2008 BCCA 217 Gibson v. Insurance Corporation of British Columbia

Before:	The Honourable Mr. Justice Lowry
	The Honourable Mr. Justice Tysoe
	The Honourable Mr. Justice Bauman

A.K. Khanna			Counsel for the Appellant (Respondent on CA035727)
M. Wright and J.W. Joudrey			Counsel for the Respondent (Appellant on CA035727)
Place and Date of Hearing:			Vancouver, British Columbia
24 April 2008
Place and Date of Judgment:			Vancouver, British Columbia
24 April 2008
Date of Reasons:		20 May 2008
Written Reasons by the Court:

Reasons for Judgment by the Court:

[1] The plaintiff appeals an order under which he was awarded damages against I.C.B.C. for personal injuries suffered in a motor vehicle accident giving rise to an unidentified driver claim. I.C.B.C. applies for leave to appeal the trial judge's dismissal of an application it made to adduce fresh evidence of Mr. Gibson's knowledge of the driver's identity made after judgment was rendered, but before the order was entered. At the conclusion of what was a brief hearing, we allowed the appeal on the basis the reasons for judgment were not adequate to permit appellate review, ordered a new trial, and dismissed the motion for leave to appeal as moot. We reserved judgment on the question of costs and said reasons would follow. These are those reasons.

II.

[2] While riding his motorcycle late in the night of 24 May 2002, the plaintiff was struck from behind. He suffered various injuries.

[3] The attending police and I.C.B.C. accepted the incident as a case of hit and run and the plaintiff's action against I.C.B.C. proceeded under s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231.

[4] That section provides in part:

(1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a vehicle on a highway in British Columbia and

(a) the names of both the owner and the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not ascertainable and the owner is not liable to an action for damages for the injury, death or property damage, any person who has a cause of action

(d) as mentioned in paragraph (b), against the driver,

in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the injury, death or property damage, but in an action in which the names of both the owner and the driver of the vehicle are not known or ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount.

[5] For the purposes of the litigation, I.C.B.C. eventually made two admissions:

(1) that the names of both the owner and the driver of the motor vehicle involved in the plaintiff's accident on 24 May 2002 were not ascertainable; and

(2) that the hit and run driver was at fault for the accident.

[6] The trial proceeded in the Supreme Court of British Columbia before a judge alone on the issues of the extent of the plaintiff's injuries arising out of the accident, and the quantum of his damages.

[7] These issues were vigorously contested over the course of a six day trial.

[8] At the trial, the plaintiff called nine lay witnesses and four expert witnesses. I.C.B.C. in turn called six lay witnesses and two expert witnesses.

[9] The trial judge delivered an oral judgment on the last day of trial on 8 March 2007. He said:

[1] THE COURT: From the evidence adduced at this trial, I find that while riding his motorbike on the 24^th of May, 2002 the plaintiff’s vehicle was struck violently from behind by a hit and run driver.

[2] As a result of the collision, the plaintiff suffered certain injuries.

[3] The plaintiff has proved on a balance of probabilities that as a result of this accident he suffered an injury to the nerve endings in his left elbow which results in numbness to the fingers in his left hand. The injury has resulted in an ulnar nerve entrapment. This injury may eventually require surgery.

[4] The plaintiff has proved on a balance of probabilities that as a result of the accident he suffered sciatic nerve damage in his tailbone area. This injury is a permanent injury. It has the effect of causing the plaintiff to have numbness in his left foot and it makes it difficult for him to sit in one place for a prolonged period of time. If, after sitting for a while, he gets up and walks around, then the discomfort ceases.

[5] The plaintiff has not proved on a balance of probabilities that he suffered any further injuries as a result of this accident.

[6] More specifically, I find that he has not proved that the headaches, inability to sleep, and injury to his left shoulder were caused as a result of this accident.

[7] I find that as a direct result of the accident the plaintiff lost wages, that is, gross wages, in the sum of $32,000.

[8] I assess non-pecuniary damages payable by the defendant to the plaintiff at $80,000, his net wage loss at $24,000; his special damages at $1,259.49.

[9] The plaintiff, of course, is entitled to his costs.

[10] Thank you very much. That is all.

[10] The plaintiff states the judge made the following errors:

A. The Learned Trial Judge misconstrued and failed to critically examine the evidence regarding the nature and extent of the Appellant's disabilities caused by injuries suffered in the motor vehicle accident.

B. The Learned Trial Judge erred in law in respect of the award for past loss of income and income earning capacity.

C. The Learned Trial Judge erred in law in respect of the failure to make an award for future loss of earning capacity.

D. The Learned Trial Judge err[ed] in mixed fact and law in failing to find the Appellant's left shoulder injury was caused by the subject accident. This error resulted in a further diminution in the award for non-pecuniary damage, special damages; past and future wage loss, and loss of capacity, as well as future cost of care.

[11] The plaintiff then invited this Court to assess damages based on the trial record. The plaintiff submitted that he was entitled to these damages:

Non-pecuniary damages: $100,000.00

Past wage loss 225,000.00

Loss of earning capacity 250,000.00

Future cost of care 2,250.00

Special damages 2,234.49

[12] In the alternative, the plaintiff sought a new trial.

[13] Before the order formalizing the judgment was entered in the Supreme Court, I.C.B.C., on 10 May 2007, received an anonymous tip to the effect that the accident had been falsely reported as a hit and run.

[14] In his affidavit filed on I.C.B.C.'s motion to adduce fresh evidence in this Court, Doug Smith, a Special Provincial Constable with the corporation, deposes as follows:

9. On May 29, 2007, I interviewed Ms. Heather Sawicki. She confirmed that the Accident was not a hit and run accident and that the Appellant had waved for her to leave the accident scene. She told me to the effect that she and others had been at the Sandpiper Pub, that after closing of the pub, she drove her car following a motorcycle to a residence, that it was her car that struck the Appellant’s motorcycle and caused the Accident, and that the Appellant waved for her to leave the scene of the Accident.

10. Prior to May 2007, there was no mention of Ms. Sawicki at any point or time in the pretrial investigations of the Accident which suggested her involvement in the Accident.

11. Attached hereto as Exhibit “A” is a copy of the transcription of a tape-recorded interview I conducted with Heather Sawicki which occurred on May 29, 2007, which I reviewed to ensure that it is an accurate transcription.

12. I have subsequently attempted to obtain an affidavit from Ms. Sawicki, but as of the date of the swearing of this affidavit, I have not been able to obtain such an affidavit as she has told me she does not want to become involved any further.

13. On July 11, 2007, I interviewed Ms. Denise lzatt. Ms. lzatt told me that she had been at the Sandpiper Pub with the Appellant, Heather Bradshaw [now Heather Sawicki], Zoltan Sandli, Leanne Coleman, and Kerry Singh, that after the Pub closed, Ms. Sawicki’s vehicle was following the motorcycles driven by “Zoly Sandli” and the Appellant to a residence, that it was Ms. Sawicki’s vehicle that struck the Appellant’s motorcycle and caused the Accident, and that she was a front seat passenger in the vehicle being driven by Ms. Sawicki at the time of the Accident. She confirmed that the Accident was not a hit and run accident, but that the Appellant had told them to leave the Accident scene.

14. Prior to May, 2007, there was no mention of Ms. Denise lzatt at any point in time in the pre-trial investigations into the Accident which suggested her involvement in the matter.

15. Attached hereto as Exhibit “B” is a copy of the transcription of a tape-recorded interview I conducted with Ms. lzatt which occurred on July 11, 2007, which I reviewed to ensure that it is an accurate transcription.

[15] On 13 December 2007, I.C.B.C. brought a motion before the trial judge for an order permitting it to withdraw the admissions noted above and reopening the trial "to present new evidence on the issue of whether or not the names of both the owner and driver of the motor vehicle involved in the plaintiff's May 24, 2002 accident was ascertainable".

[16] In reasons pronounced 20 December 2007, the trial judge dismissed that application (2007 BCSC 1843).

[17] It appears that only the transcript of Ms. Izatt's statement was exhibited before the trial judge. It is unclear whether the trial judge was advised of the unsworn statement of Ms. Bradshaw.

[18] In any event, the trial judge summarized the reasons for his disposition of the application:

[17] The problem is that the evidence that the defendant seeks to introduce in support of this application is very unreliable. The tipster admits that she was drunk on the day of the accident and that she did not know the plaintiff. There is no credible evidence from the person who was alleged to have been the driver of the vehicle that was involved in the accident involving the plaintiff. The defendant is of the view that she would confess to knowing the plaintiff and being involved in the accident if I were to re-open the trial and she was subpoenaed. I am not sure of that. In any event, the defendant has failed to satisfy me on a balance of probabilities that a miscarriage of justice would probably occur without a rehearing and that the evidence or argument that it now hopes to present would probably have changed the result of the trial.

[19] I.C.B.C. applied for leave to appeal the dismissal of its motion seeking to have the matter remitted to the trial court for a determination of whether judgment can be entered against it.

III.

[20] The central issue on this appeal is the adequacy of the trial judge's reasons.

[21] It is fair to say that they are not reasons, they are rather, bald conclusions on issues of fact before the trial court.

[22] True, these conclusions do touch upon each of the principal issues of fact before the trial judge, but they offer nothing of the reasoning process in which the trial judge engaged in arriving at them.

[23] In the context of the metaphor often used in the adequacy of reasons analysis, the trial judge takes us to the final destination, but we are left to wonder by which pathway he led us there.

[24] Whether the plaintiff suffered a left shoulder injury in the accident, the quantum of his past wage loss and whether he has suffered a loss of future earning capacity, were contentious issues at trial.

[25] We have the benefit of the trial judge's conclusory findings on each of these issues, but we do not enjoy an indication of the reasoning process, the evidentiary analysis, or a discussion of the acceptance and rejection of the evidence of the numerous experts, in which the trial judge had to engage in arriving at these conclusions.

[26] The law on the adequacy of reasons has been developed in numerous cases.

[27] R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, was a criminal case involving a conviction for possession of stolen property. The trial judge, in convicting the accused, said simply:

Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.

[28] Mr. Justice Binnie, writing for the Court, stated at para. 24:

In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

[29] At para. 55, Binnie J. summarizes the jurisprudence on the duty of a trial judge to give reasons. This was said in the context of a criminal case, but we consider at least these points in the list applicable in the context of reasons in a civil case:

1. The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

2. […] Reasons for judgment may be important to clarify the basis for the [result] but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.

3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.

[….]

6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

7. Regard will be had to the time constraints and general press of business in the […] courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge's reasons provide the equivalent of a jury instruction.

8. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.

9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

[30] In Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41, 285 D.L.R. (4th) 620, Chief Justice McLachlin, for the majority, extracted these principles from Sheppard in a civil case considering the adequacy of the trial judge's reasons (at paras. 100-101):

100 The question is whether the reasons are sufficient to allow for meaningful appellate review and whether the parties’ “functional need to know” why the trial judge’s decision has been made has been met. The test is a functional one: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 55.

101 In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal. On the other hand, reasons are particularly important when “a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused and contradictory evidence on a key issue”, as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy of reasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself”: Sheppard, at para. 26.

[31] In Bedwell v. McGill, 2008 BCCA 6, Mr. Justice Tysoe, dissenting in part but not on this point, held at para. 21:

The question of whether a trial judge's reasons are adequate is a threshold issue. If the reasons are not adequate to permit proper appellate review, the appeal must be allowed and a new trial ordered. Inadequate reasons do not enable the appellate court to make its own findings of fact and conclusions of law based on those findings. In addition, the issue of adequacy of reasons is different than the issue of whether the failure of the trial judge to address critical evidence constitutes a palpable and overriding error.

[32] Finally and most recently in R. v. Dinardo, 2008 SCC 24, the Court had occasion to again consider the sufficiency of reasons issue and to revisit Sheppard.

[33] Madam Justice Charron, for the Court, writes at para. 25:

Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

[34] The gravamen in the reasons debate is their adequacy to permit proper appellate review.

[35] The scope of that review is discussed at length in Housen v. Nicholaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. It varies between the standards of correctness and palpable and overriding error depending on whether the question is one of law, mixed fact and law or, fact.

[36] None of these standards can be properly applied on appellate review, in a case such as this, when the court is presented only with the trial judge's conclusions, shorn of any indication of the reasoning process by which he or she reached those conclusions.

[37] For these reasons, there must be a new trial in this matter. That disposition renders moot I.C.B.C.'s appeal from the trial judge's order refusing to reopen the trial.

[38] Because the parties have been denied effective appellate review, each should bear its own costs on these appeals, provided that disbursements on the appeals are to be pooled and shared equally.

[39] The costs of the trial shall be in the discretion of the court on the new trial.

“The Honourable Mr. Justice Lowry”

“The Honourable Mr. Justice Tysoe”

“The Honourable Mr. Justice Bauman”

Citation:	*Gibson v. Insurance Corporation of British Columbia,*
	2008 BCCA 217