Case: Fadai v. Cully, 2015 BCCA 505 (CanLII)

Keywords: Mild Traumatic Brain Injury; Future Loss of Income Earning Capacity; Brown v. Golaiy (1985), 1985 CanLII 149 (BC SC); Sufficiency of Evidence; Sufficiency of Reasons


The Appellant, Thomas Cully rear-ends Anis Fadai in a motor vehicle accident. The accident occurs on Highway 1 in Burnaby when traffic unexpectedly stops in front of Mr. Cully. Mr. Fadai suffers numerous injuries from the accident. Although soft tissue injuries and severe headaches subside, he continues to experience difficulty regulating his behaviour and controlling his temper. The force of the impact drove Mr. Fadai’s car into the vehicle in front of him, and he has no memory of the accident.

At trial, Justice Shultes finds these outstanding behavioural symptoms to be the result of the motor vehicle accident. Mr. Fadai receives a total damages award of $373,452.77, broken down as follows:

$100,000.00 for non-pecuniary damages;

$19,950.00 for past wage loss;

$250,000.00 for future loss of income earning capacity;

$2,625.00 for cost of future care; and

$877.77 for special damages.

The Appellants take issue with the award for future loss of income earning capacity ($250,000.00), although they do not dispute the trial judge’s finding that Mr. Fadai established a “real and substantial possibility of a future event leading to an income loss”.

The Appellants seek an order setting aside the $250,000.00 damage award and substituting it for an award in the range of $75,000.00 to $100,000.00. Alternatively, the Appellants seek an order remitting the matter for a new trial to assess the value of Mr. Fadai’s future loss of income earning capacity.

Fitch J.A., of the Court of Appeal dismisses the appeal, affirming the “fundamental principle” that trial judges assess damages on the basis of their factual findings and not to calculate damages in accordance with a mathematical formula. Justice Shultes, in the court below, applied the “capital asset approach” to damage assessment and provided ample supporting reasons for his decision.


At trial, Justice Shultes quantified Mr. Fadai’s impaired future earning capacity under the “capital asset approach” and following considerations as set out in Brown v Golaiy (1985), 26 B.C.L.R. (3d) 353 at para 8:

  1. The plaintiff has been rendered less capable overall from earning an income from all types of employment;
  2. The plaintiff is less marketable or attractive as an employee to potential employers;
  3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
  4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The Appellants cited Woelk v. Halvorson, [1980] 2 S.C.R. 430 arguing that there was no evidence upon which to make an award for $250,000.00. Furthermore, the Appellants assert that the award granted was “excessive” and “wholly erroneous” – that the trial judge provided insufficient reasons to explain the award (not enough to permit meaningful appellate review).

Sufficiency of Evidence

The Court of Appeal found there was “…an ample evidentiary foundation” upon which the trial judge could reasonably conclude Mr. Fadai’s behavioural issues emerged after the accident.

For the Court, Justice Shultes was alive to the issue that Mr. Fadai’s problems with anger management and self-control were not new problems, and that the symptoms described may have been aggravations of a pre-existing condition. Mr. Fadai’s temperament and behaviour were held to have changed following the accident, as a consequence of the mild traumatic brain injuries sustained.

In coming to his conclusion, Justice Shultes noted the following: “Mr. Fadai was complaining of [these cognitive and behavioural symptoms] to Dr. Johnston as early as June of 2008”. Moreover, “no ambiguity emerged among the supporting witnesses about whether any of this behaviour [the Respondent’s difficulty with anger management] was exhibited before the accident” (see para. 46 and Fadai v. Cully, 2014 BCSC 290 at para. 200).

The Court of Appeal found the award for loss of future earning capacity rested on a finding Mr. Fadai’s disinhibition and incapacity for self-regulation would lead to a loss of employment and challenges in securing employment. It was not premised on Mr. Fadai’s capacity to perform work as a salesperson.

Citing Rosvold v. Dunlop, 2001 BCCA 1, the Court of Appeal confirmed damages are “assessed” and not calculated. In this case, the Court found Justice Shultes assessed the extent to which a serious and permanent problem would impair future earning capacity for a man who immigrated to Canada at 13 and showed promise in the sales industry without having established a definite career path – a “difficult task” according to Fitch, J.A.

The Court of Appeal found Justice Shultes was equal to this task, and the reasons for judgment in the court below were “detailed, thoughtful and well-reasoned”.

Sufficiency of Reasons

The Court found it was necessary for Justice Shultes to provide a “sufficient window” into the decision allowing for meaningful and appropriate appellate review.

Where courts adopt the “capital asset approach” to damage assessment, a trial judge is required to explain the factual basis of the award (see, for example: Morris v. Rose Estate (1996), 1996 CanLII 2906 (BC CA), 23 B.C.L.R. (3d) 256) and must consider the four questions outlined in Brown v Golaiy (1985), 26 B.C.L.R. (3d) 353. This enables the judge to make findings of fact related to the extent of a given plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income in the future.

Justice Fitch, J.A. found “…the Reasons for Judgment in this case are more than sufficient to permit meaningful appellate review. The trial judge analyzed the evidence in detail and made clear factual findings supporting his determination…”

For the Court of Appeal, requiring that trial judges do more would be to impose a challenging burden in cases of this kind. A mathematical formula need not be deployed to assess damages – rather, the task of the trial judge is to simply assess damages on the basis of factual findings made at trial.

Counsel for the Appellants: Lyle Harris, QC (Harris & Brun, Vancouver)

Counsel for the Respondent: Kristen Mundstock (Patten Thornton, Chilliwack)

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