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Court Testimony from Experts @ BEC

Henhoeffer v. Lin et al.

[1999] A.J. No. 501 (QL) (Alta. Q.B.) [Lutz J., Judicial District of Calgary].

Cara Brown, a labour economist and expert in quantifying loss of income based on employability, very carefully and summarily took the court through a lengthy report to determine pretrial and post-trial losses using different retirement dates and the formulas delineating the plaintiff's deficits. From the whole of the evidence, the retirement date I accept for the plaintiff is age 65, and I will deal with that in some length later on.

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Richard H. Joyce, the chartered accountant and chartered business evaluator, was called by the defendant to essentially comment on Cara Brown's report. I found his evidence to be not totally helpful, but in saying that, he had the difficulty of being at a disadvantage in not having the direct contact and opportunity afforded Ms. Brown in preparation of his report.

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Finally, and to name but a few reasons why I fail to find strength in Mr. Joyce's evidence, he criticized Brown's percentage increase in earnings relying on a few hastily made telephone calls to local employers. Ms. Brown relied upon official Statistics Canada and other (though Federal) published information, and as Brown so rightly pointed out, Joyce's method is fraught with misunderstanding in the question and lack of interest of the person being questioned, and thus, is not reliable as officially published information.

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Although the plaintiff testified retirement was also envisaged at age 71, and Cara Brown's evidence was to that effect, I find that was an afterthought in light of the realization that the financial resources were depleting more rapidly than formerly anticipated, although I do, in the face of that, accept Cara Brown's evidence that self-employed persons tend to work longer than non-self-employed.

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Retirement is, as Ms. Brown testified, so very personal and affected by health, spousal influence and the like. The plaintiff would, it seems from the evidence, be self-employed, and thus, work longer using the information respecting the plaintiff and his wife's financial worth, their investments, Canada Pension Plan income and when the plaintiff took it. I am satisfied that projecting those numbers, the plaintiff had to work until age 65 to maintain his current standard of living, and in this respect, I adopt Ms. Brown's evidence in that regard. I say that despite the statistics of Ms. Brown suggesting persons in this category of education, training, gender and benefits available to him suggesting ages of 60 to 61 is the statistical norm. ... Secondly, Mr. Joyce utilized some unrealistic factors and assumptions to elevate the plaintiff's income in the future compared to the more realistic and practical basis used by Ms. Brown.

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I reiterate that I find the plaintiff competitively unemployable using the Cara Brown calculations with average earnings 1990 to '95 versus average earnings 1996, his pretrial loss (inclusive of pretrial interest) is $83,000; future loss, $68,000; for a total of $151,000 which I considered to be appropriate here together with the loss of Canada Pension Plan benefits of $3,000.