Statistical Census Data "Squarely Within the Admissible Class of Evidence"
The BC Court of Appeal published reasons for judgement today confirming that it is entirely appropriate for an economist to rely on statistical census data in discussing average earnings.
In today’s case (Smith v. Fremlin) the Plaintiff was injured in a motor vehicle collision. She was a recent law school graduate who just started her career. The collision caused injuries which limited her capacity to work. At trial the Court relied on an economists report which discussed average earnings for legal professionals in helping assess the Plaintiff’s diminished earning capacity. The Defendant objected arguing the report relied on inadmissible hearsay, namely statistical census data.
The trial judge found the defendant’s objections to be ‘nonsensical’. Despite this the Defendant appealed. The BC Court of Appeal dismissed the appeal fining statistical evidence is entirely appropriate in these circumstances. In reaching this conclusion the Court provided the following reasons:
[18] The appellants say the Wickson report ought not to have been admitted into evidence at trial. They do not object to the qualification of Mr. Wickson as an expert but say his report is defective and inadmissible in two respects. First, it is said to be based upon evidence that is hearsay. Second, it is said to be irrelevant because it measures the income earning capacity of a group to which Ms. Smith does not belong.
[19] The first of these objections, the hearsay objection, is unfounded. Mr. Wickson expressly describes the source of the data used in the preparation of his report. In addition to relying on published census data, he obtained a special tabulation providing education-specific 5-year age group income data from Statistics Canada. In my view, this data falls squarely within the admissible class of evidence described by Sopinka J. inR. v. Lavallee, [1990] 1 S.C.R. 852; it is information derived from enquiries that are an accepted means of arriving at an opinion within an economist’s expertise. The reliability of the data is supported by strong circumstantial guarantees of trustworthiness. It is, in words cited with approval in Lavallee, evidence of a “general nature which is widely used and acknowledged as reliable by experts in that field.”
[20] Such was the opinion of this Court in Reilly. There, the Court noted that while hearsay evidence cannot generally be introduced through the admission of expert reports into evidence:
[114] It is otherwise…with respect to the opinions of … economic experts based on the census data, which are routinely used by experts in their field …
[21] In my view, the words of Smith J.A. in Jones v. Zimmer GMBH, 2013 BCCA 21, are a complete response to the appellant’s objection to the Wickson report and support and justification for the judge’s decision to admit it:
[50] … Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband, [1967] S.C.R. 14 at 21, [1967] 2 C.C.C. 6; R. v. Lavallee, [1990] 1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.
[22] The second objection, that the Wickson report is inadmissible, as “wholly or largely irrelevant to the Plaintiff’s circumstances,” is equally unfounded. The appellants say the weight of the evidence at trial supported the conclusion that Ms. Smith would likely work within a limited range of the occupations open to a qualified lawyer. They say it was not helpful to receive and not appropriate for the court to rely upon a report describing the earning potential of all female lawyers in British Columbia (rather than, for instance, female lawyers in British Columbia practicing environmental or Aboriginal law in a not-for-profit setting).
[23] This objection should be considered in light of the generally accepted approach to assessment of claims for loss of income earning capacity, which is, first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff.
[24] Average earnings were found to be the proper starting point for the assessment of damages under this head in Reilly, even though there was some evidence of the plaintiff’s specific professional interests. This Court observed:
[122] The trial judge should have considered the possibility that the respondent might not have realized his professional goals or might have changed his goals. Qualifying as a lawyer opens up a number of career possibilities. It is reasonable to assume that the respondent would have remained in the profession. But he might not have developed the professional skills to achieve above-average earnings. He might have decided that he did not want to make the personal sacrifices often required to compete professionally at that level. Other interests, of which he had many before his head injury, or future family commitments, might have persuaded him to alter his goals. He might have chosen other disciplines within the profession with lower remuneration, such as prosecuting, working in the civil litigation departments of the federal or provincial government, or becoming in-house counsel in the private sector. It is well known that in the legal profession interests change and there is great mobility. In addition, there are many above-average lawyers with below-average incomes.
[123] As well, the possibility that the respondent might have earned more money than predicted should be considered, although we consider that the chance of this happening was relatively low given the evidence of the small numbers of lawyers in Vancouver who have achieved outstanding financial success. This award is intended to cover the respondent’s working life to age 70, a period of approximately 36 years from the date of trial. Many things can change during such a long period of time and present-day assumptions are far from immutable.
[25] Evidence of the earnings of the class of workers to which the plaintiff belongs is clearly relevant to the assessment of a loss of earning capacity. At some point, the evidence may be so general or vague as to be of little assistance but, in my view, that cannot be said of the statistical evidence used in this case. Evidence of the lifetime earning capacity of female lawyers in British Columbia, according to Mr. Wickson’s testimony in cross-examination, was the most specific data available. No further breakdown of incomes of female lawyers in this province by areas of practice is available. The Wickson report therefore was the best available evidence of what has been recognized as the starting point of the assessment of the loss of income earning capacity. It was properly admitted by the judge.
