Gender inequality issues front and centre in personal injury claim

In a recent decision from the British Columbia Court of Appeal, the Court was asked to determine whether it was appropriate for a Judge to use male labour market statistics when assessing income loss compensation for an injured female.

In assessing loss of compensation (in this case as a result of a motor vehicle accident) the Court will often consider labour market statistics to assist in estimating the loss.

ICBC, in defending the claim brought by the injured female, argued that it was an error in law to use labour market statistics for males to determine financial losses for a female. ICBC likely argued this position because in this case female labour market statistics would lead to a lower loss of income award for the injured female Plaintiff as compared to using labour market statistics for males.

In rejecting the argument from ICBC, the Court indicated that there is inherently nothing wrong with using male statistics to calculate loss for a female. The Court was of the view that in many cases, these kinds of statistics may incorporate historical gender-based pay inequality differences between males and females.

In particular, the Court of Appeal stated as follows:

Experts are frequently asked to estimate the income losses by using gender- specific historical income figures. Such figures may be useful where they can fairly be said to be the most accurate predictor of the lost stream of earnings.
However, there is authority for the proposition that the use of female earnings statistics may incorporate gender bias into the assessment of damages.

In essence, our Court of Appeal is recognizing that the use of female labour market statistics may be useful in certain circumstances, but to rely solely on those statistics in all cases involving injured female plaintiffs is unnecessary and may perpetuate historical gender biases related to employment income.

Greg Pratch is a lawyer and partner with Pushor Mitchell LLP. He practices in civil litigation with a particular focus of personal injury matters and employment law. In his personal injury practice, he has helped individuals injured in both BC and Alberta recover compensation for all types of injuries including whiplash, soft tissue injuries, chronic pain, broken bones, spinal injuries and brain injuries. In his employment law practice, Greg advises both employers and employees on all matters relating to employment, including wrongful dismissal, human rights issues and employment standards legislation. Greg also advises clients on general commercial disputes and tax disputes with the Canada Revenue Agency. Be sure to connect with Greg Pratch on Twitter @OkanaganLawyer. You can contact Greg at (250) 869-1194, or at pratch@pushormitchell.com.