BC Court of Appeal – OK for Judges To Use Male Earnings Statistics for Female Plaintiff

Reasons for judgement were published today by the BC Court of Appeal confirming it was not an error in law for a trial judge to rely on male labour market contingencies when assessing damages for an injured female plaintiff.
In today’s case (Gill v. Lai) the Plaintiff was injured in two collisions and proceeded to trial where she was compensated for various losses including future diminished earning capacity.   In assessing this loss the trial judge relied on statistical evidence for men.  ICBC appealed arguing it was legally wrong to do so for a female plaintiff.  The BC Court of Appeal rejected this argument finding that in the circumstances of this case there was no error in relying on male statistics in part because “income statistics may incorporate historic and inequitable gender-based pay differences“.
The Court provided the following reasons:

[52]         The respondent’s expert economist, Mr. Benning, used labour market statistics for males in British Columbia when making an allowance for the negative contingencies of part-time employment and non-participation in the workforce. The trial judge accepted this approach and rejected the submission statistics for females should be used. He did so for two reasons: factors specific to the respondent and a reluctance to use statistics that have the effect of perpetuating discrimination. He wrote:

[130]     In adopting the male labour market approach, I note:

a)    since a young age, the plaintiff has shown a particular adherence to the work force and, in particular, the pharmacy profession;

b)    the plaintiff values financial independence (she saved the funds for the down payment for the Cloverdale home while her future husband studied dentistry in Manitoba); and

c)    the plaintiff’s parents are in their mid-sixties and are still working.

[131]     I am also reticent to give weight to female labour market contingencies which may have embedded discrimination: see Justice Morellato’s discussion in Jamal v. Kemery-Higgins, 2017 BCSC 213 at paras. 96–99.

[53]         The appellants say there was no evidence of any such embedded discrimination. They say Mr. Benning confirmed statistically females are more likely than males to work on a part-time basis and, the appellants say, “there was no suggestion in the evidence such difference arose because of any issues relating to discrimination”.  The appellants argue the only evidence before the judge was female labour market contingencies accurately reflect the real and substantial possibilities for the respondent.

[54]         Judges can and do recognize income statistics may incorporate historic and inequitable gender-based pay differences and, as such, have increasingly taken a cautious approach to gender-based income statistics. In Crimeni v. Chandra, 2015 BCCA 131, this Court said:

[23]        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 earning statistics may incorporate gender bias into the assessment of damages. There is also authority for taking judicial notice of convergence in gender incomes: Steinebach v. O’Brien, 2011 BCCA 302.

[24]        It is certainly not an error, in my view, for a trial judge to recognize that the use of historical data can reflect such bias and, to the extent, the circumstances giving rise to the bias may be expected to diminish, to view the evidence as conservative.

[25]        I can see no error in the judge’s consideration of the plaintiff’s pre‑injury earning potential.

[55]         In my view, the same can be said of labour market contingencies. It is not an error to recognize gender-based contingencies can incorporate bias. Having said that, we must bear in mind the quantification of damages necessitates an individual approach.

[56]         In the case at bar, the trial judge did not fail to deal with the parties before him. The respondent had borne children, made effective arrangements for childcare, participated on a full-time basis in the labour market, and was motivated to continue to participate full-time. It was certainly open to the trial judge to find she was unlikely to be affected by some of the contingencies reflected in female labour market statistics, and there was a reasonable basis upon which he could conclude the use of statistical evidence of contingencies affecting males in the labour market would result in a realistic prediction of the respondent’s future. I would dismiss this ground of appeal.