What happens when you’re seriously injured but still able to return to work, making the same amount of money as you did before?
You may not have a loss of income, but you could still have a claim for loss of competitive advantage.
Loss of Competitive Advantage
Damages for loss of competitive advantage are designed to compensate a plaintiff in recognition of the fact that their competitive position in the open labour market has been compromised as a result of their injuries.
Plaintiffs often return to work before they have fully healed. People need to work to survive and provide for their families. Sometimes, these plaintiffs are barely holding it together at work, and don’t know if they will be able to keep it up. Sometimes their duties are modified, and their job looks very different than it did before. Sometimes they have benevolent employers, who continue to pay them full wages even if their productivity and hours worked are far less.
In all of these scenarios, the plaintiffs are making the same amount of money. Yet in all of them, they have sustained a loss. They are not as valuable to their employer, or to their own business as they once were. As a result, their competitive position in the open labour marked has been compromised.
It is difficult to measure this loss. It can be measured as a future contingency that could result in the plaintiff’s future income being less than it otherwise would have been. It can also be measured by calculating the difference in value between the plaintiff’s pre-accident and post-accident business contributions.
Expert evidence can help estimate the loss. That said, a lack of expert evidence is not necessarily fatal to establishing a claim for loss of competitive advantage. Claims for loss of competitive advantage are less amenable to expert evidence and to precise calculations.
How do you prove this loss
It may feel like you need a crystal ball to prove this loss. How does anyone really know what the future holds for a plaintiff?
Fortunately, the plaintiff does not have to prove that it is “more likely than not” that the loss will occur (i.e., the balance of probabilities test). Courts have consistently ruled that for a loss of competitive advantage, the plaintiff merely has to prove that there is a “real and substantial possibility” of the loss occurring.
While the standard of proof is lower, and expert evidence is not necessary, the plaintiff still must bring some evidence to Court that shows their ability to work is impacted by their injuries. This could come from the plaintiff’s employer or co-workers, physicians, or the plaintiff themselves. It is typically best to have evidence from all of the above.
At Bergeron | Clifford, we have experience successfully advancing loss of competitive advantage claims. We martial the necessary evidence from your employer, care providers, and experts to tenaciously prosecute loss of competitive advantage claims and strive for fair compensation for your lost earning capacity even when it’s not reflected on your income tax returns.
If you’ve been seriously injured in an accident and sustained a loss of competitive advantage, call us today.
Sources:
1 Mundinger v. Ashton, 2019 ONSC 7161 at para 28
2 Mundinger v. Ashton, 2019 ONSC 7161 at para 29
3 Herrington v Brewer et al, 2022 ONSC 2852 para 22-26
4 Rolfe v Young, 2025 ONSC 2342 at para 34
5 Rolfe v Young, 2025 ONSC 2342 at para 35
ROBERT MURPHY
Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020. He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario. During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side. After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023.
