



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Rousta v. MacKay,









2018 BCCA 29




Date: 20180129

Docket:
CA44447

Between:

Yassaman Rousta

Appellant

(Plaintiff)

And

Sabrina W. MacKay

Respondent

(Defendant)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 20, 2017 (
Rousta v. MacKay
, 2017 BCSC 644, Vancouver Registry
M151252).






Counsel for the Appellant:



F.E. Hayman







Counsel for the Respondent:



S. Schwartz

G. Crouch







Place and Date of Hearing:



Vancouver, British
  Columbia

January 10, 2018







Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2018





Written Reasons by:





The Honourable Mr. Justice Savage





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Mr. Justice Lowry













Summary:

The appellant, Ms. Rousta,
was injured in a motor vehicle accident. She appeals an order dismissing her
claim for past loss of earning capacity and limiting her award for future loss
of earning capacity to $100,000 in relation to the prospects of her business
venture. Ms. Rousta submits that the judge considered the wrong standard
of proof for assessing loss of past earning capacity, and in wrongly giving no
weight to an expert report favourable to her cause. Held: appeal dismissed.
While the judge incorrectly articulated the standard of proof for assessing the
likelihood of past hypothetical events, stating it was the balance of
probabilities standard as opposed to the real and substantial possibility
threshold, this error was not material because the judge appropriately
concluded the expert report did not rise above the level of speculation. Ms. Roustas
evidence therefore did not meet the requisite standard of proof. Given the judges
inability to place weight on the expert report, it was appropriate for him to
assess loss of future earning capacity in the manner he did.

Reasons for Judgment of the Honourable Mr. Justice Savage:

I.

Introduction

[1]

Ms. Yassaman Rousta appeals the order of Mr. Justice Skolrood,
submitting he erred (1) in dismissing her claim for past loss of income
earning capacity, and (2) in awarding her $100,000 for loss of future
income earning capacity. She submits the amount of the award for future income
earning capacity was too low.

[2]

Ms. Rousta says the judge erred in applying the wrong standard of
proof regarding past earning capacity, in wrongly giving no weight to the
evidence of Dr. Silk, an expert witness favourable to her cause, and in failing
to consider important facts concerning her potential for earning income
contained in Dr. Silks report.

[3]

The respondent, Ms. MacKay, concedes that the judge erred in
articulating the test applicable to proof of past loss of income earning
capacity, but says that the wrong articulation of the test was not material to
the outcome. The respondent submits the judge considered the evidence
presented, including the evidence of Dr. Silk, but found that the
assumptions on which it was based were unproven and speculative, and therefore
properly gave the report no weight.

[4]

For the reasons that follow, I would dismiss the appeal.

II.

Background

[5]

On December 4, 2013, Ms. Rousta was injured in an automobile
accident in West Vancouver, when her car was hit from behind while she was
stopped at an intersection. Ms. Rousta suffered significant injuries, for which
the respondent was found liable. After an approximately three-week long trial, Ms. Rousta
was awarded $110,000 in non‑pecuniary damages, $85,000 for the cost of
future care, and over $18,000 in special damages. None of these awards are
contested on appeal.

[6]

The most controversial issue at trial was whether Ms. Rousta should
receive an award for loss of past and future earning capacity, and if so, in
what amount, in relation to the new launch of a business venture called Néange.
Néange is a line of beauty products, namely face creams, developed by Ms. Rousta.

[7]

Ms. Rousta presented evidence which she said supported an award of between
$8.6 million and $10.9 million, conservatively estimated, for her
loss of past and future earning capacity. However, the judge rejected the
evidence of Ms. Roustas principal expert, Dr. Silk, whose
calculations of her loss he found to be both speculative and unproven. The
judge declined to make an award for loss of past earning capacity, and made an
award for loss of future earning capacity of $100,000, relying on past decisions
of this Court.

[8]

The judge found that the plaintiff suffered soft tissue injuries to her
neck, shoulders and back, as well as an injury to her right hip as a result of
the accident. He accepted her evidence that she still experiences pain in these
areas, but has a full range of motion in her neck and back. He found that the
injuries will continue to cause her some pain and discomfort but are not by
themselves disabling (RFJ, para. 80).

[9]

The judge considered her other symptoms, namely balance and coordination
issues, headaches, sleep disturbance and resulting fatigue. He concluded that
her ability to work to the same capacity was affected but she has some
residual capacity that would enable her to operate Néange to some degree (RFJ,
para. 130). He did not accept that she cannot do anything to develop the
business, which is what has essentially happened since the accident (RFJ, para. 132).

[10]

With respect to the claim for past loss of income the judge said:

[133]    Where does this leave
the court in terms of assessing the plaintiffs claims for loss of past and
future earning capacity? With respect to the past loss claim, the evidence does
not satisfy me that Néange would have become a profitable business in the time
period between the date of the accident and the date of trial. I do not accept
that the business was ready to launch in January 2014, given that no seminars
had been scheduled and, according to Ms. Travers, the presentation was not
completed until late January or February. I do accept that at some point in 2014,
the plaintiff would have held some additional seminars but the evidence simply
does not support a finding that the business would have become profitable by
the end of 2016. I therefore decline to make any award for past loss of earning
capacity.

[11]

With respect to loss of future income earning capacity the judge said:

[134]    With respect to the claim for future loss, I have
found that the plaintiff is unable to work to the same degree as before the
accident and, as such, her capacity to earn income is diminished. However, I
have also found that I am unable to place any weight on Dr. Silks opinion
concerning the value of that diminution.

[135]    In the circumstances, I
adopt the approach taken in
Gojevic v. Philpott
, 2001 BCSC 748, affd
2002 BCCA 483. There, the plaintiff advanced a claim for loss of future earning
capacity based on her inability to pursue and build her business of selling
womens clothing through a direct home sales model, similar to the plaintiffs
model for Néange, due to her injuries suffered in the accident. There, as in
this case, the plaintiff had made no money from the business prior to the
accident. The evidence in that case was that the plaintiff also worked as a
nurse but saw the clothing business as something in the future she could build
into a viable business.

[12]

In
Gojevic
,

the judge awarded $100,000 for loss of future
earning capacity. That award was upheld on appeal. Although the award was made
in 2001, and therefore the passage of time would support a higher award today,
the plaintiff in
Gojevic
was 34 at the time of the accident and had a
much longer working life ahead of her than Ms. Rousta, who was 59 at the
time of the accident. The judge therefore concluded that an award of $100,000
would be reasonable for Ms. Roustas loss of future earning capacity.

III.

Test for Past Loss of Income Earning Capacity

[13]

With respect to past loss of income earning capacity, the judge quoted
from
Ostrikoff v.

Oliveira,
2015 BCCA 351, saying:

[103]    In
Ostrikoff v. Oliveira
,

2015 BCCA
351 [
Ostrikoff
]
,
the Court of Appeal considered claims for past
and future income loss based on projected earnings from a business formed
shortly before the accident.

[104]    In dealing with the past income claim, Madam Justice
Saunders said at para. 21:

it remains true that it is for the plaintiff to prove a
claim for past loss of earning capacity on a balance of probabilities, and that
an award must keep in touch with the evidence before the court. It seems to me
that the judge himself, in saying a projection of increased income would be
speculation, recognized that past income capacity loss predicated on increasing
earnings was not proved to the requisite standard.

[14]

The test to be applied to
hypothetical events
, past and future,
is whether there is a real and substantial possibility that the events in
question would occur.

[15]

In
Grewal v. Naumann
, 2017 BCCA 158, the Court described the
principles underlying this approach as follows:

[42]      The trial judge commenced his analysis by setting
out the principles that govern awards concerning past loss of opportunity and
diminished earning capacity:

[134]    The essential purpose of
an award for past loss of opportunity and diminished earning capacity is to
provide the plaintiff with full compensation for all of his pecuniary losses,
subject to rules of remoteness and mitigation:
Andrews v. Grand &
Toy Alberta Ltd.
, (1978), 83 D.L.R. (3d) 452, [1978] 2 S.C.R. 229, [1978] 1
W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, 19 N.R. 50. It is to restore, as best
as is possible with a monetary award, an injured plaintiff to the same position
he or she would have been in had the negligence not occurred. It is the
difference between the plaintiffs original position just before occurrence of
the negligent act or omission, and the injured position after and as a result
of such act or omission, that comprises the plaintiffs loss:
Athey v.
Leonati
, [1996] 3 S.C.R. 458 at paras. 34‑35.

[135]    As an initial threshold
issue, the plaintiff must demonstrate both impairment to his or her earning
capacity and that, in this case, there is a real and substantial possibility
that the diminishment in earning capacity will result in a pecuniary loss. It
is not to be an exercise in the abstract though at the same time is described
in
Andrews v. Grand & Toy Alberta Ltd.
, as gazing deeply into the
crystal ball. If established, quantification of the loss can be by either an
earnings approach or a capital asset approach:
Perren v. Lalari
, 2010
BCCA 140 at para. 32.

[136]    In
Brown v. Golaiy
,
(1985), 26 B.C.L.R. (3d) 353 (S.C.), Finch J. as he then was stated:

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.

[137]    Under any approach to
assessing damages, the court is to make an assessment as opposed to applying a
mechanical mathematical or statistical exercise.

[138]    Ultimately, the court must base its decision on
what is fair and reasonable in all the circumstances:
Parypa v.
Wickware
, 1999 BCCA 88.

[16]

In its analysis of the error below, the Court in
Grewal
said
this:

[43]

The
appellants submit that the trial judge erred and applied an incorrect lesser
burden of proof in his analysis of Mr. Grewals claim for loss of past
income earning capacity. They rely on this Courts comments in
Reynolds v.
M. Sanghera & Sons Trucking Ltd.
, 2015 BCCA 232 at paras. 15‑16
and in
Osterkoff

v. Oliveria
, 2015 BCCA 351

at para. 15.
Both cases suggest that the plaintiffs task in respect of past loss of earning
capacity is to prove that loss on a balance of probabilities as contrasted with
the task in claiming future loss of earning capacity, which requires a
plaintiff establish a real and substantial possibility of a future event
occurring that could result in the plaintiffs loss of earning capacity.

[44]

With
respect, I cannot agree. The appellants submission conflates the way courts
deal with alleged past events and the way courts deal with hypothetical events,
past or future. This fundamental distinction was explained in
Athey v.
Leonati
, [1996] 3 S.C.R. 458:

[27]      Hypothetical events (such
as how the plaintiffs life would have proceeded without the tortious injury)
or future events need not be proven on a balance of probabilities. Instead,
they are simply given weight according to their relative likelihood:
Mallett
v. McMonagle
, [1970] A.C. 166 (H.L.);
Malec v. J. C. Hutton Proprietary
Ltd.
(1990), 169 C.L.R. 638 (Aust. H.C.);
Janiak v. Ippolito
, [1985]
1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiffs
injuries will worsen, then the damage award may be increased by 30 percent of
the anticipated extra damages to reflect that risk. A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation:
Schrump v. Koot
(1977), 18 O.R. (2d) 337 (C.A.);
Graham v. Rourke
(1990), 74 D.L.R.
(4th) 1 (Ont. C.A.).

[28]      By contrast, past events
must be proven, and once proven they are treated as certainties. In a
negligence action, the court must declare whether the defendant was negligent,
and that conclusion cannot be couched in terms of probabilities. Likewise, the
negligent conduct either was or was not a cause of the injury. The court must
decide, on the available evidence, whether the thing alleged has been proven;
if it has, it is accepted as a certainty:
Mallett v. McMonagle, supra
;
Malec
v. J. C. Hutton Proprietary Ltd., supra
, Cooper-Stephenson,
supra
,
at pp. 6781.

[29]      This point was expressed
by Lord Diplock in
Mallett v. McMonagle, supra
, at p. 176:

The role of the court in making an
assessment of damages which depends upon its view as to what will be and what
would have been is to be contrasted with its ordinary function in civil actions
of determining what was. In determining what did happen in the past a court decides
on the balance of probabilities. Anything that is more probable than not it
treats as certain. But in assessing damages which depend upon its view as to
what will happen in the future or would have happened in the future if
something had not happened in the past, the court must make an estimate as to
what are the chances that a particular thing will or would have happened and
reflect those chances, whether they are more or less than even, in the amount
of damages which it awards.

[45]

The
governing authority in this Court is
Smith v. Knudsen
, 2004 BCCA 613. In
Smith
, this Court, after an extensive review of the authorities,
rejected the proposition that a claim for past loss of opportunity had to be
established on a balance of probabilities. Rowles J.A. wrote for the
court. She explained that the plaintiff in the first instance was required to
establish both liability and causation on a balance of probabilities. This
required the plaintiff to establish that the respondent's negligence, in whole
or in part, caused the accident, and that the injuries the appellant sustained
in the accident caused or contributed to the loss for which damages were sought
(para. 26).

[46]

Rowles J.A.
then went on to discuss the assessment of damages. She noted that the same test
applies regardless of whether you are assessing past or future loss of earning
capacity. In both situations the judge is considering hypothetical events. She
reasoned:

[29]       What would have happened in the past but for the
injury is no more knowable than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events.

[17]

As can be seen from the above, the standard for the proof for
hypothetical past events, like hypothetical future events, is the lesser real
and substantial possibility threshold. This standard can be contrasted with
the standard of proof for past events, which is on the ordinary civil balance
of probabilities standard, and alleged events which do not rise to the real
and substantial possibility standard because they constitute mere speculation.

[18]

In his analysis, the judge considered the evidence led regarding Néanges
prospects, and concluded that the evidence regarding the business was, at best,
speculative. The judge held Dr. Silks projections do not rise above the
level of speculation (RFJ, para. 109). Accordingly, he determined no
award for past income loss was merited and rejected Dr. Silks analysis with
respect to loss of future earning capacity.

[19]

Ms. Rousta submits that the incorrect articulation of the test relating
to past income loss infected the judges approach to loss of future earning
capacity. That is because, in part, the method used to prove such alleged
losses was based on the expert analysis of Dr. Silk. Ms. Rousta
argues that in the circumstances of this case it was, at the very least,
appropriate to assess her losses with reference to Dr. Silks report. In
oral argument she submitted they should be assessed as a percentage of the
range provided by Dr. Silks report.

[20]

In my view, if Néanges prospects, as described by Dr. Silk, did
not rise to the level of a real and substantial possibility, as they were merely
speculative, then the judges wrongful articulation of the test was not material
to the outcome of the case. It is necessary, therefore, to consider whether the
judge made a palpable and overriding error in finding that the earnings
approach proffered did not rise above the level of speculation.

IV.

Past and Future Earning Capacity Claims

[21]

The judge concluded that the analysis of Dr. Silk did not rise
above the level of speculation for three principal reasons: (1) consideration
of the evidence regarding the development of the business opportunity up the
point of injury, (2) the failure to address key elements of a successful
business plan, and (3) the basic assumption that postulated the plaintiff
was unable to pursue the opportunity as a result of her injury. In the result,
he found the report unhelpful and afforded it no weight in his analysis of the
losses.

[22]

Ms. Rousta argues that it was an error for the judge to admit the report
and then to give it no weight. However, as the judge correctly noted, the
admissibility of expert evidence is a different inquiry than the weight to be
given to such a report (RFJ, para. 118). Simply put, an expert report may
be admissible, but its conclusions rejected or afforded no weight.

[23]

I turn now to the judges analysis of Dr. Silks expert report, and
his related consideration of past and future earning capacity.

(1)  Past Business Performance

[24]

Ms. Rousta submitted that she had been working on this business for
some 10 years prior to the motor vehicle accident. Ms. Rousta estimated
she had spent over $350,000 of her own money in development. Notwithstanding
those efforts, the actual performance of the business had not proven
financially viable.

[25]

For the years 2006 to 2014, the business had accumulated deficits of $276,813
and had not in any year broke even or generated a profit. During its best year
(2006), Néange had a net loss of $12,349, and, in the most recent pre‑accident
year (2013), it had a net loss of $36,469 (RFJ, para. 35).

[26]

With respect to the past performance of the business, the judge said:

[123]

A second concern with Dr. Silks
report is that it ignores that past earnings performance of Néange which, as
noted previously, had accumulated losses of about $250,000 by June 30,
2013, the last fiscal year before the accident. Dr. Silks explanation for
not considering past performance was that the plaintiff had not previously
identified a preferred sales methodology. That may be so, but it is difficult
to accept that past performance is wholly irrelevant to future success.

[27]

Ms. Rousta, however, submits that past performance in this case is
not a good indicator of the viability of the business, because she is a
perfectionist

and the preferred
sales methodology was not determined until 2011. However, the judge found that
she did not work full time on the business and found that the desultory
progress called into question her commitment. The judge said:

[128]    Two other factors undermine the plaintiffs income
loss claims as presented. First, it is apparent on the evidence that she did
not work full-time on developing Néange since leaving Dior in 2004. While there
was clearly considerable time spent initially developing the products and
sourcing suppliers, subsequent efforts to market and sell the products were
somewhat sporadic. That is particularly so in the years since 2009, which was
the year that sales revenues peaked at approximately $46,000. The following
year, sales revenues fell precipitously to $3,429, which the plaintiff
attributed to the recession and to the loss of her U.S. distributor. However,
apart from attending one trade show and talking to two shopping channels, the
plaintiff appears to have taken minimal steps to build the business or
recapture the market that she had developed in the U.S.

[129]    Further, the plaintiff
did not adequately explain why, after the successful 2011 seminar that led her
to focus on a direct sales model, she did not do more to pursue that model
immediately; for example, she did not explain why her home seminar presentation
was not completed until early 2014. The clear impression is that it is because
she was not in fact working on Néange full-time. This calls into question her
commitment to spending the time and effort necessary to build the business to
the degree contemplated by Dr. Silks projections.

[28]

It cannot be said that the judge erred by considering past business
performance and the desultory progress of the business as factors worthy of significant
consideration in determining whether the losses proposed by Ms. Rousta
rose above the level of speculation. He considered, and rejected, Dr. Silks
reasons for not factoring in this past performance. In this case, the evidence
was that Ms. Rousta had worked on N
é
ange
for some 10 years and it had never been profitable. In my view, it was
open for the judge to consider this as a factor in rejecting the analysis as
not rising above speculation.

(2)  Business / Business Plan

[29]

Ms. Rousta represented that significant initiatives by Néange were
incipient as of the date of the accident. She had spent many years considering
and developing her business, and her evidence was that she intended to newly
launch Néange with seminars beginning in January 2014, within a month or two of
the accident.

[30]

In relation to her business plan, Ms. Rousta submitted that she had
two key employees to assist her in the business, Wendy Travers, who was to
assist in presentation development, and Sima Hirbod, who would give seminars.
Both of these persons figured significantly in the assumptions made by Dr. Silk.

[31]

With respect to Ms. Travers, Dr. Silk said:

22.       In October 2013, Ms. Travers
moved from Paris to Vancouver for the purpose of working with Ms. Rousta
in launching Néange. During the next few months, she settled into a condo,
renovated it, and worked very closely with Ms. Rousta in developing the
seminar presentation. She put in an average of 25 hours per week working on Néange.
She anticipated being able to support herself financially through the sales of
Néange products.

[32]

With respect to roles of Ms. Travers and Ms. Hirbod, Dr. Silk
said:

30.       Starting in January
2014, Ms. Rousta planned on holding six seminars per month for the first
two months. Néange had three people committed to delivering the seminars: Ms. Rousta,
Ms. Travers, and Sima Hirbod, a former dermatologist office assistant who
also worked as an esthetician. The 12 sessions held in the first two months
would be conducted by Ms. Rousta and Ms. Travers with Sima Hirbod
attending to observe, learn and help refine the presentation. Starting in the
third month, Ms. Rousta, Ms. Travers and Sima Hirbod would deliver 6
seminars each for a total of 18 seminars per month. Thereafter, they would each
continue delivering 6 seminars per month.

[33]

However, the judge found that Ms. Travers intended to participate
only to supplement her income from other sources and the fact that she left to
find other employment within three months of the accident was indicative of her
level of commitment to the business (RFJ, para. 113).

[34]

In cross-examination, Ms. Hirbod described her proposed role in the
following way:

Q         Did, ah, Ms. Rousta ever ask you to
present a sales seminar in someones home?

A          Ah, she told me thats her plan, but, of
course,
(indiscernible)

told her, so I dont have any friends
or I dont have that opportunity to I can threw a party or seminar in my home
or my friends.

Q         And -- and why did you say that?

A          Why?

Q         Yeah.

A          So because I didnt have that opportunity.

Q         Sorry, and -- but what -- what do you mean by
you didnt have the opportunity?

A          So I didnt have that chance to threw a party
at my home, or any of my friends didnt, they were not interested.

Q         Your -- your
friends were not interested?

A          No.

[35]

The judge held that Ms. Hirbod appeared to know little about the
products and she showed minimal interest in hosting or presenting at seminars (RFJ,
para. 114).

[36]

Ms. Roustas plan, as outlined by Dr. Silk, required the
holding of seminars conducted by sales associates to interested customers. The
plan was to hold 462 seminars by the end of year one, 1650 seminars by the end
of year two, 3702 seminars by the end of year three, 6,618 seminars by the end
of year four, with projected attendance growing from 5,544 persons in year one
to 79,416 by the end of year four.

[37]

Despite these outlined plans, the judge found that as of December 2013
no seminars had actually been scheduled and no hosts had been recruited. Moreover,
Ms. Rousta had only held one informally organized seminar in 2011 (RFJ, para. 111).

[38]

With respect to Ms. Roustas plan to recruit and retain sales
associates, the judge found it to be both vague and unrealistic (RFJ, para. 111).
As the judge noted, the assumption that Ms. Rousta could have recruited
and retained the projected number of sales associates and held the projected
number of seminars underpinned Dr. Silks analysis (RFJ, para. 110).

[39]

Ms. Rousta objects to the characterization of her plan by the
judge. She testified to doing significant seasonal hiring for sales staff for
cosmetic firms in the past, and as a component of her prior employment. While
that may be so, Ms. Rousta testified as follows regarding her actual scheduling
efforts prior to the accident:

In addition to that, I had talked
to six of my friends would -- that they had -- said they were completely open
to host a place -- a party at their place. Or seminar, if you want to call it.

[40]

The judge further found that no evidence was led to show how Ms. Rousta
or Néange would be able to support the hosts and sales associates or manage
and distribute the products purchased (RFJ, para. 115).

[41]

In arguing her case before us, Ms. Rousta points to passages in the
evidence which she says supports her contention that she considered many issues
connected with the successful launch of her business, and that she herself
possessed qualities that would make that business successful. For example, she
points to evidence that part of the distribution plan was that sales associates
would pick up supplies from Ms. Rousta who stored them in her garage.

[42]

Although Ms. Rousta had a supply of N
é
ange
products in her garage, there was no evidence that Ms. Rousta had been in
contact with the supplier in recent years to determine if it could or would
supply the anticipated increased volumes (RFJ, para. 117). In response to
Dr. Silks projected expansion of the business beyond British Columbias
lower mainland, the judge noted that there was no evidence about how products
would be distributed throughout that expanded network (RFJ, para. 116).

[43]

In this case, the findings of the trial judge, absent an error in
principle, or a wholly erroneous estimate based on an inordinately high or low
award, are entitled to deference:
Reynolds v. M. Sanghera & Sons
Trucking Ltd.
, 2015 BCCA 232 at para. 14. Absent a manifest or
palpable and overriding error, an appellate court should not interfere with a
trial judges assessment of damages:
Jarmson v. Jacobsen
, 2013 BCCA 285
at para. 14;
Fan v. Chana
, 2011 BCCA 516 at para. 13.

[44]

It
is not the role of this Court to reweigh the evidence in respect of the
inference-drawing process. As set out in
Nelson (City) v. Mowatt
, 2017
SCC 8 at para. 38:

It is certainly possible to weigh parts of the
evidence differently than the chambers judge did. The possibility of
alternative findings based on different ascriptions of weight is, however, not
unusual, and presents no basis for overturning the findings of a fact-finder.
It is not the role of appellate courts to second-guess the weight to be
assigned to the various items of evidence
.

Absent palpable and overriding
error  that is, absent an error that is plainly seen and has affected the
result  an appellate court may not upset a factfinders findings of fact (
Housen
v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6
and 10; see also
H.L. v. Canada (Attorney General)
, 2005 SCC 25,
[2005] 1 S.C.R. 401, at para. 55).
The standard of palpable and
overriding error applies with respect to the underlying facts relied upon by
the Trial Judge to draw an inference, and to the inference-drawing process
itself
(
Housen
, at para. 23).

[Emphasis
added.]

[45]

In contrast to N
é
anges
actual desultory track record, the envisioned business was a multimillion-dollar
enterprise with hundreds of sales associates in several countries. In my view,
it was open to the judge to conclude that the evidence, considered as a whole,
did not rise to the requisite real and substantial possibility threshold.

(3)  Impact of Injury on Business

[46]

The judge also found that Ms. Rousta was not so disabled as to
preclude her from pursuing the business in any event. While he accepted that
her injuries would impact her ability to work to the same level as she could
prior to the accident, she retained a residual capacity to work. In support of
this finding, the judge noted her success in participating in the seminars organized
by Dr. Silk (
RFJ, paras. 130‑31).

V.

Conclusion

[47]

While Ms. Rousta emphasizes the trial judges incorrect
articulation of the test for past loss of earning capacity at the beginning of
his analysis, I have concluded that the error was not material to his reasons,
as he found that the track record of Néange did not support a past income loss
claim nor, as presented by the evidence of Dr. Silk, present a scenario rising
above the level of speculation for a loss of future earning capacity award.

[48]

Given his inability to place weight on Dr. Silks expert opinion,
the judge chose to assess damages for loss of future earning capacity in a
manner similar to that accepted by this Court in
Gojevic
, taking into
consideration the date of that award and the relative age of Ms. Rousta,
as discussed above. I see no error in that.

[49]

It is, then, for these reasons I would dismiss the appeal.

The
Honourable Mr. Justice Savage

I agree:

The
Honourable Chief Justice Bauman

I agree:

The Honourable Mr. Justice
Lowry


