Court of Appeal Split on Whether Credibility Finding on Misapprehended Evidence Warrants New Trial
Reasons for judgement were released today with split reasons but the BC Court of Appeal addressing whether a new trial is warranted where a Court makes an adverse credibility finding based in part on misapprehended evidence.
In today’s case (Zajaczkowski v. Grauer) the Plaintiff was injured in a collision and sued for damages. At trial the Plaintiff’s diminished earning capacity claims were dismissed with the Court finding there were issues with the Plaintiff’s credibility. The trial judge misapprehended some of the Plaintiff’s evidence with respect to his education. The Plaintiff’s appeal was dismissed but dissenting reasons were provided finding a a new trial was warranted in these circumstances.
The majority provided the following reasons:
 While the judge clearly accepted the thrust of this evidence, which was evidence of fatigue and pain, he also found that it afforded “an insufficient factual underpinning for any compensation for loss of earning capacity”. In my view, the inability of the trial judge to find a factual underpinning for the claim lay not in an error of law; the trial judge expressly noted, at para. 51, that “a plaintiff need only show a real and substantial possibility of a future event leading to an income loss, in accordance with Perren v. Lalari, 2010 BCCA 140”. The claim for loss of earning capacity failed because the judge found the appellant had not met the evidentiary burden described in Perren. He did not accept the appellant’s own evidence of his limitations. The witnesses provided some anecdotal evidence of occasions when the appellant was limited in his work but that did not establish the appellant was, overall, unable to work as much as he had worked before his injury. As the respondents’ counsel submitted, the impact of the appellant’s lingering pain upon his capacity to work may have been so minimal as to be difficult to assess. I cannot say the trial judge erred in coming to the conclusion that the evidence did not support a claim under this head of damages. I would also dismiss the appeal founded upon this argument.
In dissent Madam Justice Saunders reasoned as follows:
 The question on both past and future earnings loss is not whether the appellant’s income was diminished or will be diminished from that which he had earned before the accident, but whether it was diminished or will be diminished from that which he could have earned but for the accident. It appears that the appellant’s business was thriving, considerable work was available to him and it was, in the vernacular, a time in which he could “make hay”. If the appellant’s earnings were lessened by reason of the injury from the accident, the appellant is entitled to be compensated for the diminishment.
 The evidence of the three witnesses discussed above supports the appellant’s evidence that from time to time his injury limited his hours and intensity of work. If accepted, the evidence of these witnesses alone, and combined with the appellant’s evidence, supported a claim for past wage loss of some amount, and possibly a claim for future wage loss on the capital asset approach of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)per Finch J., although certainly not in the scale claimed by the appellant at trial.
 The judge did not review the evidence of these witnesses in any detail and said only that “I accept the thrust of the evidence from those witnesses, that Mr. Zajaczkowski had less energy and more pain after the accident”. The judge concluded, “Their testimony … did not lead to the further conclusion, that in the result, the Plaintiff worked less overall and earned less overall.”
 It is here, I consider, that the judge’s assessment of the appellant’s credibility creates the impact that requires this court to interfere with the order appealed. In my view, one cannot say that absent the error in that credibility assessment, there would have been such a lack of credit given to the substance of the evidence of these witnesses. In other words, the misapprehension of evidence in the credibility assessment leaks into the result of the trial, with the effect that the order made by the judge in respect to earnings loss cannot stand, in my view.
 In reaching this conclusion I have not addressed the last strong conclusion of the judge concerning evidence of the Balano invoice. I agree that such evidence was understood correctly by the judge, and that alone it could have supported rejection of the appellant’s evidence. However, the judge made the appellant’s evidence of his education one leg of what was a relatively brief discussion of credibility, and that leg is broken.
 I would echo the words of Mr. Justice Hall in Loveridge v. British Columbia, 2007 BCCA 425: “The appellant was entitled to a correct consideration of the full substance of his case”. In the circumstances I have described, I do not consider the appellant received that consideration. I therefore conclude that the appeal should be allowed and a new trial ordered.