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The family lawyers and law clerks of Stephen Durbin and Associates are dedicated to your cause. Rest assured that our hearts and souls are brought to bear on your individual case. Our firm maintains what has been referred to as a “culture of excellence.” Your matter will always be given full and proper attention. Prompt return of your messages is a matter of course for us, as are clear explanations of procedure and strategy. Address: 1200 Bay St. Suite # 1201, Toronto, ON M5R 2A5, Canada Website: https://www.stephendurbinandassociates.com/ Contact Phone Number: 416-580-4291 Contact Person: Stephen Durbin Contact email: stephend@sdalaw.ca Business Hours: Monday - Friday: 9a.m.–5p.m.

What is ‘Loss of Competitive Advantage’ in Personal Injury Cases? In personal injury cases, “loss of competitive advantage” refers to an individual’s limited capacity to maintain earning potential after an accident. For instance, consider a swimming coach whose accident results in the loss of leg function. Given that actual swimming instruction relies heavily on physical movement, specifically in the lower limbs, this impairment would directly impact the coach’s ability to perform effectively in his job. As a result, this loss of competitive advantage is likely to affect the income earned due to the permanent limitations imposed by the injury. Recently, the case of Ali v. Irfan, 2024 ONCA 758, examined the implication of “competitive advantage” in depth. It displayed the importance of tangible evidence and the various challenges claimants face when asserting a loss of competitive advantage in the workplace due to personal injuries. Let’s get into some details! Case Background In this case, plaintiff claimed that she suffered a loss of competitive advantage at her workplace due to a motor vehicle accident. Her claim was initially rejected by a trial judge in the Superior Court of Justice on July 24, 2023, based on a jury verdict. Following this decision, Ali appealed to the Court of Appeal for Ontario, requesting that the jury’s verdict be overturned and the court itself assess damages for future loss of competitive advantage. However, the appeal was dismissed for several reasons. What was the Dispute in this Case? It has already been established that the plaintiff suffered from a motor vehicle accident, which led to a trial by jury. During the trial, the only issue highlighted was, “Has the plaintiff sustained a loss of competitive advantage at her workplace due to the motor vehicle accident she was involved in?’’ To assess this the jury was asked the following questions – Did the accident cause or contribute to a psychological or physical condition that the [appellant] continue to suffer from as of today? If the answer to question one is yes, has the [appellant] suffered a loss of competitive advantage because of the accident? What compensation, if any, should be paid for that loss of competitive advantage claim? After examining the first two questions, the jury concluded that the claimant did not suffer from ‘loss of competitive advantage at work’, eliminating the need to answer the third question. Dissatisfied with the jury’s verdict, Ali described it as “irreconcilable and unreasonable.”. Ali argued that she was not required to prove her case with absolute certainty; rather, she only needs to demonstrate a “real and substantial possibility” of a loss of competitive advantage due to her injuries. In other words, Ali needs only to show a reasonable chance that she experienced a disadvantage. She further stated that the respondent provided no evidence to disprove her claim. Based on this, as per Ali, the jury should have accepted her evidence regarding the lasting impact of the accident, as it logically follows that she has experienced a loss of competitive advantage in her career. What was the Ontario Court’s Analysis? The court rejected all the above submissions made by Ali. The court also applied a high standard of review to the jury’s verdict. What is a Standard of Review? It is a legal principle that determines the extent to which higher courts review decisions made by lower courts or juries. Ontario Court’s Analysis Cont.. In appeals, courts generally give strong respect (or “deference”) to jury decisions, meaning they’re reluctant to overturn them unless there’s a compelling reason. In this case, the jury had evidence of Ali’s prior medical issues and her involvement in not one but two motor vehicle accidents. Furthermore, the jury found it easy to discount her claims about how the accident impacted her teaching career, as her employer’s testimony contradicted her account. Hence, there was nothing to interfere with the jury’s findings. The appellant had the burden to prove a “real and substantial possibility” of loss, which she failed to meet according to the jury and subsequently, the appellate court. There were issues of credibility and causation with Ali’s case, and she also failed to meet the ‘burden of proof. Visit us - https://nanda.ca/family-lawyers-mississauga/

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