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Fridays with Rogers Partners

At our weekly meeting, Katrina Taibi discussed a recent decision of the Ontario Superior Court of Justice.


The Court considered whether an action for loss of competitive advantage (“LOCA”) should be dismissed by way of a non-suit motion or by declining to put the question to the jury.

Background Facts:

The plaintiff was riding a bicycle when she was struck by a car driven by the defendant.  The only issue at trial was LOCA.

The jury heard testimony from the plaintiff, her father, and her supervisor.  The defendant also testified briefly.  There was no expert evidence led at trial. 

Test for LOCA:

The test for LOCA comes from the 2012 case Conforti (Re):

[34] […] The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case.  Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. 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

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

LOCA is a question of fact and as such, expert evidence is not required.  The Court clarified that LOCA is a prospective loss and therefore the standard of proof is the lesser “real and substantial possibility” standard.  Based on review of case law, the Court concluded that an award for LOCA can be more holistic and less precise than an award for future loss of income.

Parties’ Positions:

The plaintiff’s position was that there was sufficient evidence to put the question of LOCA to the jury.  It was argued that LOCA is a future benefit and therefore, it does not need to be specifically quantified.

The defendants’ position was that there was no medical evidence to show that the accident still affected her.  Therefore, the defendants argued that the action should be dismissed by way of a non-suit motion or by having the trial judge decline to put the LOCA question to the jury. 

The Test for a Non-Suit Compared to the Test for Whether a Question Should be Put to the Jury:

The test for a non-suit was set out by the Court of Appeal in 2006 in Calvin Forest Products v. Tembec Inc.:

[13] […] The judge must conclude whether a reasonable trier of fact could find in the plaintiff’s favour if it believed the evidence given in the trial up to that point.  The judge does not decide whether the trier of fact should accept the evidence, but whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.

In comparison, the test for whether a question should be put to the jury was described in the 1908 case M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada):

[51] Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence.  There must be “reasonable evidence” to allow a question to go to the jury.  As Meredith J.A. stated in Milligan v. Toronto Railway,

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined.  It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.

The trial judge, Justice LeMay, stated that the most significant difference between these tests is whether there is “any evidence” (non-suit) or “reasonable evidence” (decline to put a question to the jury).  In applying either test, the trial judge should assess the plaintiff’s case on its most favourable basis and should not weigh the evidence.  Justice LeMay did not believe it was necessary to resolve the differences between these tests for the purpose of this case.

The trial judge acknowledged that the plaintiff’s claim for LOCA had little evidence.  However, regardless of which test was applied, Justice LeMay found that there was enough evidence for the question of LOCA to be put to the jury.