What is the test for determining whether a plaintiff has impaired their earnings capacity or capital asset capacity?

The same two-step process is followed, regardless of whether the earnings approach or capital asset approach is used. First, the plaintiff must prove a real and substantial possibility that his or her earning capacity has been impaired: Perren v. Lalari, 2010 BCCA 140 at para. 32. Second, if the plaintiff discharges his or her burden of proof, the court turns to an assessment of damages.

Regardless of the approach taken, per Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the general principles the court should apply when making an assessment under this head of damages are: a) the court should assess damages rather than calculate them mathematically; b) the standard of proof is not the balance of probabilities; the plaintiff need only establish a real and substantial possibility of loss, one which is not mere speculation, and hypothetical events are weighed according to their relative likelihood; c) allowances must be made for the contingencies that the assumptions upon which an award is based may prove to be wrong; and d) the overall goal of the assessment is to be fair and reasonable.