Why a Mental Health Assessment Alone Isn’t Enough: The Case for Vocational Experts in Sexual Abuse Claims

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When a survivor of sexual abuse pursues a civil claim, the psychological evidence is often the centrepiece. Psychiatric and psychological assessments document the trauma, name the diagnoses, and give the court a picture of how deeply the abuse has affected someone’s life. That evidence matters enormously. But it is rarely enough on its own.

A growing body of case law from Canadian courts is making something increasingly clear: when survivors seek damages for lost earning capacity, the absence of a vocational expert can be the difference between a meaningful award and nothing at all.

This is a pattern worth paying attention to - both for legal counsel and for the mental health professionals whose assessments feed directly into these proceedings.

Vocational Experts Shape How Courts Assess Damages

One notable trend in recent civil litigation involving sexual abuse is that the strategic use of vocational expert evidence - by either party - plays a significant role in shaping the court’s analysis of damages.

In John Doe (GEB #113) v Canada (Attorney General), the plaintiff’s legal team did not call a vocational expert. The court had no expert evidence from the plaintiff’s side to link the psychiatric diagnoses - which were directly tied to the abuse - to any specific vocational limitations. The defence team, meanwhile, consulted a vocational expert who pointed to factors outside the abuse to explain the plaintiff’s work history. In the absence of a counter-argument, the court was limited to rendering a decision based on the expert opinion that was available.

The court was explicit: psychological and psychiatric evidence is necessary, but it is not interchangeable with vocational evidence. Even if the plaintiff’s claims had succeeded on liability, the court likely would not have awarded anything for past loss of earning capacity - simply because there was no vocational framework to hang the damages on.

In Anderson v. Molon, the plaintiff tendered evidence from a vocational expert - but one retained by the defence. Because the questions posed to that expert were framed by defence counsel, the evidence was inherently limited. The expert wasn’t asked to outline what the plaintiff’s career might have looked like absent the abuse. She was asked only to weigh the likelihood of certain factors affecting career trajectory. The court acknowledged this gap explicitly. An award was made, but the judge noted that a precise calculation wasn’t possible because no one had established what a “but-for” career path would have looked like.

What these cases illustrate is that the questions posed to a vocational expert - and by whom - directly shape what courts can do with the evidence. A vocational expert asked the right questions from the outset gives the court a framework for making specific, defensible awards.

Vocational Evidence Bridges the Gap Between Psychiatry and Economics

Courts dealing with loss of earning capacity need to connect three things: the medical or psychiatric evidence (what happened to this person), the vocational evidence (how that affected their work life), and the economic evidence (what that costs in dollars). If the middle piece is missing, the chain breaks.

Barker v Barker put this plainly at paragraph 118, noting that an accounting or damages expert must be supported not only by medical evidence but by vocational expert evidence where a medical or psychiatric condition translates into a specific contingency in a damages calculation.

This is especially relevant in SA cases, where courts often face a complicated picture: overlapping diagnoses, prior and subsequent trauma, and multiple contributing factors to a person’s employment history. A vocational expert can untangle those threads - speaking specifically to how the subject abuse affected the plaintiff’s capacity, separate from other factors, in a way that a psychiatrist or psychologist simply is not positioned to do. Critically, their role is not to replace medical or economic experts, but to translate clinical findings into vocational and economic terms that a court can act on.

In Anderson v. Molon, the expert economist who provided lifetime earnings projections based his calculations almost entirely on Dr. Quee Newell’s vocational analysis. The court’s award for loss of earning capacity ultimately rested more on the vocational expert’s opinion than on the economist’s figures. The vocational assessment was, in practice, the foundation.

The “But-For” Question: What Would This Person’s Life Have Looked Like?

At the heart of any loss of earning capacity claim is a hypothetical: but for the abuse, what would this person’s working life have looked like? It’s a difficult question. It requires someone qualified to assess not just the damage done, but the potential that was derailed.

This analysis is not speculative when done properly. Vocational evaluators use structured, peer-reviewed methodologies to assess earning capacity and vocational trajectory. One such model, PEEDS-RAPEL, provides a framework for evaluating developmental, educational, and labour market factors over time - allowing the expert to move beyond general impressions and provide a grounded analysis of what a plaintiff’s vocational path would likely have been in the absence of the abuse. This analysis is typically based on multiple sources of data: interview findings, standardised vocational testing, and labour market research, allowing the expert to triangulate information and arrive at a more reliable opinion.

In K.A.K. v. British Columbia, six plaintiffs pursued damages against the province for the Ministry’s failure to remove them from an abusive home. Three of the six advanced claims for future loss of earning capacity. Only one submitted evidence from a vocational evaluator - and they received the largest award under that heading.

The vocational expert in that case, Dr. Pullyblank, did something particularly important: she established that the plaintiff’s pre-existing neurocognitive disability made him more vulnerable to the vocational impacts of the abuse. Critically, she also addressed the argument that this pre-existing disability should limit liability for the vocational impact caused by the neglect and abuse. The court accepted her analysis. The expert framing made the award possible.

Contrast that with Blackwater v Plint, a case involving survivors of abuse at a residential school. At trial, none of the plaintiffs received an award for loss of earning capacity, despite the court accepting that the defendants were liable for sexual and physical abuse. The only vocational expert involved was retained for just two of the six plaintiffs, and the court rejected his evidence in both instances - once because he wasn’t found qualified to opine on vocational limitations for blind individuals, and once because the court had already rejected the psychiatric evidence his opinion was based on.

On appeal, only one plaintiff received any additional amount - $20,000 for impaired earning capacity. With no vocational framework before it, the court was either unable or unwilling to assess how the abuse had affected the plaintiffs’ working lives. The case also reflects a more outdated understanding of trauma, where courts effectively assumed that other life experiences diminished the significance of the abuse itself.

The absence of strong vocational evidence didn’t just reduce the awards. In most cases, it eliminated them.

Not All Vocational Evidence Carries Equal Weight

Blackwater v Plint also illustrates a point that deserves its own attention: the presence of a vocational expert is not, by itself, sufficient. Courts are not simply looking for a vocational opinion - they are looking for a qualified and methodologically sound one.

As in other areas of expert evidence, the weight given to a vocational opinion depends on the expert’s qualifications, the methods used, and the clarity of the link between the data and the conclusions drawn. In Canada, credentials such as the Canadian Certified Vocational Evaluator (CCVE) designation reflect established standards of practice, peer-reviewed competency, and adherence to professional ethics. The weight given to a vocational opinion will depend not only on its conclusions, but on how those conclusions are reached.

The questions posed to the expert also matter. To be most useful to a court, referral questions should be carefully framed to address both functional limitations and the but-for vocational trajectory - giving the expert a mandate to address what the plaintiff’s career might have looked like absent the abuse, not simply whether certain outcomes were possible.

When the Right Evidence Is There, Courts Use It

T. (L.) v. T. (R.W.) is a useful illustration of how far strong vocational evidence can carry a case. One party argued the plaintiff had no entitlement to damages for lost earning capacity, pointing to the fact that she had worked intermittently since the abuse and was currently not working due to pregnancy. In support, they offered general labour market statistics about single mothers. No vocational or economic expert evidence was submitted.

The plaintiff, by contrast, had retained Dr. Rogers, who conducted psycho-vocational testing as part of the assessment. Dr. Rogers’ evidence established that the plaintiff had a higher intellectual capacity for education and training than what she had pursued, and that but for the abuse, she would have had a better than even chance of achieving meaningful and remunerative work - and would have been better able to stay in school, complete specialised training, and function effectively in a workplace.

The court accepted all of it. The vocational evidence gave the court a concrete basis for the award that general statistics simply couldn’t displace.

Numbers Matter: A Look at Barker v Barker

Barker v Barker involved 28 plaintiffs subjected to experimental programs at Oak Ridge, a maximum-security mental health facility. Of the 28 plaintiffs, 11 advanced claims for loss of income or earning capacity. Of those 11, only 5 received awards.

In the instances where awards were made, the vocational expert evidence available to the court supported those awards. When no such opinion supported an award, and no counter-evidence was available, the court agreed. With nothing to weigh against the available opinion, there was no compelling basis to depart from it.

It cannot be said with certainty that retaining vocational experts for all 11 plaintiffs would have resulted in more or larger awards. But it can be said that without any competing expert evidence, the court had no opportunity to consider an alternative analysis of the damages. This pattern is also reflected in broader empirical research: as noted in Campbell (2023), cases involving vocational expert evidence have been associated with more consistent and appropriately quantified damage awards, with vocational analysis providing courts a structured framework that reduces reliance on assumption and increases the precision of the final award.

What This Means in Practice

The cases reviewed here span different fact patterns, different provinces, and different time periods. But they point in the same direction.

Psychiatric and psychological evidence is essential, but it does not replace vocational evidence in loss of earning capacity claims.
The questions posed to a vocational expert - and by whom - directly shape what courts can do with the evidence.
Vocational experts who are asked the right questions - particularly around “but-for” career trajectories - give courts a framework for making specific, defensible awards.
Not all vocational evidence carries equal weight. Qualifications, methodology, and the clarity of reasoning all factor into how courts receive it.
Vocational experts work in coordination with treating professionals, psychologists, and economists. Their role is to translate clinical findings into vocational and economic terms the court can act on.

For legal counsel working on SA civil claims, the takeaway is to engage vocational expertise early - and to ensure the expert is asked questions that give the court what it needs to assess the full scope of harm. For mental health professionals involved in these assessments, it is a reminder that their findings don’t exist in isolation. They inform, and often anchor, the vocational analysis that courts rely on to assign value to the harm done.

Survivors deserve to have the full scope of harm taken seriously. Expert evidence, assembled carefully and with appropriate expertise, is how that happens.

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