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Court Testimony from Experts @ BEC
Excerpt from S.F.P. v. MacDonald
[1999] A.J. No. 117 (QL) (Alta. Q.B.) [Veit J., Judicial District of Edmonton].
[32] On matters relating to labour economics I have, in the main, preferred Ms. Brown's evidence to that of Dr. Munro and Dr. Jenkins for the following reasons:
- Ms. Brown's evidence related more closely to S.F.P. as an individual than to general statistics. We can, and must look to general statistics in the absence of other available evidence, but where there is evidence about a particular plaintiff, that evidence must always be preferred to the necessarily vaguer evidence derived from statistics. When we must look to statistics, we should use the best statistics available, and the evidence of Ms. Brown is that Statistics Canada's census data which is more reliable than the Alberta Wage and Salary Survey 1993.
- In particular, Ms. Brown's assessment of S.F.P.'s employment history is more accurate, including the fact that Ms. Brown ignored WCB payments, alimony income, social assistance payments and business losses, and that S.F.P.'s employment at the time of the accident provided virtually no fringe benefits. Ms. Brown's assessment that Dr. Jenkins has overstated S.F.P.'s fringe benefits positive contingency by 7.2% is therefore correct.;
- Ms. Brown correctly notes that Dr. Jenkins has underestimated the negative contingency for unemployment because statistics show that Canadian women with a high school education have experienced an average unemployment rate of 9.5% from 1990 to 1997. Therefore, Dr. Jenkins' allowance of only a 5% negative contingency for S.F.P. is unrealistic;
- Ms. Brown correctly notes that S.F.P. had many pre-existing health difficulties at the time of the accident, and it is not, therefore, appropriate to allot merely a 5% disability contingency in her particular case;
- Ms. Brown correctly notes that S.F.P.'s income at the time of the accident was not only substantially below the average income of Edmonton legal assistants, but her actual work was not that of a legal assistant, and her actual salary was almost identical to her average income from 1987 to 1994;
- Ms. Brown correctly assesses S.F.P.'s weak labour force attachment. The employment at Kulasa Bokenfohr does not suggest that the plaintiff will have a higher labour force attachment in the future because S.F.P. herself terminated that employment without having secured alternate employment in Calgary;
- Ms. Brown correctly notes that it is unrealistic for Dr. Jenkins to have assumed that by 1996, only two years after the accident, S.F.P. would have been earning $27,900 per year, or 70% more than she had been earning, on average, from 1987 to 1994. Ms. Brown correctly assumes that it is more realistic to discount S.F.P.'s salary expectations for the future by the same 15% that her salary was discounted at Kulasa, Bokenfohr from the census estimate. This reduces Dr. Jenkins' future loss of income estimate by 30%;
- Ms. Brown correctly estimates that S.F.P. would likely have retired at age 58 based on the salient factors affecting the retirement decision including health status, lack of attachment to the work force, lower occupational status and influences from the marital unit. (In this connection, it is not accurate to describe S.F.P. as a single mother since she had had a relatively stable relationship with Mr. Lazariuk for approximately 5 years, even though she told her health care providers that she was always on the point of terminating the relationship.) Moreover, Ms. Brown provides data to the effect that, since 1989, the average retirement age in Canada has remained largely unchanged (61.5) and that females in the clerical sector have been observed to retire at an average age ranging from 56.9 to 59.0 compared to the average for females across all occupations (60 to 61.5 respectively);
- Ms. Brown is correct in commenting on the fact that Dr. Munro's survey methodology for determining hourly rates for household services is not random because it is based in part on advertising in the Yellow Pages, which reflects higher advertising costs for the individuals offering the services;
- Ms. Brown is correct in assuming that although retired people do record more hours spent on household activities, it is impossible to determine how much of the activity constitutes a leisure activity and what portion of the activity takes longer because age impairs the efficiency with which the activity is performed. Using a $12 hourly replacement cost, including a 45% non-participating factor at age 65 and ceasing the calculation at age 80 lowers Dr. Jenkins's estimates by 30%;
- Finally, Ms. Brown is correct in stating that if there were to be any tax gross-up on the award for housekeeping, S.F.P.'s circumstances should be taken into account, i.e. that S.F.P. would receive no other income and that she would receive a lower award than the award predicted by Dr. Jenkins.