Clients with Personal Injuries Later in Life: Helping them Get what they Deserve

In August 2022, an Ontario labour arbitrator decided that an employer’s age cut-off of 65 for long-term disability, did violate section 15 of the Canadian Charter of Rights and Freedoms but it was saved under section 1 of the Charter.[1] In making this decision, the arbitrator noted that setting the cut-off age at 65 was reasonable considering the nature and demographics of the employer and the fact that the cut-off was the result of collective bargaining.[2]

This decision would be of particular interest to a growing group of people. That group is working individuals aged 65+ and employed individuals aged 60 to 64. What damages can they claim that could substantively help them? General damages are capped at around $400,000 for unintentional torts and a loss of future income award until age 65 would only be of some economic assistance for a 62-year-old.

In the below sections, I will discuss damages that would benefit this growing group of people and how a forensic accountant can help obtain these damages.

Loss of Future Income Past Age 65

Courts often reward loss of future income damages to age 65. At the same time, courts have sometimes awarded such damages to age 68 or age 70. If counsel wants to have a future loss of income awarded past age 65, they should ensure that have proper evidentiary support. Past case law bears out this principle.

In the 2021 case of Constantinou v. Stannard, where the plaintiff experienced a severe dog bite at age 60, the court awarded nil for future loss of income.[3] Constantinou was a personal support worker (“PSW”) and she stated, if not for the accident, she did not plan to retire before age 70.[4] In awarding her nil, the court stated that she had experienced other injuries and her supervisor stated that most PSWs retire at age 65.[5] There was no “reasonable and substantial possibility that she could be capable of returning to work but for her shoulder injury.”[6] While no one can predict a court’s decision, a forensic accountant who tendered statistical evidence showing a substantial number of PSWs continue working past age 65 could have assisted the plaintiff. Interestingly, Constantinou retained an accountant to calculate her past loss of income.

A forensic accountant can also tender evidence that an injured plaintiff, due to personality traits or values, was someone who would probably work past age 65. In Foniciello, et al v. Bendall and Acculine, et al, the court decided that the plaintiff’s economic expert applied labour market participation rates that were too high for the plaintiff.[7] The expert calculated the plaintiff’s losses until age 68 but the court stated that the plaintiff was a fun-loving person and wages were not his “primary focus in life”.[8] It reduced the plaintiff’s future loss of income by ten percent.[9]

Future Loss of Housekeeping and Home Maintenance until age 70

This is an overlooked but important head of damage. If one cannot maintain their own home, they would have to pay for outside help and outside help is not inexpensive. In Pisani v. McDaniel, the court awarded future loss of housekeeping and home maintenance at $2,500 per year until the plaintiff reached age 70.[10]

While medical expert evidence would also be helpful when claiming this head of damages, a forensic accountant could provide calculations that consider inflation and changes to minimum wage. This could result in a higher amount of damages.

Future Costs of Care until age 70

OHIP is not limitless. If one does not have private insurance, they are looking at substantial expenses. In the above-mentioned Pisani case, the court awarded future costs of care until age 70.[11]

Forensic accountants will often calculate this head of damage.


A growing number of Ontarians are working past age 65 or are working from ages 60 to 64. If they suffer a personal injury, they and their counsel want to ensure that damages adequately compensate their needs.

Certain damages address these unique needs and forensic accountants are crucial in calculating these damages. Retaining a forensic accountant is part of returning some form of normalcy to a plaintiff’s life.

[1] Rayonier v Unifor, Locals 256 and 89, 2022 CanLII 75226 (ON LA) [Raynoier].

[2] Ibid.

[3] Constantinou v Stannard, 2021 ONSC 5585 at para 92 [Constantinou].

[4] Ibid at para 58.

[5] Ibid at paras 58-59.

[6] Ibid at para 61.

[7] Foniciello, et al v Bendall and Acculine, et al, 2016 ONSC 1119 at paras 113-119 [Foniciello, et al].

[8] Ibid at para 118.

[9] Ibid at para 119.

[10] Pisani v McDaniel, 2022 ONSC 224 at para 88 [Pisani].

[11] Ibid.

Written by

Jennifer Lynch is the President of Lynch & Associates. She is a qualified expert witness in the field of forensic and investigative accounting. Being a Chartered Professional Accountant, a Certified Management Accountant, a Certified Fraud Examiner, a Certified Forensic Investigator, and a Chartered Business Valuator, she offers her clients a variety of services.

Lynch has provided expert witness testimony in a wide variety of trials. Drawing on her strong business background, which includes an MBA from the Schulich School of Business, she provides forensic accounting and fraud examination services related to personal injury damage quantification services, insurance claims, matrimonial disputes, and fraud claims for a wide variety of clients.