Claiming A Loss Of Competitive Advantage: Ali v Irfan, 2023 ONSC 3239

• Published date: 21 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: McLeish Orlando LLP
• Author: Mr Brandon Pedersen and Kate Hunter

This recent Superior Court of Justice decision arises from a collision where the Plaintiff was struck by a car being driven by the Defendant while she was riding her bicycle. Following the collision, the Plaintiff suffered a Loss of Competitive Advantage and claimed damages for such as part of the lawsuit against the Defendant.

What is a Loss of Competitive Advantage

Damages awards for a Loss of Competitive Advantage are awarded on the basis that Ontario courts have recognized that the loss of earning capacity is comparable to the loss of an asset. In other words, there is recognition that when a person's position in the labour market is compromised as a result of another's negligence, that loss is compensable. A plaintiff can claim for the probable loss of future earning capacity or the increased likelihood of unemployment, as a result of their injuries.

While the degree of loss is considered on a case-by-case basis, some factors include whether:

• The plaintiff has been rendered less capable overall from earning income from all types of employment;
• The plaintiff is less marketable or attractive as an employee to potential employers;
• 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
• The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

Background

In Ali v Ifran, the Plaintiff had a sparse work history, with frequent bouts of unemployment. The Plaintiff acknowledged that this was due to pre-existing difficulties with her mental health. However, she claimed that at the time of the collision, her anxiety had been improving. This was substantiated by her family physician's clinical notes, which referenced the Plaintiff's anxiety being in remission.

While seemingly struggling with her education prior to the collision, following the collision, the Plaintiff obtained an Honours Bachelor of Arts and Sciences, a Bachelor's in Education, a Master's of Education, and her qualifications to teach elementary school in Ontario. The Plaintiff testified that she experienced issues while completing her education and had required accommodations throughout her university career because of the injuries she sustained from the collision.

The Plaintiff is employed as an occasional teacher. From this position, one can seek employment as a Long-Term Occasional ("LTO") teacher. LTO's are paid more than occasional teachers...