Update May 27, 2014 – After reassessment the trial judge assessed damages at the original amount
Reasons for judgement were released last week by the BC Court of Appeal sending a case for re-trial after a judge failed to adequately explain how substantial damages for diminished earning capacity were assessed.
In the recent case (Morgan v. Galbraith) the Plaintiff was injured in a 2006 collision. He worked as a senior account manager at the Royal Bank of Canada at the time. Following the crash he returned to this job with accommodation until his contract expired. From there he never returned to work at the bank instead he pursued a career in professional lacrosse. This chapter of his life ended with a concussion suffered in 2011. By the time of trial he was working as a basketball and lacrosse coach.
At trial it was found that the Plaintiff suffered from ongoing injuries from the collision. His diminished earning capacity was assessed at $700,000. The BC Court of Appeal found that the reasons supporting such an assessment were lacking from the trial judgement and the matter was sent back to trial for reassessment of this loss. In doing so the BC Court of Appeal provided the following reasons:
 The economic evidence relied on by Mr. Morgan quantified lifetime earnings of a sport coach in Oregon at $883,004. The judge did not explain the basis of his $700,000 assessment. This amount approximates 80% of lifetime earnings of a coach, notwithstanding that Mr. Morgan is now employed as a coach. I do not mean to imply that the assessment must be a mathematical calculation. Rather, my point is that there must be findings of fact on which to base the assessment. Here, the reasons for judgment on this point are not sufficient to permit appellate review. The judge gave no hint as to the factual basis on which he reached the conclusion that on these facts $700,000 was an appropriate measure of Mr. Morgan’s future damages. The judge did compare this case to another similar case, but, in my view, that would not be an appropriate way to assess what is essentially a pecuniary damage award. I do not consider that it is appropriate for this Court to infer from the judge’s reasons the necessary findings of fact in order to substitute a different award or to affirm the correctness of the award.
 The judge could well have chosen the earnings approach given that Mr. Morgan was likely to pursue a career in sport regardless of the accident and that doing so after the accident was possible but with limitations. The judge made no findings concerning the extent of those limitations. As I have concluded that the appropriate disposition of this appeal is to remit the question of the assessment of damages for future loss of earning capacity to the judge, I will leave to the trial judge the question of the appropriate approach to adopt. To reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the judge has already found that there is a loss of future earning capacity under the Perren test. He need not reconsider that finding. But it will be necessary for him to revisit the assessment on a proper factual underpinning.
 If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income. Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
 In conclusion, on this ground of appeal, I would remit the question of the quantification of future loss of earning capacity to the trial judge to reassess damages in accordance with these reasons.
Tag: adequate reasons for judgement
Update May 27, 2014 – After reassessment the trial judge assessed damages at the original amount
In reinstating a successful damages award, the Supreme Court of Canada had the opportunity to discuss if and when it is ok for a trial judge to copy a lawyer’s submissions in their reasons for judgement.
In today’s case (Cojocaru v. British Columbia Women’s Hospital and Health Centre) the infant Plaintiff suffered brain injury during birth at BC’s Women’s Hospital and Health Care Centre. He successfully sued for malpractice and was awarded damages for his past and future care needs and other losses. The trial judgement “reproduced large portions of the submissions of the plaintiffs.“. The Court of Appeal overturned the judgement finding this judicial “copying” displaced ‘the presumption of judicial integrity and impartiality’.,
The Supreme Court of Canada disagreed and reinstated the damages awarded at trial (although differed in who the liable parties were allowing the cross appeals of some of the defendants). In doing so Canada’s highest Court provided the following reasons discussing “the long tradition of judicial copying“.
 This was a complex case involving many issues. The trial judgment, rendered some time after a lengthy trial, consisted of 368 paragraphs. Only 47 were predominantly in the judge’s own words; the balance of 321 paragraphs was copied from the plaintiffs’ submissions. This raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions.
 The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs…
 The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment-writing unfair. A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially. No one could reasonably contend that the process has failed in such a case.
 To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision…
 In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.
 This does not negate the fact that, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them. As the cases illustrate, the importance of this may vary with the nature of the case. In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial. By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words. The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.
As previously discussed, Judges presiding over Civil Trials in BC have a duty to provide adequate reasons for judgement explaining why they arrived at their decision. Failure to do so could result in a new trial. Reasons for judgement were released today by the BC Court of Appeal further discussing this area of law.
In today’s case (Bjornson v. Shaw) the Plaintiff was injured in a BC collision. She sued for damages and was awarded over just over $565,000 in total damages by Mr. Justice Scarth.
The Defendant appealed this award arguing that the Trial Judge failed to provide adequate reasons for judgment. The BC Court of Appeal agreed an ordered a new trial. In doing so the Court provided the following reasons addressing the need for sufficient reasons for judgement:
 In Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 317 D.L.R. (4th) 419 para. 62, Doherty J.A., writing for the Court, affirmed that a determination of whether reasons properly fulfill their objectives must be examined in the context of the proceedings from which they emanate, including the issues raised, the evidence adduced, and the submissions of counsel. As well, he provided this guidance in assessing the adequacy of reasons:
 Reasons for a decision serve several salutary purposes. Where there is a right of appeal from that decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis: R. v. Sheppard,  1 S.C.R. 869, at paras. 25-26; R. v. Braich,  1 S.C.R. 903, at para. 31; R. v. R.E.M.,  3 S.C.R. 3, at paras. 15-18, 52-53.
 Applying those principles here, the only issue at trial was quantification of damages. The gap between the parties’ positions was substantial. While the trial judge found the respondent a credible witness, she was still obliged to prove her damages under each head, and there was conflicting evidence from other sources on important issues that had to be resolved. Various inferences were open to the trial judge, depending on the facts he found and the weight he gave to them…
 The respondent is correct in saying a trial judge need not address each detail of the evidence, or set out every aspect of his analysis. I also accept that judges commonly quantify damages in an amount that falls between the positions taken by the parties. I am nevertheless persuaded the reasons in this case fail to fulfill the objectives established in F.H. v. McDougall. They do not sufficiently explain or justify the awards made. They do not let the appellant know why she did not succeed in limiting the damages. They preclude meaningful appellate review in that the absence of critical factual findings and analysis limits the parties’ ability to identify reviewable errors.
 Deficient reasons constitute an error of law: Law Society of Upper Canada v. Neinstein at para. 94. The appropriate remedy must be a new trial. It is thus unnecessary to consider the second ground of appeal.
 I would accordingly allow the appeal and direct a new trial.
A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision. The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash. At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision. The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness. The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘. The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility. In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:
38] This appeal concerns assessments of witness credibility and findings of fact. It is well-settled that an appellant court must exercise great restraint in reviewing such matters. They are properly the province of the trial judge. In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23,  2 S.C.R. 235).
 The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51,  3 S.C.R. 3:
…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial. The factors supporting or detracting from credibility may be clear from the record. In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.
 This case involved a soft tissue injury. Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues. In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case. …
 In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible. To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.
 It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”. There are several indications that she did not do so.
 The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents. Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination. The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007. Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility. She dismissed them as being of little moment in that assessment. She did not even mention the statements in the applications to the colleges…
 In my view, the reasons are problematic. The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity. The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial. Rather, it was whether her pain had been ongoing since the time of the accident.
 Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.
 I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”. She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.