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Tag: sufficient reasons for judgement

BC Injury Trials and Adequate Reasons for Judgement

Written by admin on . Posted in Civil Procedure, Uncategorized. 52 Comments on BC Injury Trials and Adequate Reasons for Judgement


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:

[18]         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:

[61]      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, [2002] 1 S.C.R. 869, at paras. 25-26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 31; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-18, 52-53.

[19]         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…

[26]         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.

[27]         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.

[28]         I would accordingly allow the appeal and direct a new trial.

BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized.

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, [2002] 2 S.C.R. 235).

[39] 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, [2008] 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.

[40] 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.  …

[41] 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.

[42] 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.

[45] 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…

[48] 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.

[49] 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.

[50] 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.