Superior Court of Justice Decision: Loss of Income Claim Awarded Due to Loss of Competitive Advantage

Back in November 2021, Michael Ellis and Robert Seredynski completed a trial via Zoom in front of Justice Smith of the Ontario Superior Court of Justice. Justice Smith ruled that the plaintiff suffered an income loss as a result of his injuries caused from a motor vehicle accident in 2015.

Read the full decision here.


Paul Herrington was injured in a motor vehicle accident back in September 2015. Prior to the accident, he worked as an auto repair mechanic. Due to the injuries in his left arm, Paul was no longer able to do manual labour required for auto repair work. Prior to the accident, Paul lived an active lifestyle, fishing, dancing, and completing home repair projects himself. His elbow tendon injury prevented him from doing these activities post-accident.

After the accident, Paul attended over 150 medical appointments with chiropractors, massage therapists, and other medical professionals. Although the appointments helped to mitigate his pain, he was still unable to work as an auto repair mechanic.

However, with all of these challenges, Paul did not give up. He hired apprentices to work the manual labor aspects of the job and switched to a management role in the business. Unfortunately, he lost a loyal client who sent a large volume of work to him, but he managed to keep the business profitable.

The Central Argument

During the trial in November 2021, defendant counsel argued that the plaintiff made more money after the accident in his new supervisory role, using his tax returns as evidence. Plaintiff counsel, Michael Ellis argued the following:

  1. The plaintiff client was losing business he would have been able to keep if he was able to fulfill the physical job duties of a car mechanic

In order to keep costs down and mitigate the risk of an unprofitable business, Herrington hired apprentices with little to no work experience, who he trained and mentored on how to fix cars coming into the shop. Although they were able to successfully repair cars, many clients, including those with long-term contracts chose to take their business elsewhere, where a more experienced car mechanic would be working on the jobs. This being a free and competitive market, the clients had every right to choose another car repair shop. However, if the plaintiff had been able to continue handling the work himself, Michael argued he would not have lost these long-term, loyal clients and would have been able to make more money.

  • The plaintiff’s injury caused a loss of opportunity and loss of competitive advantage that he should be compensated for

Using the SCC decision Badger as a guiding principle, Michael argued that as Herrington was unable to fulfill the job duties of an auto mechanic, he lost his competitive advantage and future opportunities. If he ever lost his business and had to look for a new job, no one would hire him as a car mechanic, and he would be out of work. Additionally, if he lost his apprentices to other employers, he would be unable to maintain his business, as he no longer had the ability to complete the work himself. Therefore, the economic loss is equal to the value of the opportunity lost due to the accident, despite the fact that the plaintiff continued working. In the plaintiff’s case, he was only able to fulfill 30% of the job duties of a car mechanic, so he should be compensated for the other 70% of a car mechanic’s salary that he is now unable to do.


In the decision dated May 16, 2022, Justice Smith awarded $894,468.00, which was nearly seven times the plaintiff’s pre-trial settlement offer. Justice Smith agreed that the plaintiff has suffered an economic loss due to his injuries, and he should be compensated for both the loss of business revenues and the loss of his competitive advantage.

The award breakdown is as follows:

  1. General damages for pain and suffering in the amount of $75,000.
  2. Pecuniary damages for loss of competitive advantage in the amount of $571,595.
  3. Pecuniary damages for loss of business revenues in the amount of $212,970.
  4. Past and future costs of care in the amount of $9,903.
  5. Damages for loss of housekeeping and handyman abilities in the amount of $25,000.
  6. Pre and post judgment interest in accordance with the provisions of the Courts of Justice Act

Contact a Will Davidson Lawyer for Your Loss of Income Claims

If you have a suffered an injury that prevents you from running your business or maintaining your position, contact Michael Ellis, Robert Seredynski, or fill out a contact form on our website. Our lawyers have access to economic experts, who can analytically prove the economic loss suffered, and have a long history of achieving fair settlements compensating you for your losses. The initial consultation is free, and our work is done on a contingency basis, so you will not pay until we win your case. Contact us today to learn more.

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