What is the current state of the law on loss of earning capacity when assessing capital asset versus earnings?

Both the capital asset and earnings approaches are valid methods of assessing the loss of earning capacity: Perren v. Lalari at paras. 12, 32. However, in my view, even where a judge determines the capital asset approach is indicated on the record, the court should ground itself as much as possible in factual and mathematical anchors. Adopting the capital asset approach does not justify an undisciplined approach.

It can be helpful under either approach for the judge to consider the quantum of the award in light of the range of possibilities indicated by economic analysis. Mathematical aids and economic analysis facilitate a “bracketing” exercise that indicates the high and low extremities of possible awards in a given case, as was recently considered by this Court in Grewal v. Naumann, 2017 BCCA 158 at paras. 70‑73 (majority per D. Smith J.A.) and paras. 56‑58 (Goepel J.A., dissenting).