BC Court of Appeal: Salerno v Sahota Costs Awarded After Damages Reassessment

• The British Columbia Court of Appeal awarded appeal costs to an appellant who successfully challenged a jury's award for lost future earning capacity.
• In Salerno v. Sahota, 2026 BCCA 182 and 2026 BCCA 354, the appellant's initial jury award for lost future earning capacity was $50,000, despite counsel arguing for $512,640-$776,739.
• The appellate court set aside the $50,000 award and remitted the issue for a judge-alone reassessment.
• The appellant was deemed substantially successful on appeal, entitling her to costs and an opportunity to pursue a significantly higher award.

The decision underscores that even a partial victory on appeal, particularly one that opens the door to a potentially much larger damage award, can constitute 'substantial success' warranting costs.

A woman who sustained injuries in a motor vehicle collision was awarded appeal costs by the British Columbia Court of Appeal after successfully challenging a jury's damage assessment. The incident occurred when a vehicle, owned by one respondent and driven by another, rear-ended her car after she had stopped at a traffic light. At the subsequent trial, liability for the collision was admitted by the respondents.

The appellant initially sought damages exceeding $1.5 million. A significant portion of her claim related to lost future earning capacity, with her legal counsel arguing that the collision-related injuries caused a 30 to 50 percent impairment of her future earning potential. Counsel estimated this impairment merited damages ranging from $512,640 to $776,739, also suggesting the jury could apply the same valuation method for a different impairment percentage if deemed appropriate.

Ultimately, the jury awarded a total of $174,000 in damages. This sum comprised $100,000 for non-pecuniary damages, $50,000 specifically for the loss of future earning capacity, and an additional $24,000 covering other pecuniary damages.

The injured party subsequently launched an appeal, presenting two distinct grounds for challenging the trial court's decision. Crucially, counsel for both parties had agreed that if the second ground of appeal proved successful, the issue of lost future earning capacity should be remitted to the lower court for a reassessment conducted solely by a judge.

On May 1, the British Columbia Court of Appeal, in the case of Salerno v. Sahota, 2026 BCCA 182, issued its decision. Supplementary reasons on costs were issued on August 21, 2026, under citation 2026 BCCA 354. The appellate court partially granted the appeal, specifically on the basis of the second ground raised by the appellant, which focused on the assessment of lost future earning capacity. As a direct consequence of this ruling, the original $50,000 award for lost future earning capacity was set aside. The matter was then sent back to the lower court for a judge-alone reconsideration of this particular head of damages.

Following its substantive decision, the BC Court of Appeal issued supplementary reasons regarding costs. The court determined that the appellant was entitled to an award of appeal costs because she had achieved substantial success in her appeal. The appellate panel clarified its reasoning, noting that the appellant's success stemmed from two critical outcomes: the setting aside of the $50,000 award for loss of future earning capacity and the successful request for a limited re-trial, to be conducted by a judge alone.

This outcome means the appellant now has the opportunity to pursue a significantly higher award for lost future earning capacity during the upcoming reassessment. The decision underscores that even a partial victory on appeal, particularly one that opens the door to a potentially much larger damage award, can constitute 'substantial success' warranting costs.

The ruling in Salerno v. Sahota provides important guidance for personal injury litigation in British Columbia, particularly concerning appeals related to damage assessments. It clarifies that achieving substantial success on appeal, even if only a specific component of the original award is overturned, can justify an award of costs. This precedent is particularly relevant for lost future earning capacity appeal cases, where the initial jury assessment might be challenged.

Lawyers advising clients on the viability of appealing personal injury damages reassessment BC should take note of this decision. The British Columbia Court of Appeal costs award in this context highlights that focusing an appeal on specific, potentially undervalued damage heads, such as lost future earning capacity, can be a strategic and financially viable approach. A successful appeal costs award can significantly impact the overall financial outcome for an appellant, making such targeted appeals more attractive. This case reinforces the principle that appellate courts will intervene when trial judges' instructions lead to an inadequate assessment of complex damage claims, paving the way for a more thorough and potentially higher reassessment.

This ruling clarifies that substantial success on appeal, even if partial, can warrant an award of costs and lead to the remittal of specific damage heads for reassessment. Lawyers should consider this precedent when advising clients on the viability of appealing specific components of personal injury damage awards, particularly concerning lost future earning capacity, as it can impact litigation strategy and potential cost recovery.

Source: Original reporting via Canadian Legal Newswire