Rolfe v. Young, 2025 ONSC 2342

Court File No.: CV-18-66952
Date: 2025-04-15
Ontario Superior Court of Justice

Between:
Edward Rolfe, Plaintiff
and
Alaine Young, Defendant

Before: Bordin
Counsel:
J. R. Crannie – for the Plaintiff
K. A. McKague – for the Defendant
Heard: 2025-04-14

Ruling on Questions to be Put to the Jury

Overview

[1] In this jury trial, the plaintiff seeks damages for past loss of income, future loss of income, and loss of competitive advantage arising out of a motor vehicle accident that occurred when he was 10 years old. He is now 24.

[2] The defendant’s position is that questions as to whether the plaintiff has suffered damages for past loss of income, future loss of income, and loss of competitive advantage should not be put to the jury as there is an insufficient evidentiary basis to do so. The plaintiff submits that there is sufficient evidence for each of the heads of damages to be left with the jury.

[3] I ruled that the questions as to past loss of income, and loss of competitive advantage should be put to the jury, but the question of future loss of income should not, with reasons to follow. These are my reasons.

[4] As set out in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at para. 51, leave to appeal dismissed, [2012] S.C.C.A. No. 34803, whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to the jury. It is the duty of the court to determine whether there is such reasonable evidence. The court cited the following passage of Meredith J.A. in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.), at para. 50:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative […]

[5] The sufficiency of evidence required to permit a question to go to a jury is determined on a case-by-case basis: Desmond v. Hanna et al.; Henry v. Hanna et al., 2023 ONSC 4108, at para. 7, citing Loye v. Bowers, 2019 ONSC 7198, at para. 44.

[6] In determining whether to put a question to the jury, the court must review the evidence. As explained in Desmond at para. 8, any weighing of the evidence is limited. The court does not determine whether the plaintiff has met its burden to establish damages. The court must determine whether there is sufficient evidence such that a properly instructed jury could make a finding on the question without speculating.

[7] With respect to future losses, the court must bear in mind that the plaintiff need only prove a real and substantial risk that they will occur: Desmond, at para. 8.

[8] The parties also referred to the decision of the Court of Appeal for Ontario in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, which addressed the role of judges in assessing damages where there is limited evidence. At para. 61, the court wrote:

[A] trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases.

[9] The court went on to cite the decision in Martin v. Goldfarb (1998), , 41 O.R. (3d) 161, at para. 75, leave to appeal refused, [1998] S.C.C.A. No. 516:

I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

[10] At para. 64 of TMS Lighting, the court stated:

The quantification of damages occasioned by a proven loss is often a difficult task. In many cases, while loss is established, the evidence affords little support for a precise or reliable assessment of damages arising from the loss. For this reason, as Finlayson J.A. noted in Goldfarb, at para. 75, a trial judge confronted with a meagre evidentiary record on damages may be required to resort to educated “guess work”.

[11] Finally, at para. 65 of TMS Lighting, the court stated that it is not open to a trial judge to postulate a method for the quantification of damages that is not supported by the evidence at trial. Nor is it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunity to test or challenge at trial. A number of cases relied on by the parties and cited below have noted that although TMS Lighting involved a judge sitting alone, the principles are equally applicable to a jury.

Past Loss of Income

[12] In submissions, the plaintiff clarified that he is only seeking past loss of income with respect to his employment at Red Door Cucina in 2023 and 2024. The evidence is that during those two years the plaintiff earned $12,560.13 and $29,352.99, respectively. The plaintiff started working at Red Door Cucina in July 2023.

[13] The plaintiff’s evidence with respect to Red Door Cucina is that he did food prep and made pizza. He was given accommodations for set up and tear down of equipment at pop up catering events. He testified that he could not work full time because it was too much for him. He left there because the business model changed to providing dough for another restaurant and catering which required a lot more labour. When he left Red Door Cucina, the plaintiff was earning $21.50 per hour. He said he worked about 25 hours per week.

[14] The plaintiff’s brother, Robert Rolfe, testified that the plaintiff was limited in some of the things he could do at the Red Door Cucina in 2023 and 2024.

[15] David Maciulis, owner of Red Door Cucina, testified. Mr. Maciulis was told by the plaintiff that he had limitations in that he could not do heavy lifting and he could not work long hours. Mr. Maciulis accepted this and accommodated the plaintiff. He found the plaintiff to be a hard worker. Mr. Maciulis testified that the plaintiff needed help with big bags of flour, longer hours were difficult for him, and he could not do things like chop wood.

[16] Mr. Maciulis testified that he would have liked an employee who could work 44 hours per week and that he discussed with the plaintiff whether he could work more hours and the plaintiff said he could not. According to Mr. Maciulis, the plaintiff worked between 15 and 25 hours per week. For this reason, Mr. Maciulis hired Robert Rolfe.

[17] As further discussed below with respect to future loss of income and loss of competitive advantage, an expert report is not required or mandatory to establish such losses. In my view, an expert report is not required or mandatory to establish a past loss of income, although one may be of assistance in many cases.

[18] Considering the applicable legal authorities, I find that there is “reasonable evidence” to allow the question of past loss of income to go to the jury.

Future Loss of Income

[19] With respect to future loss of income, there is no rule governing when actuarial evidence is required to establish a loss of income claim: Fiddler v. Chiavetti, 2010 ONCA 210, at para. 63. The jurisprudence suggests that there is no requirement that a plaintiff obtain an actuarial assessment in every such case: Fiddler, at para. 64. Although it is customary that expert evidence is called regarding a wage loss claim, it is not a legal requirement to do so: Fiddler, at para. 65.

[20] As accepted in Fiddler at para. 65, the usual instruction to the jury is to suggest that if it finds that there will be a future loss of income it should determine the average annual loss, then consider the present value, then consider the various contingencies. These calculations are customarily explained by an expert witness, but the jury must make its own calculations whether or not there is expert evidence.

[21] As noted by C. Brown J. in Grujic v. Fine, 2024 ONSC 4877, at para. 2:

For questions of pecuniary damages, there must be a sufficient evidentiary basis upon which the jury can quantify those damages: Johnston v. Walker, 2017 ONSC 370 at para. 10; TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 at para. 65. The evidence must be reasonable in order to be put to the jury. Speculative evidence is not reasonable evidence and is not to be put to the jury. BM v. 2014052, supra, Ayub v. Sun, 2015 ONSC 6598 at para. 59.

[22] The plaintiff worked part time through high school and graduated from high school in July 2021. There has been no functional abilities assessment and no vocational assessment of the plaintiff. The plaintiff tendered evidence of his T4 income to date. No expert evidence was tendered as to future loss of income.

[23] The evidence is that since reaching adulthood the plaintiff has fairly consistently worked about 20 to 35 hours a week in restaurants doing primarily food prep and making pizza. There is evidence of the hourly wage earned by the plaintiff. The evidence is that the plaintiff is currently employed at a restaurant in Hamilton where he does food prep and makes pizza. He works about 20 to 25 hours per week. He does not have any accommodations at work but avoids carrying things in the basement and carrying a mop up the stairs as it might strain his back. As noted above, there is evidence that his former employer, Red Door Cucina, wanted the plaintiff to work more, but the plaintiff was unable to do so because of his neck and back issues.

[24] The plaintiff tendered no evidence of his plans for ongoing education or ongoing employment. There is evidence of how the plaintiff performed in school, but little to no evidence as to his educational or training prospects. There is no evidence that there is no type of employment that could be available to the plaintiff to accommodate his issues or of the income he could earn. There is no evidence of his efforts to seek more remunerative employment.

[25] Although there is some evidence that the plaintiff may have some limitations with respect to lifting, bending, standing or sitting for prolonged periods, there is no evidence that the plaintiff will not be able to work in the future. The plaintiff’s physiatry expert, Dr. Waseem, testified that the plaintiff is not disabled from employment now or in the future, but that the plaintiff will likely have more pain if he takes part in physically demanding tasks.

[26] The plaintiff presented no evidence with respect to his anticipated age of retirement. The only evidence is from Dr. Waseem which itself is speculative. Dr. Waseem testified that if the plaintiff becomes less resilient to his pain as he gets older, there is a substantial likelihood he may have to retire early. How early, was left unanswered. The plaintiff says that the jury can infer that because the plaintiff is young, he would not know when he would ordinarily retire, and it can assume a standard retirement age.

[27] At the conclusion of submissions, the plaintiff clarified that he is only advancing a claim of future loss of income with respect to early retirement. In other words, the prospect that the plaintiff would have to retire some number of years before some unknown retirement date.

[28] As noted, there is little to no evidence about the plaintiff’s intentions with respect to future employment, how long a person in the type of employment in which the plaintiff is engaged, or will be engaged, might work, what needs the plaintiff may have as to timing of retirement, or what income the plaintiff might be able to earn when he retires at some point 30 to 40 years from now.

[29] The evidence as to the likelihood or risk of early retirement is virtually non-existent and is itself speculative. Even on the lesser “real and substantial possibility” standard it does not rise to the level of reasonable evidence. Further, without the missing information it would be pure speculation on the part of the jury to calculate future loss of income or the present value of the future loss of income. As a result, the jury would have to pull facts and figures from thin air.

[30] In my view, there is no reasonable evidence upon which a jury properly instructed in the law could come to the conclusion that the plaintiff will suffer a future wage loss or calculate the amount of such a loss. Any such conclusion would be pure speculation.

Loss of Competitive Advantage

[31] Damages for a loss of competitive advantage are given as recognition of the fact that the plaintiff’s position in the labour market has been compromised because of the injuries: Ali v. Irfan, 2023 ONSC 3239, at para. 25, citing Mundinger v. Ashton, 2019 ONCA 7161, at para. 28.

[32] Justice Wilton-Siegel in Conforti (Re), 2012 ONSC 199, paras. 34-36 set out the essential elements of loss of competitive advantage:

The essential elements comprising the concept of a loss of competitive advantage are expressed in Pallos, at para. 24, citing an excerpt from Kwei v. Boisclair (1991), , 60 B.C.L.R. (2d) 393 (C.A.), at p. 399, where in turn Mr. Justice Taggart quoted with approval from Brown v. Golaiy, , at para. 8:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning 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 important point to be taken from these cases is that the loss of competitive advantage relates to a contingency that is additional to the customarily recognized contingencies that might affect an injured party’s future earnings, such as those set out by Dickson J. in Andrews, at p. 232: unemployment, illness, accidents and business depression, to which should be added mortality. The concept is directed toward the contingent loss of an individual’s future marketability ─ it may never occur but, if it does, it will do so in a manner that results in diminished income in the future. This raises the question of the relationship of the two concepts: loss of future earnings and loss of competitive advantage.

As described in the case law cited above, these concepts are distinct but related. An award for loss of future income relates to a probable loss of future earnings. On the other hand, a loss of competitive advantage, as demonstrated by the excerpt from Pallos, relates to a future contingency that could result in probable future income being more contingent than it otherwise would have been. Both concepts are addressed in the calculation of an injured party’s loss of future earnings, or diminished earning capacity, but in different ways.

[33] Finally, at paras. 44 and 45 of Conforti, the court explains:

[L]oss of competitive advantage is distinct from the concept of foregone future income that is probable as of the date of the calculation. To the extent that a court concludes that a party’s post-accident income will, on a balance of probabilities, be reduced to a specific level, the calculation of the present value of the loss of earning capacity is to be undertaken without regard to any loss of competitive advantage. A further contingency factor should only be introduced into the calculation of the party’s loss to address the loss of competitive advantage if the risk that the party will fail to earn income at that post-accident level, whatever that may be, is increased by the party’s injuries.

In many, if not most, cases of an award of loss of competitive advantage, the injured party has returned to the pre-accident level of income.

[34] A lack of expert evidence is not necessarily fatal to establishing a claim for loss of competitive advantage: Ali, at para. 27. Claims for loss of competitive advantage are less amenable to expert evidence and to precise calculations: Ali, at para. 41, citing Earl v. Lang, [1997] O.J. No. 739 (Ont. Gen. Div.), aff’d .

[35] A loss of competitive advantage is a prospective loss, and the standard of proof is the lesser “real and substantial possibility” standard: Ali, at para. 28, citing Day v. Haiderzadeh, 2017 ONSC 7319. See also Schrump et al. v. Koot et al. (1977), , 18 O.R. (2d) 337, at para. 22.

[36] In my view, it is evident from the differences between damages for loss of future income and for loss of competitive advantage that evidence equivalent to that which is required to establish a future loss of income is not required to establish loss of competitive advantage. As noted in Ali, a trier of fact can consider an award for loss of competitive advantage that is more holistic and less precise than a loss of future income award would be: at para. 42, citing Seyom v. TTC, 2018 ONSC 6848, at paras. 109-113.

[37] My review of the evidence regarding the plaintiff’s employment and education applies with respect to loss of competitive advantage as well.

[38] There is evidence that the plaintiff is somewhat limited in some tasks at work and that he works less, or misses work, because of his back and neck issues. There is evidence that his former employer, Red Door Cucina, wanted the plaintiff to work full time, but the plaintiff was not able to do so and had to leave that employment due to issues with his back and neck.

[39] As noted, there is expert evidence that the plaintiff may have some limitations with respect to lifting, bending, and standing or sitting for prolonged periods.

[40] The cases cited by the parties in their case book which have allowed the question of damages for loss of competitive advantage to be put to a jury have, in my view, required a low threshold of evidence to find that there is reasonable evidence such that the question may be put to the jury.

[41] In my view, given the nature of a claim for loss of competitive advantage and the lower burden of proof on the plaintiff, there is sufficient evidence that the plaintiff’s position in the labour market has been compromised and that he is less valuable and less competitive in the marketplace because of the injuries to put the question to the jury.

Conclusion

[42] I find that there is no reasonable evidence on which a properly instructed jury, acting judicially, in accordance with a judge’s instructions on the law, could reasonably calculate or quantify the plaintiff’s future loss of income. Accordingly, the question of the plaintiff’s future loss of income will not be put to the jury.

[43] However, I find there is reasonable evidence on which a properly instructed jury, acting judicially, in accordance with a judge’s instructions on the law, could reasonably calculate or quantify the past loss of income and any loss of competitive advantage. Accordingly, the questions on past loss of income and loss of competitive advantage will be put to the jury.

Released: April 15, 2025