Loss of Competitive Advantage

Lawyer Consultation with David Gardiner


Many people wonder if they can recover damages (money) for loss of income in their personal injury claim even if they are back to work full-time.  The answer is yes, it is possible, depending on the circumstances.  If a person is able to return to work after an accident the type of damage is better characterized as a loss of competitive advantage or loss of earning capacity.

In the 1997 case Earl v. Lang it was set out by the Honourable Justice Morin that damages for loss of competitive advantage will be awarded if there is a real and substantial risk that a person may lose income in the future because of a competitive disadvantage sustained as a result of an accident.  It was determined that such assessments will not be arrived at on the basis of statistics and actuarial calculations but a general lump sum figure will be assessed having regard to all of the evidence in a particular case.

To date, the high-water mark for damages awarded for loss of competitive advantage in Ontario is $400,000.00 (the 2007 case St. Prix-Alexander v. Home Depot of Canada Inc.), but most cases are generally awarded in the range of $50,000.00-$100,000.00 for that head of damage.

In the local case Cerilli v. Ottawa, 2006 CanLII 40785 (ON SC), it was decided that “damages for loss of competitive advantage have been awarded where the injury could have some impact on the Plaintiff’s future employability”.  In this case, The Honourable Justice C. McKinnon awarded $80,000 for a generalized loss of competitive advantage based on all of the medical and other evidence before him.

In another local case Kania v. 1618278 Ontario Inc. c.o.b. as Heart and Crown Irish Pubs, 2015 ONSC 7042, The Honourable Justice Valen stated: “I find there is a reasonable and substantial risk that the plaintiff’s foot injury may prevent her from competing for positions at the level she wished to pursue and, in addition, may result in the loss of capacity to compete fully in the workplace for as long as she had planned. Her loss cannot be ascertained with absolute certainty or mathematical precision”.   Justice Valen then assessed the plaintiff’s loss of earning capacity/loss of economic advantage in the amount of $150,000. However, he then reduced the award to $50,000.00 to take into account various risk factors and contingencies.

So it is important to keep in mind that even if you are able to return to work after an accident and have not lost income per se, you may be still able to recover damages for loss of competitive advantage as part of your personal injury claim.

Our Personal Injury Lawyers in Ottawa can help maximize the results in your personal injury claim.