What is the standard of proof required for a claim for loss of future earnings capacity?

The standard of proof of actual past events is proof on a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities but they are instead given weight according to their relative likelihood. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.

In assessing an award for past and future loss of earning capacity, allowances should be made and the award must be fair and reasonable taking into account all of the circumstances: Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45.

A claim for past loss of income is to be addressed on the basis of a lack of capacity, rather than as a mathematical formula. While pre-accident earnings are evidence of the value of earning capacity, they are not necessarily determinative its value, and the overall fairness and reasonableness of an award must be considered after taking all relevant circumstances into account: Ibbitson v. Cooper, 2012 BCCA 249 at para. 19.