Addressing The Gender Gap In Personal Injury Damages Assessments: An Option Other Than “Othering”? – Personal Injury

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” refers to “viewing and
treating a person or group of people as different from yourself and
most people. Othering can lead to discrimination and prejudice
against marginalized groups.”

In November 2021, I attended a Q&A session with Former
Supreme Court Chief Justice Beverly McLachlin as part of an
all-women lawyer’s conference. What follows is a heavily
paraphrased summary of one of the discussions, so I hope the former
chief justice will indulge my summarizing her remarks.

Perhaps unsurprisingly, given the context, one of the questions
asked was how we can marshal true equality between women
and men in the law?
How do we ensure that women are
given equal opportunity to advance in the profession, to take
leadership positions, and to enjoy both economic prosperity and
hierarchical parity with our male colleagues?
Her response
was pragmatic: women will not achieve economic equality, in the
legal profession or otherwise until there is legitimate sharing of
childcare responsibilities. While women (and people capable of
childbirth) still bear the greater burden of childcare, they will
continue to suffer the corresponding economic inequities. This
issue is systemic. It impacts women and child-bearing folks across
most, if not all vocational sectors, and results in lower wages,
lower attachment to the workforce, increased time away from
employment, and reduced opportunities for advancement.

Inequity in Personal Injury Litigation Assessments

Unfortunately, working in personal injury litigation, I see this
inequity being imposed on my female clients who are advancing
claims for loss of future earning capacity.

When the court is assessing the value of the plaintiff’s
future wage loss, it asks: what would this plaintiff have done for
work had the injury not occurred? What would their career path and
earnings have looked like? In many cases, particularly for young
Plaintiffs, the court relies on labour market data: amalgamated
stats of all BC residents at each level of education and their
corresponding average income levels, as a comparator for the
Plaintiff. Essentially: what is the average income earning capacity
for a BC female with the same level of education as the Plaintiff?
How does that compare to the earning levels of the Plaintiff now
that the injury has occurred?

But these stats are also gendered, and in using the female-based
stats, it incorporates the fact that many women take more time away
from the workforce to have and rear children, must prioritize
childcare and domestic duties over work, and are thus afforded
fewer opportunities for advancement with its correspondingly higher
income levels. In this way, the law perpetuates the systemic
inequality on women seeking compensation after an injury,
regardless of their actual intentions for family planning. Because
women, as an economic labour category, have reduced average income
and attachment to the workforce, this individual woman – this
plaintiff, who might be just at the outset of her career or
education – is taken to have a lower potential level of
income earning capacity against which we must judge her loss. It is
taking societal inequality and baking it into the fabric of our
jurisprudence, to the detriment of individual victims.

Fortunately, there has been recognition of this pattern in the
case law, to the extent that judges have instead opted to apply
male data and earning statistics when assessing the loss of future
earnings for a female plaintiff. See, for example, the comments of
Mr. Justice Willcock in
Gill v. Lai, 2019 BCCA 103:

[52] The respondent’s expert economist, Mr. Benning, used
labour market statistics for males in British Columbia when making
an allowance for the negative contingencies of part-time employment
and non-participation in the workforce. The trial judge accepted
this approach and rejected the submission of statistics for females
that should be used. He did so for two reasons: factors specific to
the respondent and a reluctance to use statistics that have the
effect of perpetuating discrimination. He wrote:

[130] In adopting the male labour market approach, I note:

a) since a young age, the plaintiff has shown a particular
adherence to the workforce and, in particular, the pharmacy

b) the plaintiff values financial independence (she saved the
funds for the down payment for the Cloverdale home while her future
husband studied dentistry in Manitoba); and

c) the plaintiff’s parents are in their mid-sixties and
are still working.

[131] I am also reticent to give weight to female labour market
contingencies which may have embedded discrimination: see Justice
Morellato’s discussion in Jamal v. Kemery-Higgins, 2017 BCSC
213 at paras. 96–99.

[53] The appellants say there was no evidence of any such
embedded discrimination. They say Mr. Benning confirmed
statistically females are more likely than males to work on a
part-time basis and, the appellants say, “there was no
suggestion in the evidence such difference arose because of any
issues relating to discrimination”. The appellants argue the
only evidence before the judge was female labour market
contingencies accurately reflecting the real and substantial
possibilities for the respondent.

[54] Judges can and do recognize income statistics may
incorporate historic and inequitable gender-based pay differences
and, as such, have increasingly taken a cautious approach to
gender-based income statistics. In
Crimeni v. Chandra, 2015 BCCA 131
, this Court said:

[23] Experts are frequently asked to estimate income losses by
using gender-specific historical income figures. Such figures may
be useful where they can fairly be said to be the most accurate
predictor of the lost stream of earnings. However, there is
authority for the proposition that the use of female earning
statistics may incorporate gender bias into the assessment of
damages. There is also authority for taking judicial notice of
convergence in gender incomes:
Steinebach v. O’Brien, 2011 BCCA 302.

[24] It is certainly not an error, in my view, for a trial judge
to recognize that the use of historical data can reflect such bias
and, to the extent, the circumstances giving rise to the bias may
be expected to diminish, to view the evidence as conservative.

[25] I can see no error in the judge’s consideration of
the plaintiff’s pre‑injury earning potential.

[55] In my view, the same can be said of labour market
contingencies. It is not an error to recognize that gender-based
contingencies can incorporate bias. Having said that, we must bear
in mind the quantification of damages necessitates an individual

[56] In the case at the bar, the trial judge did not fail to
deal with the parties before him. The respondent had borne
children, made effective arrangements for childcare, participated
on a full-time basis in the labour market, and was motivated to
continue to participate full-time. It was certainly open to the
trial judge to find she was unlikely to be affected by some of the
contingencies reflected in female labour market statistics, and
there was a reasonable basis upon which he could conclude the use
of statistical evidence of contingencies affecting males in the
labour market would result in a realistic prediction of the
respondent’s future. I would dismiss this ground of

“Not Like Other Women”

The issue, for me at least, is that this process – in
which female plaintiffs have to assure the court that they are
“not like other women,” that they would not take the
average level of maternity leave, that they would not have
sacrificed their career for the sake of raising children at all
– perpetuates the wage gap by only offering Plaintiffs the
solution of aligning with the other side of the binary. There is
seemingly no room to be an “average woman” and also
have a fulfilling, lucrative career. At its most reductive: you are
either a woman, and subject to the inherent financial inequities
that accompany that categorization, or you are a man.

My Conclusion

I recognize that individual plaintiffs cannot shoulder the
burden of eliminating societal injustices in the course of seeking
their own, individualized personal justice. However, I do believe
that, as a profession, there is room to have a more nuanced
discussion in our submissions, and ultimately in our decisions, to
address gender bias rather than just sidestep it.

As always: there is more work to do.

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