
Canada’s multicultural heritage. In some cultures, extended family members, usually
elderly grandparents, care for the young children so that the parents of these children
marriages. Emphasis is now on partnerships, however formed. See Adjin-Tettey, supra note 2 at 524;
Gibson, “Comment on Toneguzzo-Norvel’, supra note 2 at 99.
63 See e.g. Goldscheider & Waite, supra note 60 at 113.
6 The current division of housework between men and women is far from equal. However, a
different pattern of household responsibility sharing may be beginning to emerge, albeit at a slow
pace, among certain segments of society. See generally Bernard, supra note 61 at 167-68; Marshall,
supra note 61, 302 at 302-303, 305-306; Ralph LaRossa, “Fatherhood and Social Change” in Nelson
& Robinson, supra note 59, 365; William J. Goode, “Why Men Resist” in Nelson & Robinson, supra
note 59, 516 at 522-24; Michael S. Kimmel, The Gendered Society (New York: Oxford University
Press, 2000) at 148, 264-68 [Kimmel, Gendered Society]; Goldscheider & Waite, supra note 60 at
208-209.
6′ See e.g. Smith & Beaujot, supra note 59 at 478; Zuo & Tang, supra note 59 at 30-31; Joan Acker,
‘The Future of Women and Work: Ending the Twentieth Century” in Nelson & Robinson, supra note
59, 501; Kenneth Clatterbaugh, “Contemporary Perspectives on Masculinity” in Nelson & Robinson,
supra note 59, 528.
66Traditional definitions of masculinity and femininity and stereotypical gender roles work against
widespread acceptance of the changing roles of men and women in society and gender equality.
Research indicates that, for the most part, the “new organization man” or “new father” feels his
involvement in family life is inconsistent with his traditional, patriarchal, breadwinner role and would
be perceived as undermining his commitment to the waged labour market. Men therefore feel a need
to conceal their participation at home, for example, by using sick days rather than family emergency
leave provisions, lest they be condemned to the “daddy track” and jeopardize their reputation and
opportunities for career advancement. See Kimmel, Gendered Society, supra note 64 at 131; Kimmel,
“What Do Men Want?”, supra note 60. See also Kathleen Gerson, No Man’s Land: Men’s Changing
Commitments to Family and Work (New York: Basic Books, 1993) at 244-50.
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do not have to withdraw from the waged labour force for extended periods of time. 7
The dominant ideology thus does not mirror the lived experiences, expectations, or
situation of racial, ethnic, or cultural minorities. For the most part, the norms of
heterosexuality and the nuclear family reflect white, middle-class values that are
projected onto all members of society without recognizing the actual situation of
“others” and/or the systemic barriers that prevent marginalized groups from attaining
that status or fitting that mould.
Female-specific contingency deductions also disregard the increasing number of
lone parent families, mostly headed by females. Lone parents may not benefit from
the income of another wage earner. They therefore cannot afford to withdraw from the
market for substantial periods of time, even after childbirth. It is time courts recognize
that the basis of the perception of women as secondary earners no longer exists, and
refrain from making discriminatory assumptions about the place of women in the paid
labour force.
Psychologists have found that children who grow up in lone parent households,
especially those headed by women, are more likely to hold androgynous gender role
perceptions.’ The same can be said of children growing up in same-sex parent
families. Given the increasing number of children growing up in these families, the
possibility of widespread changing views of gender roles and transformation in social
stereotypes should not be underestimated. Though it is possible for some children to
later realize that their perception of gender roles is different from that of the
“dominant” culture, it is not expected that the impact of their upbringing would be
entirely ephemeral. Challenges to sex typing, increasing awareness of the social
construction of gender, the emerging trend of raising gender-aschematic children,
especially among feminist parents, the decline of the male breadwinner family, as
well as political and legal commitments to equality, all support an optimistic view that
67 Just like the recognition of filial piety in fatal injury claims whereby courts recognize the
pecuniary losses of parents upon the death of their children based on their cultural tradition, it is time
that courts recognize that caring for grandchildren is also an important part of some cultural
traditions. For instances in which the courts have recognized filial piety in the context of fatal injury,
see Lian v. Money Estate (1996), 15 B.C.L.R. (3d) 1, [1996] 4 WW.R. 263 (C.A.); Sum v. Kan
(1995), 8 B.C.L.R. (3d) 91 (S.C.); Yu v. Yu (1999) 48 M.V.R. (3d) 285 (B.C.S.C.). Perhaps, like filial
piety, courts can demand evidence of such care or expectation that grandparents or other family
members would have provided child care, such that the parent would not have interrupted her labour
force participation rate in any significant way for family reasons.
66 See e.g. Paul R. Amato & Alan Booth, “The Consequences of Divorce for Attitudes Toward
Divorce and Gender Roles” (1991) 12 J. Fam. Issues 306; Gary D. Levy, “Relations Among Aspects
of Children’s Social Environments, Gender Schematization, Gender Role Knowledge, and
Flexibility” (1989) 21 Sex Roles 803.
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stereotypical gender roles will be eliminated or at least diminished in the future.69 To
the extent that courts rely on current patterns of social organization to make
predictions about future losses, they should accord weight to these emerging trends in
assessing future income potential. This would support the use of common income
statistics and also non-deductibility for female-specific contingencies. Although the
rate of social change remains uncertain, so too are other variables in a person’s future.
Courts should refrain from making contingency deductions in the face of inconclusive
evidence, even within a statistical predictions framework.
In summary, use of male earnings as a proxy for a female plaintiff’s loss appears
progressive. This approach has been used where there is evidence that the plaintiff
would have pursued a “traditional” male career, as well as in relation to infants whose
education and work prospects cannot be ascertained with any certainty at the time of
injury. It also recognizes the trend toward wage parity and the changing place of
women in the waged labour force generally. However, the application of female-
specific contingencies undermines any promise of an egalitarian computation of
damages for lost earnings and broader social change. There is even less justification
for making contingency deductions where courts use blended male and female
earnings, because even if we assume that male statistics do not reflect typical
contingencies that affect women’s earnings, this would have already been included in
the female data. Female-specific contingency deductions seem to be influenced more
by stereotypes about traditional sex roles than by the actual situation of women and
are therefore unjustified.7′ These contingency deductions also show how stereotypical
assumptions and perceptions about women are impervious to change.” As well, the
practice involves uncritical acceptance of past group-based statistics about women’s
work, without questioning the social construction of gender roles by which women
are considered and expected to be primary caregivers, and the assumption that women
will continue to fulfill their socially constructed roles into the future.” In light of the
69 For an interesting commentary on raising gender-aschematic children, see Sandra Lipsite Bern,
“Gender Schema Theory and its Implications for Child Development: Raising Gender-Aschematic
Children in a Gender-Schematic Society” in Nelson & Robinson, supra note 59, 83.
70 The assumption about the fairness of male earning statistics is premised on homogeneity among
men, that is, that no group of male earners experiences discrimination. Yet gender is not the only
reason for discriminatory earnings. Factors such as race, ethnicity, national origin, sexual orientation,
and physical and mental (dis)ability have also been shown to affect income. Perhaps average incomes
should be used as a proxy for all claimants, in order to avoid having to make assumptions about the
income potential of individual plaintiffs. Although some plaintiffs could end up with less
compensation than under the current system, this is an egalitarian approach and would not perpetuate
inequalities if uniformly applied to all claimants.
” In Herring, supra note 23 at paras. 31, 38, the English Court of Appeal cautioned against
deductions in the absence of tangible reasons relating to the particular plaintiff.
72 See Teresa Joyce Covin & Christina Christenson Brush, “An Examination of Male and Female
Attitudes Toward Career and Family Issues” (1991) 25 Sex Roles 393 at 395-96.
13 See Chamallas, “Architecture of Bias”, supra note 4 at 488-89.
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speculative nature of assessing future income potential, coupled with the rapidly
changing patterns of women’s work, full participation should be assumed without
requiring the particular plaintiff to adduce evidence of the possibility that she would
have followed the “typical” male pattern.”4
III. Implications of Female-Specific Contingency Deductions for
Other Marginalized Groups
Discounting awards for possible non-participation in the labour market can
doubly disadvantage claimants who are also marginalized by reason of their race,
ethnicity, and socio-economic status. As noted above, expectations of absence from
the labour market for extended periods of time often assume that a woman can benefit
from her partner’s (usually a man) income.75 This does not reflect the reality for most
members of marginalized groups. Notwithstanding the admonition that compensation
should not be influenced by systemic discrimination based on the claimant’s personal
characteristics,76 the impact of race on economic opportunities has sometimes been
used to justify depressed awards, at least in relation to Aboriginal claimants.7
Damages awarded to survivors of residential schools and other institutions are
evidence of this practice in recent times.78
7 For an example of resistance to such a favourable assumption for female claimants, see MacCabe
(C.A.) (supra note 39 at paras. 109, 126). The court was concerned that to do otherwise would offend
the principle of restitutio in integrum.
” The maternity leave regime reinforces the male breadwinner model by precluding women
receiving benefits from earning any income during the benefit period. Maternity benefits provided are
55 per cent of the woman’s income up to a maximum of about $413 per week. This is hardly enough
to sustain most families, yet unlike recipients of regular employment insurance, those receiving
maternity benefits cannot supplement their benefits with employment income. This presupposes that
women with young children would be living in two parent families and can benefit from their
partner’s income when in receipt of maternity benefits. The reduced benefits are among the factors
that compel low-income or single women to return to work soon after childbirth, because they just
cannot survive on the benefit amount.
76 See e.g. Terraciano (supra note 34 at 206), where Saunders J. (as she then was) noted that it
would be inappropriate to discount a claimant’s award based on considerations of race or ethnic
origin.
” Cassels has observed that race influences the assessment of loss and quantum of damages in
personal injury claims in British Columbia, particularly for Aboriginal claimants. He notes that the
practice is often justified on the ground that because of their racial background, the material prospects
of First Nations claimants would not have been favourable even if they had not been injured. This in
turn diminishes their pecuniary losses due to the injury inflicted by the defendant’s wrong. Cassels,
“Gender, Race and the Assessment of Damages”, supra note 3 at 190-98.
7 See e.g. Blackwater v. Plint (2001), 93 B.C.L.R. (3d) 228 (S.C.), varied [2003] B.C.J. No. 2783
(C.A.) (QL) [Blackwater]; H.L v. Canada (A.G.) (2002), 227 Sask. R. 165, [2003] 5 W.W.R. 421
(C.A.), leave to appeal to S.C.C. granted (2003) 230 D.L.R. (4th) 735 (Sask. C.A.) [H.L v. Canada].
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Part of the problem stems from the courts’ reliance on culturally inappropriate
and racialized indicators to assess a person’s earning potential, which appears to be
inevitable so long as restitutio in integrum, with its reference to the capitalist market,
remains the basis for the computation of damages in personal injury claims. In the
context of First Nations claimants, Cassels notes, “individual prospects and value are
typically measured against the culturally dominant standard of the market from which
First Nations individuals are largely excluded.”79 Even when courts make favourable
assessments about their labour force participation rates, usually based on family
history and other situational factors, there is still a tendency to discount the award
because First Nations claimants tend to earn less than the average person in their
category. In Ross (Guardian ad Litem) v. Watts,8 the plaintiff was a sixteen-year-old
Aboriginal boy. The court found that he was of average intelligence, would have
completed grade twelve, and was expected to have had a significant attachment to the
waged labour force based on his family’s strong work ethic and his own work history.
His award was nevertheless discounted by fifteen per cent because of his Aboriginal
ancestry to reflect the discrepancy
in earnings between non-Aboriginal and
Aboriginal males in British Columbia, a fact the court said it could not ignore.8 While
the basis of assessment in this case may appear to be both consistent with reliance on
the market and supported by statistical predictions as reflecting “reality”,
it
undoubtedly perpetuates systemic discrimination against Aboriginals and potentially
against other marginalized groups. Not only does this approach reinforce racial and
ethnic inequalities, but it also puts too much emphasis on race as a reliable predictor
of a person’s income potential. Visible minority female claimants are particularly
disadvantaged in this process because they tend to have much less socio-economic
prospects than the average person in Canadian society. They are thus potentially
disadvantaged because of their gender, racial or ethnic background, and socio-
economic status.
the assessment of damages
The socio-economic disadvantage of marginalized groups other than First Nations
in less overt ways,
claimants usually influences
particularly when applying the statistical predictions approach. In assessing
the
income potential of children had they not been injured, courts often take into account
their family history, specifically parental backgrounds, educational and vocational
achievements, and include an assessment of the home environment to determine
factors such as the level of education the claimant would have attained, as well as her
” Cassels, “Gender, Race and the Assessment of Damages”, supra note 3 at 191. For example,
inability to engage in traditional activities such as hunting, gathering, and fishing have sometimes
been compensated for, not as part of impaired capacity to work but as non-pecuniary losses while in
some cases they have been disregarded altogether. See Plasway v. Abraham, [1993] B.C.J. No. 172
(S.C.) (QL); Edzerza v. Blackburn, [1990] B.C.J. No. 740 (S.C.) (QL).
‘0 [1997] B.C.J. No. 1998, (S.C.) (QL) [Ross].
8″ Ibid. at paras. 257-58.
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likely work ethic, nature of participation in the work force, and income level. 2
Reliance on these factors is arbitrary and assumes that the plaintiff’s income potential
and life generally would have mirrored that of her family members, notwithstanding
evidence that children’s educational and vocational attainments do not always match
those of their parents. 3 This method fails to recognize factors other than the social and
economic status of parents that may influence a child’s future, which may exceed the
educational and vocational achievements of her parents. As well, the practice ignores
the developmental theory of resiliency, which recognizes that some children who live
under extremely adverse conditions can overcome those risks and exceed expectations
and predictions based solely on their biological or psychological status or
environment.’ Rak and Patterson have noted:
Contrary to the thrust of much current literature, the future for children who
are at risk because of poverty, family discord, violence and abuse, illness,
parental illness, and many other factors need not be bleak. Protective factors
including the temperament of the child, unexpected sources of support in the
family and community, and self-esteem lead a majority of at-risk children to
succeed in life. 5
In Ross, the plaintiff suffered severe injuries including permanent brain damage and impaired
vision. The court said: “In a case of this character where pre-morbid potential and extent of loss are in
issue, it behooves the Court to look at the educational attainment, the work profiles and, if possible,
the characters of the plaintiff’s family” (ibid. at para. 115). In Terraciano (supra note 34 at 207), the
court emphasized that male earning statistics were the appropriate measure of the plaintiff’s loss,
because, among other things, given her work history, family work ethic, and strong family influence,
it was more likely that she would have pursued a “typical” male career. See also Bauer, supra note 38
at 81; Gordon, supra note 25; Webster v. Chapman (1996), 114 Man. R. (2d) 1 at 38, [1996] 9
W.W.R. 652 (Q.B.), rev’d on other grounds (1997), 155 D.L.R. (4th) 82, [1998] 4 W.W.R. 335, leave
to appeal to S.C.C. refused [1998] 1 S.C.R. vii. For a general discussion of the belief that there is a
strong correlation between the socio-economic status of parents and future educational, vocational,
and hence income potential of children, see Gary S. Becker, A Treatise on the Family (Cambridge,
Mass.: Harvard University Press, 1981) at c. 5, 6, 7.
3 See e.g. David A. Kodde & Josef M.M. Ritzen, “Direct and Indirect Effects of Parental Education
Level on the Demand for Higher Education” (1988) 23 J. Hum. Resources 356.
84 See e.g. Linda Datcher-Loury, “Family Background and School Achievement Among Low
Income Blacks” (1989) 24 J. Hum. Resources 528. The author observes that a child’s potential may
be influenced by factors other than the socio-economic status of her parents and that some Black
children growing up in extremely adverse conditions have nevertheless attained academic
achievements exceeding all expectations. See also Laura Greenberg, “Compensating the Lead
Poisoned Child: Proposals for Mitigating Discriminatory Damage Awards” (2001) 28 B.C. Envtl. Aff.
L. Rev. 429.
85 Carl E Rak & Lewis E. Patterson, “Promoting Resilience in At-Risk Children” (1996) 74 J.
Counseling & Dev. 368 at 372. See also Timothy F Dugan & Robert Coles, eds., The Child in Our
Times: Studies in the Development of Resiliency (New York: Brunner/Mazel, 1989); Warren A.
Rhodes & Walu K. Brown, eds., Why Some Children Succeed Despite the Odds (New York: Praeger,
1991).
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Indicators of success in the labour market reflect values and characteristics of
dominant groups in society. Predictions about a person’s income potential based on
her family history thus favours children from higher socio-economic status and/or
with parents considered to be “ideal” workers, while prejudicing those from less
economically successful backgrounds.” The majority of persons in the former
category tend to be Caucasians while persons in the latter tend to be Aboriginals and
other visible minorities. The commitment to equality expressed in the Canadian
Charter of Rights and Freedoms, in particular section 15, and employment equity
initiatives at both federal and provincial levels, suggest that a person’s race or ethnic
heritage should not influence her labour market opportunities, either positively or
negatively. Yet, there is a noticeable gap in earnings between whites and visible
minorities or Aboriginals, even when they have comparable educational attainment.’
Courts in England have explicitly increased damages awards for children based on family history
and the environment in which the child would be brought up. Generally, the starting point for the
assessment of damages for children is to use the national average wage as the multiplicand. Courts
have increased the multiplicand based on family background and achievement. For instance, in
Almond v. Leeds Western Health Authority, [1990] 1 Med. L.R. 370, the court used a multiplicand
one-and-a-half times the national average because the child was from an excellent home and the
parents would have ensured that he received proper education and training. In Cassel v. Riverside
Health Authority, [1992] P.I.Q.R. Q168 (C.A.), the court increased the multiplicand significantly
based on evidence of the child plaintiff’s family background and pattern of effort and successful
attachment to the paid labour force. See also M (A Child) v. Leeds Health Authority, [2002] P.I.Q.R.
Q46; Harvey McGregor, McGregor on Damages, 16th ed. (London: Sweet & Maxwell, 1997) at para.
1582. Similarly, a multiplicand lower than the national average wage could be used for children of
parents whose incomes are below the national average, with unfavourable family history of labour
force participation or where the child would have grown up in a less than “ideal” family environment.
87 See e.g. Statistics Canada, Will They Ever Converge?: Earnings of Immigrants and Canadian-
born Workers over the Last Two Decades by Marc Frenette and Ren6 Morissette (Ottawa: Statistics
Canada, Analytical Studies Branch, 2003). Although this is a study of the income differences between
Canadian born and recent immigrant workers, it also demonstrates the wage gap between Caucasians
and visible minorities. As the authors note, most recent immigrant workers, about 75 per cent in the
sample group, are visible minorities (ibid. at 15). See also Krishna Pendakur & Ravi Pendakur, “The
Colour of Money: Earnings Differentials among Ethnic Groups in Canada” (1998) 31 Can. J. Econ.
518; Steven G. Rivkin, “Black/White Differences in Schooling and Employment” (1995) 30 J. Hum.
Resources 826; Juliet Howland & Christos Sakellariou, “Wage Discrimination, Occupational
Segregation and Visible Minorities in Canada” (1993) 25 Applied Econ. 1413; L.N. Christofides & R.
Swidinsky, ‘Wage Determination by Gender and Visible Minority Status: Evidence from the 1989
LMAS” (1994) 20 Can. Pub. Pol’y 34; Morton Stelcner & Nola Kyriazis, “An Empirical Analysis of
Earnings Among Ethnic Groups in Canada” (1995) 32 Int’l J. Contemp. Soc. 41; Kidd & Shannon,
“Gender Wage Differentials”, supra note 28 at 930; Statistics Canada, The Rise in Low-Income Rates
Among Immigrants in Canada by Garnett Picot & Feng Hon (Ottawa: Statistics Canada, Analytical
Studies Branch, 2003),
online: Statistics Canada
Enclaves and Labour Market Outcomes of Immigrants by Feng Hon & Garnett Picot (Ottawa:
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The disproportionate representation of visible minorities and Aboriginals in lower
socio-economic classes has meant that claimants from these groups receive less
damages for lost earnings.88 This practice is discriminatory and reinforces the racial
privilege of whites by assuming that the ethnically based wage gap is justified and
will persist in the future.
Using parents’ socio-economic status as a proxy for a child’s loss is premised on a
stratified society with no possibility of class mobility, despite current initiatives to
achieve substantive equality and eliminate barriers in the workplace and Canadian
society more generally. It also uncritically accepts that the current socio-economic
status of a person’s family is a sufficient indicator of her future potential, sometimes
even despite the fact that evidence available at the time of injury may indicate
otherwise.” This approach presupposes that children from poorer backgrounds cannot
achieve, and probably should not aspire to anything better than, their parents’
conditions. Alternatively, even if class mobility is possible, the odds of upward
mobility are so low that it is not worth considering in predicting a person’s future
income potential. This position fails to recognize that systemic discrimination limits
economic opportunities and the labour force participation of marginalized groups. In
other words, it ignores the fact that their “reality” is socially constructed.’
Claimants from lone parent families, especially those headed by women, are also
disadvantaged by the traditional approach to the computation of damages. It is
Statistics Canada, Analytical Studies Branch, 2003), online: Statistics Canada
“8 As noted above, Becker (supra note 82 at 137) strongly believes that there is a direct relationship
between children’s outcome and their parents’ backgrounds. Yet he also recognizes
that
discrimination against minorities can negatively impact their incomes even in spite of their family
background.
89 For example, in Rewcastle, involving a 16-year-old grade 11 girl killed in an automobile accident,
there was evidence that at the time of her death the plaintiff was not doing very well in school and had
also fallen into bad company. There were therefore some doubts as to whether she would have
actually obtained a university degree had she not been killed. Notwithstanding this disturbing
evidence, the court was confident that given her home environment and her parents’ educational and
vocational accomplishments, availability of resources, parenting skills, and parental expectations of
success, the deceased would likely have overcome her difficulties and at least completed a Bachelor
of Arts degree. That was therefore to be the basis for assessing her future income potential (supra note
14 at paras. 28-30, 168). See also Hamilton (Guardian ad litem of) v. Grubb, [19921 B.C.J. No. 2796
(S.C.) (QL) [Hamilton], where the plaintiff was 14 years old at the time of the accident. He had a C
average in his schoolwork. Both his parents were highly educated and full participants in the labour
force and expected that the plaintiff would have attended university if he had not been injured. The
court took this to be sufficient indication that the plaintiff might have obtained a university degree. In
making this determination, Dorgan J. was not perturbed by the plaintiff’s academic performance at
the time of the accident, noting that he was not working to his full capacity at the time of the accident.
For comments on Hamilton, see Cassels, “Gender, Race and the Assessment of Damages”, supra note
3 at 194-95.
9 Chamallas, “Architecture of Bias”, supra note 4 at 480-89.
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commonplace for young, lone mothers to sacrifice their personal interests and
economic prospects for the interests of their children, with the result that they usually
have lower socio-economic status.” This would appear to limit opportunities for their
children. It is unfortunate for claimants from such backgrounds to be “penalized”
based on statistical predictions without recognizing systemic factors that constrain
their parents’ choices and that the parents’ sacrifice could result in improved socio-
economic opportunities for the children. Further, reference to familial background to
determine future income potential can be an unsavoury exercise, especially for
historically marginalized groups. Courts entertain testimonies about claimants and
their families’ unfavourable, even tragic, background and experiences such as alcohol
abuse and suicide rates to determine “just” compensation. This practice essentially
puts the plaintiff and her family on trial, diverts attention from the gravity of the
plaintiff’s injuries, and reinforces
the marginalization of already disadvantaged
groups. This is particularly unfortunate where the marginalization of the group has
resulted from systematic government policy, as in the case of Aboriginal people.92
Female claimants from marginalized groups may be doubly disadvantaged.
Courts recognize that their personal characteristics would have negatively affected
their economic prospects. Yet they fail to take into account the economic vulnerability
that makes it impossible for such women to withdraw from the market for significant
periods of time, and thus they fail to justify female-specific contingency deductions,
even within a statistical prediction framework. Non-participation in the labour market
for extended periods is a luxury most marginalized women cannot afford. For
instance, because members of visible minorities and other socially disadvantaged
groups tend to have lower family income, it is often unrealistic for women from these
groups to be absent from the paid work force for long periods of time. They cannot
afford the reduction in income while receiving maternity or parental leave benefits
and may be forced to to resume paid work soon after childbirth.93 Yet this factor is not
considered favourably in the assessment of damages because to do so would be
perceived as reinforcing and perpetuating discrimination against marginalized groups.
To consider socio-economic factors such as race and class, whether directly or
” See e.g. Jillian Oderkirk & Clarence Lochhead, “Lone Parenthood: Gender Differences” in
Nelson & Robinson, supra note 59, 397.
92 See e.g. D.W. v. Canada (A.G.) (1999), 187 Sask. R. 21 (Q.B.); H.L v. Canada, supra note 78;
Blackwater, supra note 78.
” See generally Nitya Iyer, “Some Mothers Are Better Than Others: A Re-Examination of
Maternity Benefits” in Susan B. Boyd, ed., Challenging the PublicPrivate Divide: Feminism, Law
and Public Policy (Toronto: University of Toronto Press, 1997) 168. Low-income women either do
not take maternity leave at all or do so only for a short period of time. Statistics Canada notes that
women who earn a median income of $16,000 who qualify for maternity benefits return to paid
employment within four months, compared to those with a median income of $28,000 who resume
paid work between 9 and 12 months after childbirth: Statistics Canada, “Benefiting from Extended
Parental Leave” The Daily (21 March 2003), online: Statistics Canada
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indirectly, in addition to gender in the form of negative contingencies, seemingly to
mirror “reality” and in the interest of “just” compensation, is a form of “double
jeopardy” and undercompensates women who are already marginalized in society.
Resort to familial background as a proxy for a claimant’s loss also blames victims
for their disadvantage as if it results from internal or behavioural factors or
characteristics assumed to be typical of the group, such as lack of intelligence, lack of
motivation, lack of initiative, or a natural proclivity to domesticity. By focusing on
internal factors, attention is shifted from external and systemic factors that influence
socio-economic conditions. This justifies the expectation that the same pattern will
continue
in the future, thereby limiting opportunities for societal responses to
systemic inequalities. As Chamallas has observed
[A] focus on dispositional factors can conveniently explain why the … income
gap will persist in the future, in spite of the formal legal commitment to equal
opportunity. If this is the case, then negative stereotypes can become self-
fufilling prophecies as predictions about future income potential translate into
lower damage awards.94
In Crawford, the court recognized that reference to family history and work ethic
in assessing the future income potential of the plaintiff could be problematic, yet
concluded that the assumption that a child’s income potential will closely mirror her
parents’ earning history is not unreasonable. Power J. stated:
Consideration must be given to [the plaintiff’s] family’s work ethic … I used the
family’s work ethic as a reference point even though there does not appear to
be a definitive study which establishes that, if parents have a strong work ethic
it is reasonable to assume that we can ignore or play down this contingency of
non-participation for the adult child. I believe it is reasonable to make such an
assumption and that it is more reasonable to make the assumption than not to
make it.95
Courts have discretion in determining the appropriate measure of claimants’ lost
income potential.’ By accepting historical and current “realities” about different
groups without recognizing how these positions have been socially constructed,
courts are not only actively reinforcing inequities and stereotypes about marginalized
groups, but also projecting them into the future. This does not bode well for equality-
seeking groups. As Chamallas has observed
Crawford, supra note 17 at 145-46. See also Shaw, supra note 19 at para. 65.
9 Chamallas, “Architecture of Bias”, supra note 4 at 487.
96Cassels has observed that “the selection of a remedy is not simply an automatic consequence of a
finding of liability in a lawsuit. There is much room for judicial discretion and human choice in the
determination of the appropriate remedy. The selection of remedies is every bit as much a part of the
law’s quest to do justice between the parties as is the application of the substantive law” (Jamie
Cassels, Remedies: The Law of Damages (Toronto: Irwin Law, 2000) at 2). For a similar perspective
concerning the law of contracts, see L.L. Fuller & William R. Purdue Jr., “The Reliance Interest in
Contract Damages” (1936) 46 Yale L.J. 52.
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Causal attributions can become material reality when perceptions are validated
through legal institutions … Cognitive bias distorts the interpretation of the past
to make biased predictions of the future seem rational or fair. Devaluing the
potential of women and minorities is thus accomplished in an updated, subtle
form that looks more like economic expertise than race or gender bias. 7
The active participation of courts in constructing a stratified society is contrary to
the principle of non-discrimination in federal and provincial human rights legislation
including the Canadian Charter of Rights and Freedoms. It also ignores the
admonition by the Supreme Court of Canada that the development and interpretation
of the common law should reflect Charter values.” In Hill v. Church of Scientology of
Toronto,”9 Cory J. stated that the judiciary should make such incremental changes to
the common law as may be necessary to bring it in line with the fundamental values
enshrined in the Charter. This may be taken as an expectation that courts should
remedy historical inequities that detrimentally affect claimants on the basis of a
prohibited ground of discrimination.
Given that the assessment of damages for lost earning capacity is speculative
anyway, it would be appropriate for courts to incorporate some element of resiliency
theory in their assessment of damages. Further, given the commitment to equality of
opportunities as reflected in the Charter and employment equity legislation, it is not
unreasonable for courts to be optimistic that members of historically disadvantaged
groups will have better economic opportunities in the future. For example, increasing
opportunities for Aboriginals
litigation process, and
institutional commitments to build bridges with Aboriginal communities are likely to
improve the material prospects of First Nations children in the future. This trend
deserves positive recognition even in
the context of a statistical predictions
framework. Consistent with both the theory of resiliency and the commitment to
substantive equality, courts should assume that a child claimant would have achieved
average income potential, even if her family’s current socio-economic status seems to
suggest otherwise.
treaty and
through
the
Emphasis on statistical predictions and labour market trends has generally
justified higher awards for some female claimants. However, market indicators, even
if they are statistically accurate, do not question the fairness of, or attempt to remedy,
labour market and societal discrimination, and therefore they perpetuate systemic
discrimination against female claimants, who continue to receive less compensation
than males in similar circumstances. Reliance on statistical predictions continues to
support depressed awards and reinforces the disadvantaged socio-economic position
of historically marginalized groups for whom there is no evidence or likelihood of
wage parity with the general population either now or in the future. So far, the
‘ Chamallas, “Architecture of Bias”, supra note 4 at 489.
9’R. WD.S. U. v. Dolphin Delivery, [1986] 2 S.C.R. 573 at 603, 33 D.L.R. (4th) 174.
99 [1995] 2 S.C.R. 1130 at 1169, 126 D.L.R. (4th) 129.
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available evidence points to a narrowing of the gender wage gap. Yet gender is not the
only basis of discrimination in society or the labour market. The lower socio-
economic status of marginalized people stems from a number of factors including
systemic discrimination in the labour market and society generally. These people are
deemed unsuitable for certain types of employment, are not offered well-paying jobs,
or are not given the opportunities for advancement open to others.'” Reliance on
market indicators casts doubt on Canada’s commitment to substantive equality, at
least in the context of damages for lost productivity, and is inconsistent with the
expectation that the common law should reflect Charter values.
IV. Is Tort Law Solely About Corrective Justice?
So far, I have argued that courts should assess potential future earnings without
speculating about the claimant’s background or specific characteristics that would
result in lower awards compared to plaintiffs who have suffered similar injuries. One
of the obstacles to substantive equality in the assessment of damages is the notion that
tort law is premised on corrective justice and not well suited for remedying societal
inequities. That is, the goal of tort remedies is simply to restore a plaintiff to her
original position. Damages must reflect what her life would have been in fact, but for
her injury. To do otherwise would be to put the plaintiff in a better position than her
status quo ante, contrary to the compensatory purpose of tort damages. It would also
shift the cost of social change to particular tortfeasors, who may not be responsible for
the discrimination
the
misfortune of injuring persons who happen to be members of marginalized groups.’ ‘
This would unfairly penalize defendants, who could be made to compensate plaintiffs
inherent in plaintiffs’ original positions, but only had
“o Although employment equity legislation and initiatives could change the composition of the
workforce by increasing representation of historically disadvantaged groups in specific occupations, it
does not necessarily guarantee such persons equality of opportunities within the establishment and/or
of earnings. See Kevin T. Reilly & Tony S. Wujanto, “Does More Mean Less? The Male/Female
Wage Gap and the Proportion of Females at the Establishment Level” (1999) 32 Can. J. Econ. 906;
Kidd & Shannon, “Gender Wage Differentials”, supra note 28 at 934-35.
0′ This claim is shared by those who subscribe to the view that corrective justice is the only
legitimate aim of tort law and criticize attempts to use tort law for distributive justice, among other
things because of the random nature of the distribution, both in terms of choice of participants and the
partiality of outcome. Keren-Paz responds to the claim of randomness by noting that it is no reason to
abandon distributive goals in tort law because, among other things, it results in intergroup justice, and
in any event is more progressive than the curent system, which supports redistribution in favour of
the privileged, and is also random anyway. Since
the progressive approach would benefit
disadvantaged groups in society who become plaintiffs in the tort system, it is preferable to the status
quo, which is regressive, even if its actual impact may be limited in scope. Tsachi Keren-Paz, “An
Inquiry into the Merits of Redistribution Through Tort Law: Rejecting the Claim of Randomness”
(2003) 16 Can. J.L. & Jur. 91.
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in excess of their “actual” loss. 2 This was the defendant’s argument before the
Alberta Court of Appeal in MacCabe. In that case, the court emphasized that tort
damages must be based on the compensatory principle of restitutio in integrum.
Damage awards must therefore reflect the “reality” of the plaintiff’s situation had she
not been injured and not inflate her loss based on a desire to achieve social justice or
equality for women in the labour market. Whittmann J.A., speaking for a unanimous
court, acknowledged
the suggestion of the Supreme Court of Canada that the
common law, and therefore tort law, must be interpreted in a manner consistent with
Charter values. At least in the context of assessment of damages in personal injury
claims however, it would be inappropriate and inconsistent with fundamental tort
principles to apply Charter values. He stated:
While I accept that the common law must try to be consistent with Charter
values including equality, this consistency cannot be at the expense of the
fundamental purpose of compensatory damages in tort law … [1o strictly
adopt the approach taken by the learned trial judge runs the risk of ignoring, or
at the very least, minimizing the essential purpose of compensatory damages in
tort law.’03
Hutchinson J. echoed these sentiments in Rewcastle, emphasizing that the proper
role of the courts in awarding damages is to restore plaintiffs to their original positions
and not to use the compensation process as an opportunity to remedy societal
injustice:
A court of law, when required to assess the value of lost earnings, should
not be asked to correct past or future inequities whether perceived or real which
are either gender based or based on segments of the work force which have
been historically underpaid. [P]roper compensation [must be] based on [the]
reality … [of] the individual income earner in question[,] … taking all possible
factors into consideration that lead to a realistic conclusion and not what may
be considered by some to be a desirable advance towards equality for all based
on social objectives(M
It may appear unfair for any single defendant or random tortfeasor to bear the cost
of social reform, particularly when she has not benefited from the status quo. Ideally,
the cost should be borne by society as a whole, or more specifically, by the
beneficiaries of the current system. Since my proposal pursues equality in the private
litigation system, it may appear insensitive to this problem. This criticism is, however,
unfair. Emphasis on corrective justice assumes that tort claims are purely about the
relationship between the parties inter se. According to this view, although tort law
may affect social patterns of distribution or holdings
in society, this is only
consequential to corrective justice. It is therefore inappropriate, the argument goes, for
0’2 See e.g. Mclnnes, supra note 27 at 171; Tucker, supra note 10 at 533-34, McEachem C.J.B.C.
‘o3MacCabe (C.A.), supra note 39 at para. 107.
‘o Rewcastle, supra note 14 at 81.
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courts to be directly involved in the distribution of benefits and burden or to consider
issues of social policy. But this view fails to recognize factors outside the relationship
that may influence the determination of liability and/or the quantum of damages. It
also assumes the neutrality of tort law.”
The view that tort law is solely about corrective justice has been discredited. The
proper view is that distributive justice and corrective justice are complementary, and
that they both constitute the foundation of tort law.'” Undoubtedly, corrective justice is
central to tort law, for example, by ensuring the correlative rights and obligations
between persons who have suffered a particular harm and wrongdoers, exemplified in
requirements such as causation, damage, and in some cases, fault. But tort liability
and entitlement to damages are also influenced by distributional goals. The overall
structure of tort law may in fact reflect distributive justice in the sense that distributive
concerns often determine the content of tort law, although the application of the
principles in particular cases may reflect corrective justice.’ 7 The purpose of tort law
includes the achievement of broader social policy goals that are intended to benefit
society as a whole,’0 including the goal of substantive equality for disadvantaged
members of society.'” In this sense, corrective justice limits the distributive potential
of tort law because the latter operates only as between a particular injurer and
injured.”
Moreover, to say that tort law is solely about corrective justice is presumptuous
because the need to restore a disturbed equilibrium between litigants assumes an
‘0 See Ernest J. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard University Press,
1995).
” For instance, see Richard W. Wright, “Right, Justice and Tort Law” in David G. Owen, ed.,
Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) 159 at 171-74. See also
Izhak Englard, “The Idea of Complementarity as a Philosophical Basis for Pluralism in Tort Law” in
Owen, ibid. 183; Allan C. Hutchinson, “The Importance of Not Being Ernest” (1983) 34 McGill L.J.
233. Hutchinson notes that principles of corrective and distributive justice “interact in the practical
world” (ibid. at 256).
’07 See generally Peter Cane, “Distributive Justice and Tort Law” (2001) N.Z.L. Rev. 401 at 411-12
[Cane, “Distributive Justice”]; Ken Cooper-Stephenson, “The Fairest of them All: The Supreme Court
of Canada’s Tort Jurisprudence” (2002) 17 Sup. Ct. L. Rev. (2d) 1 at 17-19; Ken Cooper-Stephenson,
“Corrective Justice, Substantive Equality and Tort Law” in Cooper-Stephenson & Gibson, supra note
1, 48 [Cooper-Stephenson, “Corrective Justice, Substantive Equality”]; Hanoch Dagan, “The
Distributive Foundation of Corrective Justice” (1999) 98 Mich. L. Rev. 138.
,09 See, for example, the basis for the imposition of a duty of care on a defendant for the plaintiff’s
benefit articulated by the Supreme Court of Canada in cases such as Cooper v. Hobart, [2001] 3
S.C.R. 537, 206 D.L.R. (4th) 193; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562,
206 D.L.R. (4th) 211; Dobson (Guardian ad litem oJ) v. Dobson, [1999] 2 S.C.R. 753, 174 D.L.R.
(4th) 1.
” See Cooper-Stephenson, “Corrective Justice, Substantive Equality” supra note 107 at 55; Ichak
Englard, The Philosophy of Tort Law (Aldershot: Dartmouth, 1993) at 11-12.
,o See Cane, “Distributive Justice”, supra note 107 at 418-19.
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that
to recognize
antecedent distributive justice that is legally defensible. Viewed in this way, corrective
justice is a corollary of distributive justice because its goal appears to rectify
deviations in the original position or just distribution. The duty to rectify is perceived
as prepolitical and not dependent on any legal or political institutions for enforcement.
Corrective justice is only aimed at formal equality. It does not question the justice of
the status quo or the relative positions of the parties.”‘ In particular, corrective justice
fails
the original position that it seeks to restore may be
discriminatory because it reinforces the privileged position of those who wield power
in society and disadvantages plaintiffs from marginalized groups. Failure to recognize
the marginalized position of parties in the litigation process, which is key to classical
liberalism with its emphasis on individual autonomy, prevents discourse about social
disadvantage based on factors such as race, class, gender, disability, sexual
orientation, et cetera. It also forces marginalized individuals and groups to abandon
their lived experiences of powerlessness, domination, and subordination and to
pretend to be on equal footing with the rest of society. Similarly, it requires lawyers
and judges to abandon their commitment to substantive equality in deference to legal
formalism and to the detriment of disadvantaged groups.”2 Clearly some level of
“activism” based on distributive justice, other than simply restoring the plaintiff to her
“original position” would be required to do justice in particular cases.
The current system creates and reinforces the relative worth of human life and
potential. It gives the impression that persons with favourable personal traits and/or
socio-economic backgrounds are worth more than others, making it cheaper to injure
persons in the latter category. This undermines one of the central aims of tort law, that
is, to create disincentives or deterrence for wrongdoing. The situation of lead-
poisoned plaintiffs in the United States is a case in point. Lead poisoning is common
among African-American and Hispanic children. Given the prevalence of poverty
among
these groups, which for the most part is itself a result of systemic
discrimination, they tend to live in run down houses with lead paint and therefore
easily fall prey to lead poisoning. These children are also disadvantaged by the
traditional method of assessing income potential, based on, among other things, their
race and class and thus receive depressed awards for future income potential. Courts
reason that based on their parents’ socio-economic status, these children’s material
prospects would not have been promising even absent their injuries. Reliance on race-
based statistics reinforces discrimination against these groups in the labour market
and in American society generally.”3 The current system is therefore skewed in favour
of the privileged by reinforcing and replicating the supposed “realities” of the
capitalist system with its “unequal distribution of resources, which, in a liberal order,
“‘See generally Wright, supra note 106, 159 at 167.
… See Ted Decoste, “Taking Torts Progressively” in Cooper-Stephenson & Gibson, supra note 1,
240 at 250-51, 254-57.
‘ See generally Greenberg, supra note 84.
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define life chances.”‘ 4 It also supports the redistribution of wealth from the poor to the
rich. The status quo is therefore engaged in some wealth redistribution, albeit in a
regressive way that perpetuates
the
privileged and disadvantaged groups. This perverse use of tort law has rightly been
rejected in favour of substantive equality, at least in the determination of civil liability.”‘
The goal of substantive equality should equally inform the assessment of damages for
impaired working capacity.
inequalities of wealth and power between
Emphasis on corrective justice and the concern not to burden
individual
defendants with the cost of social change also assumes that defendants in personal
injury claims personally satisfy damage awards. In theory, tort litigation is between
the parties, but in reality, the cost of compensation in most personal injury claims
rarely falls on individual defendants. Rather, it is often borne by the general public.
Usually, catastrophic injuries result from activities that are required to be insured such
as medical accidents, product-related accidents, and automobile accidents. Other
machine related injuries tend to occur in work settings where the owners or employers
are either insured or self-insurers. Insurers, under liability policies that might not be
sensitive to the defendant’s claim record, often defend personal injury claims and
satisfy damage awards against tortfeasors. The cost is passed on to the public or
particular segments of society (other policy holders, consumers, or shareholders)
through
Individual
defendants are thus often conduits for passing on the plaintiff’s loss to others in
society. Although there would still be cases in which defendants may be individuals,
and/or not in a position to pass on losses to others, such defendants would often be
judgment proof and not worth suing. Incorporating distributional goals in the
assessment of lost earnings would not necessarily burden particular defendants with
the cost of social justice.
insurance premiums, higher prices, or reduced profits.”‘
Critics have also argued that given the bilateral nature of tort law, it is not an
appropriate mechanism for solving social
injustice because it fails to achieve
distributive justice in a broader sense. Remedying the plaintiff’s disadvantaged status
in the assessment of damages does not necessarily eliminate the group disadvantage
or stereotypes about members of the group. The result is that the claimant is preferred
“‘ Decoste, supra note 112 at 249.
… For instance, the protection of less powerful groups and individuals in society is at the heart of
most trespassory torts. Similarly, the contextual analysis of when to impose a duty of care and the
appropriate standard of care in negligence suits reflects support for substantive equality. See generally
John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 120;
Cooper-Stephenson, “Corrective Justice, Substantive Equality”, supra note 107 at 58-63.
116 See generally Peter Cane, ed., Atiyah’s Accidents, Compensation and the Law, 4th ed. (London:
Weidenfeld & Nicolson, 1987) at 212-14 [Cane, Accidents, Compensation and Law]; Fleming, ibid.
at 11-13; W.V.H. Rogers, Winfield and Jolowicz on Tort, 16th ed. (London: Sweet and Maxwell,
2002) at para. 1.28.
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over all other disadvantaged persons and could potentially be overcompensated.”7 The
claim that plaintiffs could end up being better off than they would have been had they
not been injured values working capacity only in relation to current structures of the
labour market. It undervalues the earning potential of members of disadvantaged
groups relative to the privileged in society, without recognizing the bias inherent in
that system, or the possibility of persons exceeding expectations about their socio-
economic prospects. It also ignores initiatives such as diversifying educational
institutions and commitments to employment equity that can improve the material
conditions of equality-seeking groups. These plaintiffs, because of their injuries, have
been deprived of the opportunity to prove themselves and should be given the benefit
of the doubt that they would have at least achieved an average income level. Even if
defendants end up paying more than they would have under the traditional method of
assessment, they are not any worse off, because they would have paid higher
compensation had their victims been from privileged backgrounds. Since defendants
do not usually select their victims, the socio-economic status of plaintiffs should not
make a difference in the defendant’s liability, particularly where the defendant’s
tortious conduct has deprived the plaintiff of the opportunity to have a fair chance in
life. The proposal under consideration is simply an attempt to remedy some of the
injustices in the status quo and ensure substantive equality particularly among young
plaintiffs in personal injury claims. While the result might appear limited in scope
because it has no ramification beyond the immediate litigants, it could in fact have far
reaching implications. It could set a precedent for subsequent cases involving similar
parties and be a catalyst for social change. Such decisions would expose the injustice
of the current system and its impact on marginalized groups, as well as the
undesirability of the status quo. The proposed approach could also be a blueprint for
legislative change with respect to the valuation of work in the market and the
assessment of damages for lost earnings generally. At the very least, it could hasten
the rate of wage convergence already underway in many sectors and encourage
initiatives to eliminate the wage gap in areas where there has hitherto been no wage
parity initiatives.
Substantive equality in the assessment of damages is by no means a perfect or
comprehensive solution to social inequities or even responsibility for injured persons
in society. Egalitarian assessment of damages will not benefit all members of
historically disadvantaged groups. Only the “fortunate” few who seek and obtain
compensation through the tort system would benefit from the proposal.’8 Not all
. See generally Wright, supra note 106 at 177, 180-81; Stephen R. Perry, “Tort Law” in Dennis
Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell Publishers,
1996) 57 at 71-72.
… Not all victims of accidental injury seek and obtain damages through the tort system. Failure to
institute action or succeed with a claim stems from a number of factors including lack of awareness
about the right to sue; inability to finance a claim or unwillingness to risk the financial consequences
of losing an action; inability to establish the technical requirements of liability such as duty, fault, and
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defendants may be adequately insured or in a position to spread the costs, with the
possibility that some individuals might disproportionately bear some costs of social
reform. But as I have already noted, this is unlikely. The defendant might also be a
member of a marginalized group and could be further disadvantaged without regard to
her own disadvantaged position under a distributive justice regime.”9 Members of
disadvantaged groups who are neither victims nor defendants might also have to
contribute to the cost of social change, for example through insurance premiums or
higher prices, but this does not make them any worse off. The current system already
disadvantages members of marginalized groups not only through depressed awards,
but also in them having to subsidize the privileged through insurance premiums and
the cost of goods and services.2 As well, they pay higher awards to their victims from
favourable socio-economic backgrounds with no hope of ever receiving such amounts
when they suffer similar injuries. Under a substantive justice regime, such defendants
and members of equality-seeking groups generally can at least be assured that their
losses would be equally valued as those of their privileged counterparts should they be
in a similar situation.
Conclusion
Rather than being an avenue for reinforcing and perpetuating inequalities, the tort
compensation system should strive to eliminate, or at least mitigate, the effects of
current inequalities and not remain complacent and content to support the status quo.
This may call for different considerations in the assessment of damages to promote
substantive equality as opposed to a commitment to formal equality as dictated by
restitutio in integrum. Insistence on formal equality in the assessment of damages is
also morally reprehensible. As demonstrated in this article, tort law has never been
aimed purely at corrective justice. Since the law has generally been an instrument for
creating and perpetuating discriminatory inequalities in society, the expectation that
the
in valuing human potential and awarding just
compensation is not unreasonable, even if the market fails to emulate the judicial
system. Modem tort law must strive at substantive and not formal equality at every
stage of the analysis. This should include considerations of substantive equality both
in the determination of liability as well as at the remedial stage. In the context of
claimants with established work history, this could mean avoiding the application of
female-specific contingencies in the interest of “just” compensation. For younger
tort system be egalitarian
causation; and resistance on the part of defendants. These are sufficient reasons to make fundamental
changes to our accident compensation system. However, no viable alternative has yet emerged, and it
is not the aim of this article to propose a solution. The objective of this article is modest: it is aimed at
internal reform of the current tort system to better compensate those few victims “fortunate” enough
to have been injured by a solvent tortfeasor regardless of gender, race, ethnicity, class, (dis)ability, et
cetera.
9 See Mclnnes, supra note 27 at 172.
1
20 See generally Cane, Accidents, Compensation and Law, supra note 116 at 172.
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claimants, compensation for impaired productivity should be based on average
earnings, for example, in the province or region, regardless of gender, race, family
background, et cetera. Substantive equality in the assessment of damages is consistent
with corrective justice. It is essentially a private, localized solution based on
correlativity between the injurer and the injured, although it is influenced by the
general problem of societal inequalities. In any event, defendants are not any worse
off because they would have been liable for the same amount of damages if they had
injured a person with favourable characteristics and/or socio-economic background.
This is a principled position as it avoids differential valuation of loss or human
potential based on arbitrary and discriminatory factors. It also avoids stereotypical
assumptions about marginalized groups. As well, such an approach is consistent with
human rights law and the Canadian Charter of Rights and Freedoms. It is hoped that
judicial change in the valuation of loss in personal injury claims will ultimately
influence change in the market and society.
