Executive Summary: Key Legal and Evidentiary Issues

• Appellant challenged the trial judge’s exclusion of a claimed lost employment opportunity from damages assessment.

• The court found the resume submitted to the prospective employer contained false and unverifiable information.

• There was no written job offer or contract from the employer, weakening the claim of a lost opportunity.

• Evidence showed the employer's hiring process required reference verification, which had not occurred.

• Damages awarded were based on verified earnings and realistic future capacity to work part-time.

• The appeal to increase damages was dismissed due to lack of credible supporting evidence.

Facts and outcome of the case

Background and motor vehicle accident

The case arises from a motor vehicle accident in May 2014 involving the appellant, Mitchell Cohen, who was 40 years old at the time. He sustained soft tissue injuries that led to chronic pain, depression, and opioid use disorder. At the time of the accident, Cohen was a certified master electrician working part-time for contractors and teaching electrical trades. He had aspirations to establish his own electrical contracting business, which he later attempted before ultimately transitioning to a teaching role due to ongoing health issues.

Trial and damages awarded

Cohen sued for damages, particularly for past and future loss of earning capacity. He claimed that, but for the accident, he would have earned significantly more, including through a missed opportunity to work for RAM Consulting as an electrical superintendent. He sought a total of approximately $2.5 million in damages, asserting that the loss of this high-paying role was directly tied to his accident-related limitations.

The court awarded him $72,000 for past loss of earning capacity and $240,000 for future loss of earning capacity, totaling $312,000. These figures were based on a comparison between his actual earnings and the average income of an industrial electrician, adjusted for his realistic work prospects going forward. The court rejected the claim related to RAM Consulting, finding that Cohen’s resume contained exaggerated and unverifiable claims, including false references to work at a nuclear facility (TRIUMF). There was no written offer, and the employer’s hiring process required verification that could not have been completed given the resume’s inaccuracies.

Appeal and court findings

On appeal, Cohen argued that the trial judge erred by disregarding the alleged lost opportunity, asserting that a real and substantial possibility of employment existed. He relied on unchallenged testimony from a RAM supervisor who had expressed interest in hiring him. However, the court found no error in the trial judge’s conclusion. The supervisor’s recollection was deemed mistaken, and the court emphasized that no formal job offer could have been made due to the misleading resume and the employer’s mandatory verification process.

The court held that the trial judge had appropriately assessed the credibility of the evidence and had provided cogent reasons for excluding the RAM job from the damages calculation. The appeal was dismissed, and the original damages award of $312,000 was upheld.