Happy new year and new decade to all. Sorry for the lack of updates in over a month, but I was in exam mode and then vacation mode. I’m back to more or less regular mode now, so here’s a post. Enjoy!

It is a well known fact that women make less money than men for doing the same job. The estimates vary, but the general consensus is that women make around 71-75 cents for every dollar pulled in by a man. This raises interesting social questions and many equity concerns, but here’s is one that is not often thought about: if a woman gets injured and cannot work, should her compensation for lost income under tort law be assessed at the man’s wage? the woman’s wage? the average wage? or by some other criteria? In other words, do we build gender discrimination into damage awards for injuries?

The courts have wrestled with this issue for a while, and a relatively recent ruling of the Ontario Court of Appeal seems to give some guidance on the issue. In short, the thrust behind Walker v. Ritchie (a 2003 case) says that it’s appropriate to use gender-neutral statistics if evidence can be provided that that field is moving toward wage parity. Of course there is some issue with that because what the court is saying, implicitly, is that if there is no visible trend toward parity in a given industry, courts should continue to perpetuate the economic inequality. Of course not to do so would be arguably unfair to the defendant as the courts would make him/her/it (in the case of a corporation) responsible for more damage than was actually caused.

There’s an interesting article on this that I would suggest reading for anyone interested in the issue: “Damages for Lost Earning Capacity: Women and Children Last!” – 1992 71 Canadian Bar Review 445.