



COURT OF APPEAL FOR ONTARIO

CITATION: Fulcher v.
    Conklin, 2014 ONCA 710


DATE: 20141020

DOCKET: C57009

Strathy C.J.O., Rouleau and Hourigan JJ.A.

BETWEEN

Edward
    Bruce Fulcher, Austin Fulcher, by his Litigation Guardian

Edward Bruce Fulcher and
    Novitherm Canada Inc.

Plaintiffs/Respondents

and

Catherine Conklin

Defendant/Appellant

David S. Thompson, for the appellant

Alan L. Rachlin, for the respondents

Heard: October 7, 2014

On appeal from the judgment of Justice Mary A. Sanderson
    of the Superior Court of Justice, dated April 8, 2013, with reasons reported at
    2013 ONSC 2013.

ENDORSEMENT

[1]

The appellant argues that the trial judge erred in her assessment of Mr.
    Fulchers past and future loss of income. Mr. Fulcher worked at Novitherm
    Canada Inc. (Novitherm), before and after suffering a spinal injury in a
    collision with the appellant. In the appellants submission, the trial judge
    should not have made an award on the basis of ownership income since there was
    no evidence that Mr. Fulcher was paid on the basis of his ownership interest in
    the corporation. Further, in the absence of proper financial statements for
    Novitherm and faced with the disorganized records of the corporation, she ought
    to have disallowed any claim for performance and ownership income. The
    appellant also maintains that the lack of evidence about specific lost sales is
    fatal to Mr. Fulchers claim, since it is impossible to correlate his physical
    injuries to any revenue loss.

[2]

The appellant also submits that in the absence of any business valuation
    and the absence of reliable business records, the trial judge could not explain
    how she arrived at her damage award. Without a clear formula to calculate damages,
    Mr. Fulcher should have been limited to nominal damages.

[3]

We disagree. Determining the amount for loss of earning capacity is a
    complex issue of mixed fact and law on which the trial judge is owed
    considerable deference. There was ample evidence allowing the trial judge to
    conclude that Mr. Fulchers compensation correlated with Novitherms overall performance.
    The trial judge found that Mr. Fulchers ability to work had been seriously
    impaired by the accident and she drew the obvious inferences that, as a result,
    Novitherm had lost business, and Mr. Fulcher had suffered a loss of earning
    capacity. These inferences were reasonable given that Mr. Fulcher was one of
    two primary business partners responsible for the corporations growth. The
    evidence established that Novitherm had no direct competitors, it had been
    experiencing exponential growth, and it was considering expansion into large
    potential undeveloped markets.

[4]

We do not consider the absence of a business valuation as preventing the
    trial judge from making a substantial loss of income or loss of earning
    capacity award. On the facts of this case, such a valuation was unnecessary.
    The claim was for Mr. Fulchers loss of earning capacity and not for the loss
    in potential sale value of Novitherm.

[5]

The trial judges damages award should not, in our view, be interfered
    with. The trial judge specifically stated that she rejected the damage
    assessment of both the appellants and Mr. Fulchers experts. However, she
    considered that the experts competing damage assessments provided outer limits
    to what might constitute reasonable compensation. She indicated that her task
    was to find the best damage determination that she could within the reasonable
    range, based on the evidence led at trial. She then set about determining an
    appropriate figure and explained how she arrived at her figure. Her failure to
    adopt and apply a specific formula does not, on the facts of this case,
    constitute an error.

[6]

We also would not give effect to the appellants submission that the
    trial judge ought not to have taken into account Mr. Fulchers ownership
    interest in Novitherm. In coming to an award for loss of earning capacity, the
    trial judge was entitled to take into account the wealth that would have been
    generated and left in the business but for Mr. Fulchers injury. This was one
    of the many factors she took into account. It was reasonable for her to do so.

[7]

The appellant also submits that the trial judge ought not to have
    allowed Novitherms
per quod
claim. In the appellants view, the trial
    judge erred in finding that there was an employer-employee relationship between
    Novitherm and Mr. Fulcher such that a
per quod
claim could be made out.
    We would not give effect to this submission. The characterization of the
    employer-employee relationship is largely a question of fact on which the trial
    judge is owed substantial deference. The trial judge correctly identified the
    law and, having made the necessary factual findings, applied the law to those
    facts. In reaching the conclusion that a
per quod
claim was available,
    the trial judge made no palpable and overriding error.

[8]

For these reasons, the appeal is dismissed. The respondents are entitled
    to costs fixed at $20,000, inclusive of disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.


