



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Findlay v. George,









2021 BCCA 12




Date: 20210113

Dockets:
CA46004; CA46336

Docket: CA46004

Between:

William Aubrey
Findlay

Appellant

(Plaintiff)

And

St. John George
also known as John Taylor, deceased

Respondent

(Defendant)

-
and -

Docket: CA46336

Between:

William Aubrey
Findlay

Respondent

(Plaintiff)

And

St. John George
also known as John Taylor, deceased

Appellant

(Defendant)




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson

The Honourable Madam Justice DeWitt‑Van Oosten




On appeal from: Orders
of the Supreme Court of British Columbia, dated March 14, 2019 (
Findlay
v. George,
Vancouver Docket M148460), and July 25, 2019 (
Findlay
v. George
, 2019 BCSC 1227, Vancouver Docket M148460).




Counsel for the Appellant
  (via videoconference):



G.J. Kehler





Counsel for the Respondent (via videoconference):



D. De Baie





Place and Date of Hearing:



Vancouver, British
  Columbia

November 13, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2021









Written Reasons by:





The Honourable Madam Justice DeWitt‑Van Oosten





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson








Summary:

The appellant suffered post‑traumatic
stress from his involvement in a motor vehicle collision. He sued the other
driver for damages. A jury dismissed the action, finding the appellant did not
prove liability against the other driver. The appellant challenges the jurys
verdict, seeking a new trial. On appeal, he alleges the judge wrongly excluded evidence
from the jury, namely: (1) a portion of a witness statement provided by
someone (now deceased) who observed the collision; and (2) information
relating to the other drivers medical condition, recorded in documents
completed by the respondent and a physician 13 months prior to the collision.
Held: Appeal dismissed. The judge did not err in excluding an ambiguous and
misleading part of the witness statement. With respect to the medical
information, the judges assessment of probative value and prejudicial effect
is entitled to significant deference and the appellant has not established
overriding error.

On completion of the trial,
the respondent sought double costs based on the appellants rejection of a pre‑trial
settlement offer. The trial judge declined to award double costs. The
respondent appeals that decision, alleging a misapprehension of evidence, the
consideration of irrelevant factors, and a failure to give meaningful effect to
the objective underlying double costs. Held: Appeal dismissed. Awarding double
costs is a discretionary determination, entitled to considerable deference on
review. The respondent has not established overriding error in the judges
analysis.

Reasons for Judgment of the
Honourable Madam Justice DeWitt‑Van Oosten:

Introduction

[1]

These reasons address two appeals: one from a jurys verdict dismissing
a claim in negligence; the second from an order denying double costs.

[2]

In January 2013, the appellant was driving a logging truck on a
snow‑covered highway. A pickup truck, travelling in the opposite
direction, collided with the back of his trailer. Tragically, the driver of the
pickup truck died.

[3]

The appellant attempted to assist the other driver at the scene.
As a result, he suffered post‑traumatic stress that he says has
profoundly affected his life. He sued for damages. The trial proceeded before a
jury in March 2019. The jury dismissed the claim, finding the appellant did not
prove liability against the respondent. On appeal, the appellant asks that the
verdict be set aside. He says the judge wrongly excluded evidence from the jury
that could have resulted in a different outcome.

[4]

After the dismissal, the defence applied for double costs based
on the appellants refusal to accept a pre‑trial settlement offer. The
trial judge awarded single costs only. That ruling is also under appeal, on grounds
that the judge committed errors in principle in reaching his conclusion.

[5]

For the reasons that follow, I would dismiss both appeals.

Background

Negligence Action

[6]

The collision occurred in January 2013. It was daylight. The roadway
was covered in snow. A witness who observed the collision testified there was a
lot of ice on the road. The posted speed limit was 90 kilometres per hour.

[7]

The appellant (William Findlay) was driving a commercial logging
truck, consisting of a tractor and an empty tandem log trailer. The logging truck
had a series of bunks along its length, to keep the logs from rolling. Two of
those bunks were on the tractor. Another two were on the trailer. The outside
edges of the bunks extended beyond the width of the tractor. At the rear of the
log trailer, the drivers side bunk extended 11.8 inches out from the trailers
wheel. The bunks contained reflective tape. However, the logging truck was also
required to have warning flags attached to the bunks. The purpose of such flags
is to notify other drivers that the vehicle is over‑sized and to make
sure it is visible. The flags attached to the rear of the trailer were not
bright red or orange. Nor did they meet the required size. According to a
witness who inspected the logging truck post‑collision, the flags were
tattered and faded, to the point of not  almost being invisible.

[8]

The appellant was travelling northbound on Highway 118, approximately
12 kilometres from Granisle. The respondent (St. John George, also known as
John Taylor) was travelling in the other direction, driving a GMC Sierra pickup
truck. Neither the logging truck nor the respondents vehicle had mechanical
defects.

[9]

In his testimony, the appellant described Highway 118 as a very,
very poorly maintained road. On the day in question, it was kind of slick.
The appellant said that just before the collision, he was in the process of
slowing down, getting ready to turn right. He thought he was travelling at a
speed of about 40 kilometres per hour.

[10]

The appellant saw the respondents vehicle approaching him. There
was nothing unusual about the manner of driving. The respondent passed by the
tractor. Again, there was nothing about his driving that concern[ed] the
appellant. The appellant described the pickup truck as being maybe  [f]our to
six feet away from his vehicle. After the respondent passed the tractor, the
appellant did a shoulder check. He heard a loud noise, looked in his mirror and
did not see anything. He looked a second time and saw the respondents vehicle
in the ditch. The appellant slammed on [his] brakes and stopped.

[11]

At the location of the collision, the highway had a slight,
leftward curve for northbound traffic. The respondent was travelling on the
inside of that curve, heading south. There was nothing obstructing each
vehicles view of the other.

[12]

At the point of impact, the appellants northbound lane of travel
was 3.87 metres wide, measured from the centre line. The respondents lane of
travel was 4.15 metres wide, measured from that same point. Because of the
snow, the lane markings were not visible on the day of the collision. This
included the centre line.

[13]

The appellant testified that when the two vehicles passed, he had
no concerns about how the log trailer was tracking behind his tractor. A
witness travelling in a vehicle approximately 20 to 25 car lengths behind the
pickup truck said everything looked normal as the vehicles began to pass.

[14]

The respondent called an expert in collision reconstruction. He
opined that at the point of impact, the outer bunk at the rear of the
appellants trailer (drivers side) was in the respondents southbound lane of
travel. The left front of the pickup truck collided with that bunk. The pickup
truck under‑rode the outside left rear bunk, so basically the front of
the hood caught that bunk, and then it  it went under, and that bunk tore
through the upper part of the hood, and pillars. The pickup truck ended up in
a ditch across the appellants (northbound) lane of travel.

[15]

Photographs of the pickup showed extensive damage to its front,
top and drivers side. The damage to the logging truck was primarily to the rear
corner of the trailer (drivers side). In his report, the expert opined that
the:


impact likely happened in the southbound lane
.
At the point of impact, the [respondents] pickup appears to be established
approximately centrally in its lane.
The [appellants] tractor trailer was
approaching impact from a position that was slightly over the center line. At
impact, the path of the [appellants] tractor was directed back towards its
lane of travel. However, the outer bunk of the [appellants] trailer was still
approximately 1 meter over the center line
. It is likely that the impact to
the left side of the [respondents] pickup induced a counter‑clockwise
rotation to the vehicle, which is consistent with its measured tire marks.

[Emphasis added.]

[16]

The encroachment in the southbound lane measured one metre over
the centre line. The front of the respondents pickup truck was 1.85 metres
wide. According to the appellants calculations, this would have left 1.3
meters to spare in the southbound lane of travel (or approximately 4.3 feet).

[17]

An agreed statement of facts filed at trial stated that the
respondents vehicle collided with the last bunk on the [appellants] tandem
trailer.

[18]

Following the collision, the appellant was charged with driving
without due care and attention under the
Motor Vehicle Act
,

R.S.B.C.
1996, c. 318. He disputed the charge, had a trial in the Provincial Court and
was found guilty of the offence. At the civil trial, the parties agreed to the
fact of the conviction going before the jury, with the following explanatory
context:

With respect to the subject accident, the plaintiff, Mr. Findlay,
was convicted in the Provincial Court of British Columbia of driving without
due care and attention, a traffic violation, contrary to s. 144(1)(a) of
the
Motor Vehicle Act
. It was proven beyond a reasonable doubt that the
manner of Mr. Findlay's operation of his motor vehicle was in all of the
circumstances "a departure from the accustomed sober behaviour of a
reasonable person".

As part of the conviction, the Provincial Court found that
a part of the trailer of Mr. Findlay's vehicle had crossed the centre into
the southbound lane of travel of the pickup truck driven by the defendant in
this lawsuit.
The Provincial Court did not determine whether a part of the
trailer being across the centre line in fact caused the accident.

[Emphasis added.]

[19]

The trial on the negligence claim lasted 10 days. The jury
dismissed the appellants claim, finding that he did not prove liability against
the respondent. As a result, there was no assessment of damages.

Application for Double Costs

[20]

In September 2017, the respondent delivered a formal settlement
offer to the appellant for $80,000. The appellant did not accept that offer.
Instead, he responded with an offer for $600,000. He later revoked that
position and offered to settle for $500,000, plus taxable costs and
disbursements.

[21]

At trial, and in addition to non‑pecuniary damages, appellants
counsel asked the jury to award: $388,382.66 for gross past wage loss (before
statutory deductions); $308,694.78 for loss of future earning capacity;
$27,566.56 for loss of past housekeeping capacity; $67,000 for loss of future
housekeeping capacity; and $50,939.10 in special damages.

[22]

The jury dismissed the appellants claim in its entirety. In June
2019, the respondent applied for costs under the
Supreme Court Civil Rules
.
He asked for an assessment at Scale B up to the date of the $80,000 offer, and
double costs thereafter.

The trial judge awarded the respondent single
costs.

Positions at Trial

Negligence Action

[23]

For use in the jury charge, each party provided the trial judge
with a summary of their position on liability. The appellant argued that the
logging truck was there to be seen. Had the respondent been driving
attentively, the collision would not have occurred. The appellant said the
respondent had the time and he had the space to avoid the accident. As such,
he was negligent in failing to move to the right when passing the logging
truck. The fact that the appellant was convicted of an offence in traffic
court because a part of his trailer was across the invisible centre line was
not determinative of liability. More than one mistake can go into the making
of an accident.

[24]

The respondent argued for dismissal of the claim on grounds that
the appellant did not prove the respondent caused or contributed to the
collision. The evidence established that the log trailer was in the
respondents lane of travel at the point of impact. There were no witnesses to
the impact and no evidence of negligent or otherwise problematic driving on the
part of the respondent. Instead, the respondent was faced with an emergent
situation created by the [appellants] trailer being in his lane of travel.
The appellant led no evidence to show that a reasonable driver in the respondents
position would, or ought to, have seen the trailer in their lane of travel. Nor
that a reasonably skillful driver would have had the opportunity to avoid a
collision.

Application for Double Costs

[25]

Reasons for judgment on the application for costs are indexed as
Findlay
v. George
, 2019 BCSC 1227 (RFJ).

[26]

The appellant acknowledged he was liable for costs based on the
jurys verdict. However, he said the respondent failed to justify double costs.
Given the evidence known to the appellant when he rejected the $80,000 offer, it
was reasonable for him to believe that he could obtain a substantially larger
amount of damages at trial. That evidence included medical information about
the respondent that the appellant believed would support his theory of
liability because it revealed, among other things, that the respondent would
[lose] concentration when driving. In opposing the request for double costs,
the appellant also cited his own precarious financial position (RFJ at paras. 1921,
32, 36).

[27]

The respondent argued that on the totality of the evidence,
including the appellants conviction under the
Motor Vehicle Act
, it
should have been readily apparent to the appellant that there was a significant
risk he could not prove liability. Moreover, to the extent that the appellant
thought information about the respondents medical condition would bolster his
claim, the respondent let the appellant know before trial that the admissibility
of those documents was in dispute. As such, there were no guarantees they would
go before the jury.

[28]

The trial judge declined to award double costs. His reasons for
doing so are briefly stated:

[39]

Here,
despite the fact hindsight makes clear the offer ought to have been accepted, I
conclude that the plaintiffs rejection of the defendants offer, when made and
to the date of trial, was not unreasonable based upon the following:

1)

the
evidence from [the collision reconstructionist] and the two lay witnesses that
there was plenty of room within the defendants lane of travel to pass the
plaintiffs trailer without contacting the plaintiffs trailer despite its
incursion into his lane of travel;

2)

the
overall magnitude of the claim given the commonality of the medical opinions
regarding the plaintiffs condition and the economic impact of the injuries he
admittedly suffered; and

3)

the
uncertainty surrounding the admissibility of the medical records of the
defendant which the plaintiff thought would assist the jury in concluding that
the defendant failed to react appropriately to reasonably avoid the collision.

4)

Finally,
the offer to settle provided no legal or factual analysis on which the
plaintiff could consider acceptance or rejection; specifically, there was no
analysis of the weaknesses of the plaintiffs position resulting in the
defendants assessment of the case in making the offer.

Issues on Appeal

[29]

In challenging the verdict on the negligence claim, the appellant
contends that: (1) the trial judge erroneously kept a portion of a witness
statement from the jury; and (2) the judge wrongly deprived the jury of
evidence about the respondents medical condition, associated symptoms, and their
potential impact on his driving.

[30]

On the appeal from the costs order, the respondent also raises
two issues. He says: (1) the trial judge misdirected himself on facts
and factors relevant to the costs analysis; and (2) he gave inadequate
weight to the purpose of double costs. In support of his costs appeal, the
respondent applies to introduce fresh evidence, namely, correspondence between
the parties relating to the September 2017 exchange of settlement offers.

Discussion

Appeal from Jurys Verdict  Excluding the Witness Statement

[31]

Two people travelling behind the respondent witnessed the
collision: Kenneth Gowan and Glen Taylor. Mr. Gowan was driving a pickup
truck. Mr. Taylor was his passenger. By the time of trial, Mr. Gowan
had died. The appellant applied to admit a statement Mr. Gowan gave to
police at the scene of the collision. From the appellants perspective, the
statement could provide evidence  that the [respondent] had plenty  or lots
of room to pass by the full length of the logging truck.

[32]

The respondent opposed the application. He acknowledged that in
light of Mr. Gowans death, the appellant satisfied the admissibility
criteria of necessity under the principled exception to the rule against hearsay.
However, he contested the statements threshold reliability. Among other
things, the respondent contended that an answer provided in the statement
responded to a leading question and was too ambiguous to leave with the
jury. The problematic portion of the statement is underlined below:

[Mr. Gowan] Ok.  It, ah, this is a guess but it
happened close to about 9:15, maybe 9:25 at the most. My friend Glen and I were
driving down the road the ah victim  passed us about 2 kilometres maybe before
the accident happened. I didnt see the point of impact itself but I saw the 2
vehicles approaching each other and it looked like there was plenty of space
and then all of a sudden the pickup ah  hit the logging truck[,] went out of
control and ah crossed the road and rolled  once (inaudible)



[Police officer] Ok. Um  so  you said that ah the pickup
when it was ah  it was southbound, it appeared that it had lots of room to go
by the trailer or the logging truck.

[Mr. Gowan] yeah, yeah
neither myself nor Glen thought much about it and all of a sudden Glen was
saying whoa, whoa, whoa and  I saw it at the same time but I never actually
saw the point of impact so I dont, I just dont know how it happened because
it looked like there was plenty of room but neither myself nor my friend were
even thinking about accident.

[Emphasis added.]

[33]

The trial judge admitted Mr. Gowans statement, but not the underlined
passages. Citing
R. v. Bradshaw
, 2017 SCC 35, the judge was satisfied
that the bulk of the statement met the test for threshold reliability. The
statement was made within 30 to 40 minutes of the collision; it was made to a
police officer in circumstances where the truth would be expected in light of Mr. Gowans
non‑biased observations; and the judge found that the gravity of the
accident [gave] rise to a presumption that the investigating police officer was
expecting the truth . As such, cross‑examination would be unlikely to
change Mr. Gowans evidence.

[34]

However, the judge excluded the impugned passages on grounds that
the answer given [by Mr. Gowan] was in response to a leading question
referencing the [log] trailer; the answer given was ambiguous, and, in the
result, could be misleading, even with proper instructions. As explained in his
ruling:

[24]      Mr. Gowan, in his initial description of the
events  was clear that he did not see the point of impact, but saw the two
vehicles approaching each other, and it looked like there was plenty of space,
and then all of a sudden the pickup hit the logging truck, went out of
control, and crossed the road and rolled over once.

[25]
Only in response to the question posed next by
the constable
that it appeared that he had lots of room to go by the
trailer
or
logging truck, did Mr. Gowan seem to agree  responding,
yeah, yeah,
but then clarifies that he nor to his knowledge his friend
Glen actually saw the point of impact, so he did not know what happened, but it
appeared there was plenty of room
.

[Emphasis added.]

[35]

The appellant says the trial judge erred in his admissibility
ruling by wrongly characterizing the police officers question as leading.
The officer did not pose a question that suggested an answer or assumed a state
of facts that was in dispute:
R. v. E.M.W.
, 2011 SCC 31 at para. 9.
Moreover, the appellant says this evidence carried substantial probative value
for his claim. Not only did it confirm his theory that there was ample room for
the respondents vehicle to pass by the entirety of the logging truck, this
portion of the statement captured the fact that the collision surprised Mr. Gowan.
It did not make sense to him in light of the space he saw between the logging
truck and the respondents vehicle as they were approaching each other. The
appellant says a jury could have inferred from that fact that the respondent
must have done something unexpected or unusual to cause or contribute to the
collision, or that he failed to take evasive action that was reasonably open to
him (appellants factum at para. 64).

[36]

The respondent says the police officers question to Mr. Gowan
was
a leading question and introduced a fact into the statement that Mr. Gowan
himself had not spoken to, namely, that there was lots of room between the
entire length of the logging truck and the respondents vehicle. As a result,
it was not possible to know from his answer of yeah, yeah to the officers
question whether Mr. Gowan was agreeing to lots of room to pass by the
tractor, or lots of room to pass by the trailer. Because of Mr. Gowans
death, the respondent had no opportunity to cross‑examine on the
difference between the two, and the respondent says the judge was right to find
that this portion of the witness statement carried the realistic potential of misleading
the jury. It implied that Mr. Gowan was able to see the positioning of the
two vehicles while the respondents vehicle was alongside the trailer, and to describe
the distance between them. Yet, in his answer to the officers question, Mr. Gowan
made it clear that he never actually saw the point of impact.

[37]

A hearsay admissibility ruling is subject to review on a
standard of correctness, if what is at issue is the legal test or the standard
for admissibility applied by the trial judge. However, the actual assessment or
weighing of relevant factors in applying that test attracts deference:
R. v.
Moir
, 2020 BCCA 116 at para. 82.

[38]

The appellant does not contest the judges ruling on grounds that
he wrongly instructed himself on the test for admissibility or applied an
incorrect legal standard. Rather, his argument focuses on the conclusion that the
portion of the statement excluded from evidence was ambiguous because of the
nature of the officers questioning. Furthermore, he contests the judges
determination that, even with proper instructions, the impugned passages could mislead
the jury. In my view, those conclusions were reached after a weighing of
relevant factors and a consideration of the evidence in the context of
everything else before the judge. Accordingly, they attract deference.

[39]

I am not persuaded the trial judge committed an error in principle,
let alone an overriding error, or was clearly wrong in excluding part of Mr. Gowans
statement. The question posed by the police officer may not have been leading,
in the technical sense, but it did misstate what Mr. Gowan said to the
officer. Prior to the excluded portion, Mr. Gowan told the officer that he
saw the 2 vehicles
approaching each other
and it looked like there was
plenty of space (emphasis added). In repeating that observation back to him,
the officer described it this way: you said that  the pickup  it appeared
that
it had lots of room to go by the trailer or the logging truck
 (emphasis
added). That is not what Mr. Gowan said. He described seeing plenty of
space as the vehicles approached each other, not lots of room to move
alongside the tractor and the trailer. In fact, as noted, Mr. Gowan told
the officer that he never actually saw the point of impact. As such, he could
not give evidence about the amount of space between the log trailer and the
respondents vehicle. He said he would be guessing as to where the pickup and
the logging truck hit.

[40]

In that context, it was open to the judge to find that the
impugned portion of Mr. Gowans statement was ambiguous, of insufficient
reliability to leave with the jury, and that it carried the realistic potential
of prejudicing the fact‑finding process. He was justifiably concerned
that a finding of there being lots of room to travel by the log trailer,
arising from Mr. Gowans statement, would be grounded in the police
officers casting of what Mr. Gowan had said to him, rather than Mr. Gowans
personal observation. As the judge noted in his discussions with counsel on the
admissibility
voir dire
, it was the officers question that threw the log
trailer into the mix, not anything mentioned by Mr. Gowan. It was only
at the instance of the police that all of a sudden the trailer [came] into it
.

[41]

I am also of the view that had the judge admitted the entirety of
Mr. Gowans statement, it would have made no difference to the verdict:
Gray
v. ICBC
, 2010 BCCA 459 at para. 30. As such, even if the admissibility
ruling reflects an error of sufficient magnitude to displace the deferential
standard of review, it does not warrant a new trial.

[42]

In deciding admissibility, the judge took the evidence of Glen
Taylor into account. By the time of the ruling, Mr. Taylor had testified
at trial. The judge described his evidence as conforming in large measure
with the description of events provided by Mr. Gowan.

[43]

Mr. Taylor was Mr. Gowans passenger. He said they were
roughly 20, 25 car lengths behind the respondent when the collision occurred.
As they approached the logging truck, Mr. Taylor could see the trailer,
the stakes  the trailer bed, and the tires. He saw the respondent pass by
the
front end of the truck  and the driver wheels of the  tractor

(emphasis added). From Mr. Taylors perspective, it just looked like
normal two vehicles passing one another. Everything looked normal as far as
passing.

[44]

In response to a question posed by counsel, Mr. Taylor admitted
to being surprised by the accident. He described how, immediately following
the collision, Mr. Gowans vehicle was able to travel southbound past the
(now stopped) logging truck in the respondents lane of travel:

A           I mean, understanding the truck had stopped
and -- and the accident was right here at the back of the trailer, all the
debris was on the highway right here, and yet we wound through it and we had two
feet on my side to the snowbank and two feet on Ken's side to the logging
truck, so all told there would be ten feet at least of highway that we can go
through no problem at all, maybe 12 feet.



A          I mean that --
that part -- you know, you think about it later more so than you do right at
the -- right at the accident you don't think of things like that, but you do --
your mind plays that whole game of remembering.

[45]

The excluded portions of Mr. Gowans statement did not add
anything to the evidence that was not otherwise available to the appellant
through the testimony of Mr. Taylor (as well as the testimony of the
appellant, who said there was four to six feet between the two vehicles). This
factor mitigates the prejudicial effect of the judges ruling:
Wright v. Sun
Life Assurance Company of Canada
, 2019 BCCA 18 at para. 88.

[46]

In fact, Mr. Taylors evidence was more robust than that of Mr. Gowan
on the question of whether there was sufficient room to get by the log trailer.
Neither witness was able to describe the point of impact; however, Mr. Taylors
observation that everything appeared normal when the vehicles began to pass each
other went beyond that of Mr. Gowans, and visually tracked the
respondents vehicle as it passed the drivers wheels of the tractor. Mr. Gowans
evidence described only the circumstances as the vehicles were approaching
each other.

[47]

Mr. Taylor also described being able to proceed through the
southbound lane after the fact. As such, his evidence offered support for the appellants
sought‑after inference that was not available through Mr. Gowan,
namely, that there was room to pass by the entire length of the logging truck
in the respondents lane. Indeed, that was precisely the submission made on
behalf of the appellant before the jury. In addition to highlighting Mr. Gowans
reference to plenty of space when the vehicles were approaching each other
(which
was
admitted into evidence), appellants counsel emphasized Mr. Taylors
testimony that there was:

nothing abnormal about the passing. He was watching,
he didn't see at the point of impact, but he did see the vehicles pass, and he
saw nothing abnormal, nothing that caught his eye



They drove through the -- the actual scene of the accident,
and driving cautiously, what he called I believe the debris, and he said that
his belief was that there was lots of room. I believe he said there was ten
feet, maybe more, like 12 feet of room, that -- where they drove through as
they go through the -- the debris, and I believe -- it will be my submission
that again that was a very good guess, because when you look at the numbers
that we got from the engineer today, that's about what the distance was in that
lane of travel. That's the available distance of the lane of travel that Mr. George
was in.



Well, the things that [the appellant, Mr. Gowan and Mr. Taylor]
came to was
he had plenty of room to pass
, and I submit that that's
important. Those are the occurrence people, that's not the people who sit down
and do calculations three years later.

[Emphasis added.]

[48]

I note that when the trial judge reviewed the evidence on
liability for the jury, he described Mr. Taylors evidence in generous
terms. He told the jury that when Mr. Taylor saw the two vehicles side by
side, cab to cab, Mr. Taylor noted there was plenty of space between
the two of them. The reference to plenty of space came from Mr. Gowan,
not Mr. Taylor. In his testimony, Mr. Taylor was not able to tell
the court anything about the distance between the two vehicles at that moment.
The judges mingling of this evidence inured to the benefit of the appellant.

[49]

In my view, the excluded portion of Mr. Gowans statement did
not deprive the appellant of an evidentiary foundation from which to argue that
there was sufficient space for the respondent to get by the logging truck, or
materially impair his ability to make that submission.

Accordingly,
I would not accede to this ground of appeal.

Appeal from Jurys Verdict  Excluding the Medical Information

[50]

The appellant also challenges a decision by the trial judge to
exclude medical information relating to the respondent.

[51]

Prior to trial, the appellant served the respondent with a Notice
to Admit (Rule 7‑7(1),
Supreme Court Civil Rules
). The Notice
attached two applications for a Disabilities Designation signed by the
respondent in 2011. The appellant sought an admission that the disability
applications contain[ed] an accurate recording of the [respondents] condition
as at the dates of each document.

[52]

The first of the applications was dated June 8, 2011, and
included a Physician Report stating the respondent had been diagnosed with,
among other things, bilateral deafness (1996), bilateral carpal tunnel
syndromes (past redemption) (2000), and hepatitis C (1992). Section 4 of the
application included an Assessor Report, the purpose of which was to document
the respondents impairments and their impact on performance of Daily Living
Activities. Under the heading Cognitive and Emotional Functioning, the
Assessor Report indicated that the impairments had moderate impact on the
respondents Attention/concentration
(e.g. distractible, unable to maintain
concentration, poor short term memory)
 (italics in the original).

[53]

The second of the disability applications was dated December 13,
2011. The Physician Report listed the same diagnoses as the first. It also
stated that the respondent was getting weaker. He is more unsteady & has
had a dozen or so falls in the last few weeks. Significant deficits with
cognitive and emotional function were noted to include Attention or sustained
concentration. Under the heading Additional Comments, it was stated that the
respondent is losing concentration when driving. The Assessor Report noted
moderate impact in the area of Attention/concentration. The respondents
impairment was likely to continue for two years or more, with an estimated
duration of lifetime:

He is being treated for [a
particular medical condition] successfully according to the blood tests. But
the illness is taking its toll as it does. He will continue to deteriorate
slowly.

[54]

The respondent delivered a Reply to the Notice to Admit. He
admitted that the disability applications contain[ed] an accurate recording of
the [respondents] condition as at the dates of each document. He also admitted
the authenticity of the documents.

[55]

At trial, the appellant sought to have the disability
applications put before the jury for the truth of their contents. From his
perspective, the documents contained evidence that the respondent was
suffering from a condition or an illness which might explain why he failed to
avoid the trailer of the [appellants] vehicle. More specifically, that the
respondent lacked  suffered from fatigue, a lack of concentration when
driving. The appellant was prepared to call the physician named in the
applications to speak to the legibility of those records (not to expand on
them, or to give [an] opinion), but he did not consider it necessary to do
so.

[56]

The respondent objected to admissibility, contending that the
disability applications were not relevant (or material) to a live issue at
trial. In support of the objection, respondents counsel emphasized that the
appellants pleadings did not cite the respondents medical condition as a
cause of the collision: If what [the appellant] really wanted to do is say
that the [respondents] medical condition caused or contributed to the motor
vehicle accident, that ought to have been a very specific particular. They
[should have] said operating a motor vehicle on a highway when his ability to
drive was impaired by his medical condition. [Thats] missing. The respondent
also argued that even with such a pleading, there was no evidence to support 
an inference that the [respondents] medical condition was in any way causally
connected to the collision that occurred. The absence of an evidentiary link weighed
against admissibility.

[57]

In response to the latter contention, the appellant said expert
opinion evidence was not necessary:

it is open to lay people, in
fact a jury, to take these fairly simple basic facts that are contained within
these records, lack of concentration, fatigue and so on thats permanent and 
and make inferences and make conclusions or not, but its information that
should be available to them.

[58]

The trial judge declined to admit the disability applications. He
found that the appellants pleadings were not specific enough to embrace a
medical condition that would alert [the respondent] to the fact that such was
an issue they had to address at trial. This included a pleading that the
respondents ability to drive was impaired by alcohol, drugs and fatigue or
any one or more of the alcohol, drugs and fatigue. Had the appellant pleaded
that one or more aspects of the respondents physical health supported a
liability finding, the defence may have considered it necessary to marshal evidence
about his medical state more proximate to the accident.

[59]

The judge also expressed concern about admitting the records without
a substantiated evidentiary nexus between the respondents medical condition
and the fact of the collision. Without such evidence, the appellants causation
theory was mere speculation. Ultimately, it was the judges view that:

[18]       placing the medical records sought to be
tendered as evidence for the jury to consider, regardless of what instruction I
give them as to the limited use of which they can make,
has a prejudicial
effect which will outweigh the probative value of what reasonably could be made
of the commentary contained within
.

[Emphasis added.]

[60]

The appellant says the judge erred in keeping the disability
applications from the jury. Moreover, doing so was fatal to successfully
advancing his claim in negligence.

[61]

First, the appellant submits that by admitting to the accuracy and
authenticity of the documents, the respondent conceded the truth of their
contents. He also conceded that the disability applications were relevant and
admissible at trial. The respondent could only pull back from that position by
seeking leave to withdraw his admission of fact under Rule 7‑7(5).
He did not do so and it was not open to him to re‑litigate the admissibility
and relevancy of the evidence (appellants factum at para. 79). Furthermore,
without withdrawal of the admission
,
the judge should have considered himself bound to place the documents before the
jury.

[62]

Second, and in the alternative, the appellant contends that the judge
committed overriding error in finding that the prejudicial effect of this
evidence outweighed its probative value. Months before the collision, a
physician recorded that the respondent was losing concentration when driving. He
also opined that the respondents health would continue to deteriorate. That
evidence was logically relevant to the issue of who, or what, caused the
[collision] and worthy of being heard by the jury (appellants factum at para. 87).
The appellant says a juror with even a modicum of common sense would
recognize that a medical condition that causes a loss of concentration while
driving could provide a logical explanation for the collision.

[63]

The appellant says there was no prejudice in admitting the
disability applications. Starting in May 2017, the appellant applied for more
than one production order relating to the respondents medical records.
Respondents counsel was aware of those applications and the resultant orders. There
was more than sufficient time to prepare a defence.

[64]

In response to this ground of appeal, the respondent contends that
the appellant did not raise Rule 7‑7(5) and its implications for the
admissibility analysis with the trial judge. Citing
Gorenshtein v. British
Columbia (Employment Standards Tribunal)
, 2016 BCCA 457 at para. 44,
the respondent says the appellant should not be allowed to raise this issue for
the first time on appeal (respondents factum at paras. 2223).

[65]

In any event, the Reply to the Notice to Admit acknowledged only
that the disability applications accurately recorded the respondents medical condition
at the time they were completed and were authentic. The respondent says he did
not admit to the truth of all of the facts and opinions stated in the
applications, including all of the recorded symptoms associated with the
diagnosed medical conditions; their impact on daily functioning; their
frequency or duration; or, importantly, the things the respondent told the physician
about his circumstances. Finally, and most significantly, the disability
applications carried minimal (if no) probative value vis‑à‑vis live
issues at trial. There was no evidence connecting the information recorded in
the documents to the respondents driving at the time of the collision. As
such, the judge was right to hold that the prejudicial effect of this material
outweighed its probative value.

[66]

The respondent is correct: the appellant did not argue below that
the Notice to Admit was determinative of admissibility. However, I do not
consider it necessary to decide whether that should preclude him from raising
the argument on appeal. In my view, even if granted leave to pursue this issue,
the appellant could not establish that the judge erred in law by not viewing himself
bound to allow the disability applications into evidence.

[67]

First, the respondents position that the admission was not as
extensive as the appellant suggests has merit. The respondent admitted that the
disability applications contain[ed] an accurate recording of the respondents
condition as at the dates of each document. However, the term condition was
not defined. Nor did the Notice to Admit specify which of the statements,
observations, opinions or other notations in the disability applications formed
part of the admission. The contents of the documents were not particularized as
facts.

[68]

As a result, it is not clear to me that admitting the
respondents condition was accurately record[ed] in the disability
applications extended beyond the formal medical diagnoses and captured
everything noted therein, or, even if it did, whether that admission was to the
truth of the notations as facts. These include the stated deficits, impairments
or symptoms associated with the medical diagnoses; the impact of those
impairments on daily functioning; their severity or duration; the likelihood of
improvement; and the respondents self‑reports about his physical health.
As cautioned in
Morrissey v. Lydiard
(1993), 35 B.C.A.C. 299, when a party relies on a
Notice to Admit as proof of the truth of the contents of one or more documents,
seeking to elevate those contents to the status of admitted facts (in whole or
part), the contents should be stipulated as facts for the purpose of the
admission. See also,
Wunsche v. Wunsche
(1994), 114 D.L.R. (4th) 314 (Ont. C.A.).

[69]

Adherence to the
Morrissey
standard is especially
important when dealing with clinical records, a consultants report, or a
physicians notes (the functional equivalent of what was at issue in this
case). Ordinarily, when these sorts of records are admitted into evidence on a
stand‑alone basis, the trier of fact can make only limited use of them in
light of their hearsay nature. As noted by Metzger J. in
Seaman v.
Crook,
2003 BCSC 464,
observations made
by a physician and treatments prescribed by them, as recorded in the documents,
are generally admissible as facts. Any
diagnoses or opinions
, however,
are admissible solely for the fact they were made. Without something more, the
diagnoses or opinions are not admissible for their truth (at paras. 1415).
See also
Healey v. Chung
, 2015 BCCA 38 at paras. 1921.
The cautionary language of this Court in
Samuel v. Chrysler Credit Canada
Ltd
., 2007 BCCA 431, is apposite: [c]linical records should not be
admitted into evidence,
by consent or otherwise
, unless counsel identify
the specific purpose for particular portions of the records (at para. 39;
emphasis added).

[70]

Second,
and in any event
, I do not accept that the admission, even if it was as extensive
as the appellant suggests, precluded the trial judge from exercising his gatekeeping
role and keeping the disability applications from the jury. In other words, the
Notice to Admit was not determinative of admissibility.

[71]

This Court has held
that a trial judge is not bound to act on a formal admission if the evidence
called at trial does not support the admission:
Boscoe v. Connelly
(1987),
5 A.C.W.S. (3d) 249 (C.A.).
Likewise,
it seems to me
that
where there is a dispute over the scope of an admission
concerning
documents; a trial judge
has questions
about the preconditions
to admissibility; or it is unclear what use can properly be made of
the
documents, the party seeking to tender that evidence must be prepared to meet
those concerns:
Morrissey
;
Wunsche
.

[72]

This includes,
logically, any concern that the prejudicial effect of the impugned evidence
outweighs its probative value. The appellant cites
Desharnais v. Parkhurst
and Romanowski
, 2013 BCCA 113, for the proposition that securing admissions
through a Notice to Admit will normally dispense with the need to establish
the preconditions to admissibility (at para. 94). I agree. However, where
an admissionas hereis unclear and the parties disagree on its scope and legal
effect, the general rule must allow for a flexible application. Moreover,
dispensing with the preconditions to the admissibility of documents does not
necessarily mean that the entirety of
those
documents
is
then available for the truth of their contents
.

[73]

A
s I
see it, the respondent did not withdraw from his admission. Instead, the
objection to admissibility was that the condition of the respondent,
although
accurately recorded in the disability applications as at the date of those
documents
, carried no probative value because of the lack of a demonstrated
nexus between the condition and the collision. Moreover, because of the
absence of a nexus, the documents, if placed before the jury on a stand‑alone
basis, would have prejudicial effect. In my view, the Reply to the Notice to Admit
did not preclude the respondent from invoking the evidentiary gatekeeping role of
the trial judge on this basis.

[74]

I accept the appellants position that if the respondent was
objecting to admissibility on the basis of relevance, or he was unsure of the scope
of the admission, he should have been clear about that from the beginning and
flagged it in his Reply (Rule 7‑7(2)(c)). However, he did tell the
appellant of his opposition to admissibility prior to the commencement of
trial. Furthermore, in response to another of the appellants sought‑after
admissions, the Reply was explicit that, from the respondents perspective,
there was 
no
reliable evidence with respect to the medical condition of
the [respondent] immediately prior to the accident (emphasis added). As such,
the appellant ought to have known that the materiality of pre‑collision medical
information involving the respondent was in issue.

[75]

I am satisfied that, notwithstanding the admission, the
trial judge retained discretion to determine
admissibility and to keep the disability applications from the jury if he considered
their admission improper. Even where parties have consented to documents being
put before a jury, that factor will not always be determinative of whether they
should have been entered into evidence:
Han v. Park
, 2015 BCCA 324 at para. 32.
The parties received full opportunity to make submissions on admissibility,
addressing both the logical and the legal relevance of the evidence. The judge
considered those submissions and, ultimately, he used his discretion to exclude
the disability applications. This he was entitled to do.

[76]

A judges decision to disallow evidence after weighing its
probative value and prejudicial effect is entitled to considerable deference,
provided it is not premised on a wrong legal principle or the result of a
palpable or overriding error:
Houston v. Kine
, 2011 BCCA 358 at para. 14.
Finally, if the judge erred in keeping the disability applications from the
jury, a new trial is not warranted if a properly instructed jury, acting
reasonably, would necessarily have reached the same result had the evidence been
admitted:
Tsoukas v. Segura
, 2001 BCCA 664 at paras. 7374, citing
Anderson
v. Maple Ridge (District)
(1992), 71 B.C.L.R. (2d) 68 at 77.

[77]

I would not give
effect to the appellants alternative submission that the trial judges weighing
of probative value and prejudicial effect reveals overriding error. A close
review of questions posed to appellants counsel on the admissibility
voir
dire
reveals that the judge had significant concern about the absence of
evidence linking the statements in the documents to the respondents driving at
the time of the collision. The following excerpts from the dialogue with
counsel are lengthy, but they make clear the issue that was troubling the
judge:

what do you say to [the respondents] point that the
mere fact of a medical condition, there needs to be something more? I think I
raised this when I was questioning you that in the absence of something else,
if this was corroborative of some other evidence that would explain a course of
action taken by the defendant that might -- in the face of conflicting evidence
weigh the scale one way or the other, but what is the link between his medical
condition as we know it in December of 2012 -- '11, pardon me, to some 13
months later that allows the trier of fact to simply say, well, his health
wasn't the best and that's a possible explanation?



this is a very long bow for a jury to stretch to say,
well, we know he had problems with concentration, we know he was deaf, we know
he can't pick things up that [weigh] over five kilograms, ergo it is possible.

Anything's possible, just as you could say, well, he had
heart problems and surely you don't suggest that if he'd had heart problems
from time to time and was on heart medication that absent a medical opinion
saying there was a heart attack at the time of the accident that -- absent
anything else you can say, well, he had heart problems. Maybe that explains the
accident.



how does this jury know  13 months later that [the
respondent] was still having concentration problems? The only permanence that
is ascribed to the conditions are those that are set out and noted as permanent



Its not for [the jurors] to come up with an explanation. Its
for them to weigh evidence and determine on the basis of the evidence whether
somebody has proven the case, not to speculate as to the many -- many may be
overstating it, but a variety of possible explanations for this. And as I say,
Im concerned about the length of time.



this is a point in time separate from the accident. I
appreciate what youre saying. Its a CPP disability form and it says, yes, the
permanent symptoms are going to last more than two years, hence the disability,
the permanent disability, but I am having a lot of difficulty with the
proposition that just a symptom absent something that causally connects that
symptom to the issue of negligence is something that just leaves open for the
jury to infer negligence.



We just pick a point in time and
we assume that things either got worse or stayed as they are described in that
document and that was what was prevailing and it was at that moment in time
because of the curve, that despite the fact that theres no other indication of
his driving being erratic or him doing anything with these people following for
I dont know how long, that this goes into evidence to leave the jury with the
thought that maybe he just missed the corner.

[78]

The appellants response to the concern about an insufficient
causative connection was that the judge underestimated the probative value of
the disability applications, standing on their own, and the inferences
available from them. The appellant said the jury could infer, without expert
opinion or any evidence of distracted or abnormal driving, that the respondent
had a propensity for lost concentration while driving and that it manifested
itself while passing the logging truck. If you already have the underlying
fact that you have difficulty with concentration or difficulty with driving,
then you have difficulty with driving and that is an explanation. It doesnt 
an expert would add nothing to it at all.

[79]

I agree with the trial judge that
the probative value of the disability applications, standing alone, was
minimal.

[80]

Contrary to the judges view, I
accept that these records passed the logical
relevance threshold
on the pleadings as framed by the appellant. In
R.
v. Arp
, [1998] 3 S.C.R. 339, the Supreme Court made it clear
that to
be logically relevant, an item of evidence does not have to firmly establish,
on any standard, the truth or falsity of a fact in issue. The evidence must
simply tend to increase or diminish the probability of the existence of a fact
in issue.  As a consequence, there is
no minimum probative value
required for evidence to be relevant
 (at para. 38; internal reference
omitted; emphasis added). The pleadings put the respondents physical condition
in issue, with a specific allegation of fatigue while driving. They also
alleged driving without due care and attention.

[81]

However, I am satisfied it was nonetheless reasonably open to the
judge to find that without something more than broadly stated diagnoses, symptoms,
impairments and self‑reports,
recorded 13 months prior to the collision
,
an inference that a loss of concentration while driving must have caused or
contributed to the collision would be speculative. This is so
even if
the Court gives the appellant the benefit of the doubt on the scope of the
admission obtained pursuant to the Notice to Admit and assumes for the purpose
of this appeal that the respondent admitted to the truth of the documents
contents. (I note that statements made by the respondent about his own mental
and physical health, as recorded in the disability applications, would have
been admissible for their truth as statements against interest in any event:
Bancroft‑Wilson
v. Murphy
, 2009 BCCA 195 at para. 9.)

[82]

In
R. v. Hall
,

2018 MBCA 122, Mainella J.A.
explained that the prejudicial effect of evidence is assessed:

[127]     by identifying the dangers of the evidence
and considering how real those dangers are to the fairness of the trial .
Prejudice, however, does not refer to the mere fact that the evidence supports
the moving party's case to the prejudice of the respondent .

[128]    Some of the dangers otherwise admissible evidence
may cause to the fairness of a trial are
undue arousal of the jury's
emotions, distraction, unnecessary delay or repetition, unfair surprise to a
party and usurpation of the role of the jury
.

[Internal references omitted;
emphasis added.]

[83]

I would add to this the risk of improper use through conjecture
or speculative reasoning. As aptly stated by Doherty J.A. in
R. v. Figueroa,
2008 ONCA 106, [w]hile it is for the jury to choose among reasonable
inferences available from the evidence, the jury cannot be invited to draw
speculative or unreasonable inferences (at para. 35).

[84]

As I read the reasons on the admissibility
voir dire
, this
was the judges predominant concern about admitting the disability applications
as stand‑alone evidence. To establish liability, the appellant wanted the
jury to infer that the respondent lost concentration while driving past the logging
truck, and, as a result, that he either did not see the last of the bunks on
the trailer or was not paying enough attention to take precautionary measures
by moving to the right. The judge was concerned that the jury could not
reasonably draw that inference from the contents of the applications. I
appreciate that the line between a permissible inference and impermissible speculation
is often difficult to determine. However, it was not unreasonable for the judge
to conclude that records created 13 months before the collision, in which the respondent
had reported (or a physician had inferred) that he was losing concentration
when driving, did not provide a
sufficiently
reliable
grounding for the sought‑after inference.

[85]

Other than the one reference to
losing concentration (without a causal explanation), there was nothing in the
disability applications explicit to impairment of the respondents ability to
drive. In both applications, the physician described the respondents medical
circumstances as having moderate impact on his ability to maintain
concentration. However, he offered no particularity on how often a loss of
concentration was occurring (frequent, sporadic or rare); how it manifested
itself; its duration or degree; or the extent to which the respondents driving
was
actually
affected, if at all.
Critically, the documents shed
no light on whether there was a loss of concentration at the time of the
collision; the likelihood of that having occurred; or even the extent of any
propensity in this regard. In his charge to the jury, the judge properly said
that before drawing an inference, there must be a solid base of proven facts
.  No issue should be decided on the basis of a
guess, no matter how shrewd that guess may be. Neither party takes issue with
the propriety of that instruction.

[86]

As noted, a decision to disallow evidence after weighing its
probative value and prejudicial effect is entitled to considerable deference on
appeal:
Houston
at para. 14. The trial judge is in a far better
position than this Court to assess prejudicial effect as informed by the
pleadings, the parties theories of the case, the evidence, and the strength of
the inferences sought from that evidence. Although another judge might have
allowed the disability applications into evidence, the fact that this judge
chose not tostanding on its ownis not sufficient to displace the deferential
standard of review. I see no error in principle here, or a palpably wrong
admissibility determination.

[87]

In any event,
I am satisfied
that
a properly instructed jury, acting
reasonably, would have reached the same result on liability even with this
evidence.

[88]

Mr. Taylor testified that the
respondent passed Mr. Gowans vehicle two or three miles before the
collision. He said there was nothing unusual about the respondents driving
when managing that pass. After he passed, and while Mr. Gowan and Mr. Taylor
followed the respondent towards the logging truck, everything went great.
Again, there was nothing of concern about the respondents driving. Similar to Mr. Gowan,
he was driving under the speed limit. Mr. Taylor could see the respondent pass
by the front end of the logging truck and [e]verything looked normal. There
was nothing in the evidence surrounding the respondents

driving to
suggest that he was distracted, not paying attention, failing to keep a proper
lookout, driving unsafely, or that he had time to take evasive measures, but
failed to do so. There was no evidence to suggest that his pickup truck was
anywhere other than
appropriately in his lane of travel
, where one might reasonably expect a vehicle to be. None
of the civilian witnesses could testify about the positioning of the logging
truck and the pickup immediately prior to impact. They did not see the vehicles
collide. The appellant called no expert evidence to indicate that the
respondent was operating his vehicle without due care and attention in light of
the conditions of the road or vis‑à‑vis the logging truck.

[89]

On the other hand, there
was
expert evidence that the outer bunk at the rear of
the log trailer had encroached on the southbound lane of travel at the point of
impact, providing a plausible explanation for the collision arising from the
appellants
failure to keep to the right while passing an oncoming vehicle on a curved and
icy roadway.
The warning flags attached to the rear of the trailer were
not bright red or orange. There was testimony that they did not meet the
required size. They were tattered and faded, to the point of notalmost being
invisible.

[90]

The appellant admitted,
as a fact, that he had been found guilty of operating
his logging truck
in a manner that "[departed] from the accustomed sober behaviour of a
reasonable person". He was driving without due care and attention. He
further admitted that the Provincial Court found a part of his trailer had
crossed into the southbound lane of travel. Again, there was no such evidence
relating to the respondents driving.

[91]

In the context of this factual matrix, I do not see how the
disability applicationsreflecting observations made of the respondent, or
symptoms reported by him, more than a year before the collisionwould have
taken the jury from dismissal to liability on a balance of probabilities. I say
this given the cryptic nature of many of the notations in the applications; no explanation
of their meaning; only one reference to losing concentration when driving,
without explanatory context; and the absence of evidence, in the form of expert
opinion or otherwise, showing a causal or even temporal connection between the medical
conditions, their symptoms and the collision. As noted in
Samuel
, the
notes found in medical-related records are often meaningless to [a] jury
without explanatory
viva voce
evidence (at para. 9).

[92]

Because of the inherent hardship
associated with a new trial, the resultant uncertainty, delay and added costs,
an
appellant who seeks a retrial in a civil case is required
to put a strong case forward:
de Araujo v. Read
,
2004 BCCA 267
at
paras. 50
52
.
Generally, a new trial will not be ordered unless
it is plainly required in the interests of justice:
Mazur v. Lucas
, 2010 BCCA 473
at paras. 4546;
Tsoukas
at paras. 7175.

[93]

In my view, the appellant has not
put forward a strong case for a new trial. Accordingly, I would not accede to
this ground of appeal
.

Appeal from Denial of Double Costs

[94]

Under Rule 9‑1(5)(b) of the
Supreme Court Civil Rules
,
a judge may award double costs of all or some of the steps taken in the proceeding
after the date of delivery or service of [an] offer to settle. In making this order,
the judge may consider
: (1) whether the settlement
offer was one that ought reasonably to have been accepted; (2) the
relationship between the terms of that offer and the final judgment; (3) the
relative financial circumstances of the parties; and (4) any other factor
considered appropriate (Rule 9‑1(6)).

[95]

In
Bains v. Antle
, 2019 BCCA 383, Dickson J.A. explained
that whether an offer ought reasonably to have been accepted is considered without
the benefit of hindsight:

[34]

In
other words, only the circumstances in existence at the time of the offer are
relevant, not the award made at trial:
Cottrill v. Utopia Day Spas and
Salons Ltd.
, 2019 BCCA 26;
Bailey v. Jang
, 2008 BCSC 1372 at para. 24.
The question is not whether the offer itself was reasonable, but whether it was
unreasonable to refuse it:
Cottrill
at para. 30. In answering this
question, the court may consider the recipients subjective reasons for
rejecting the offer, but must also decide whether those reasons are objectively
reasonable:
C.P. v. RBC Life Insurance Co.
, 2015 BCCA 30 at para. 97.

[35]

In
Hartshorne v. Hartshorne
, 2011 BCCA 29 at para. 27, this Court set
out several factors that may be considered in assessing the reasonableness of
refusing an offer. They include: the timing of the offer; whether it had some
relationship to the claim; whether it could easily be evaluated; and whether
some rationale for it was provided.

[36]

The
relationship of the offer to the claim is relevant because it speaks to whether
a plaintiff should be penalized for proceeding to trial in hopes of achieving
more than what was offered. It is not unreasonable for a plaintiff to refuse an
offer that is a fraction of the amount sought, provided the plaintiff had
reasonable confidence in her claim:
Cottrill
at para. 32; see also
Tisalona
[
v. Easton
, 2017 BCCA 272] at para. 102;
Wafler v. Trinh
,
2014 BCCA 95 at paras. 53, 6465. In several decisions below, the court
has considered this relationship to be important where there was objective
evidence supporting a plaintiffs claim for loss of earning capacity although
the claim was ultimately rejected at trial. For example, in
Payne v. Lore
,
2010 BCSC 1313, Justice Wedge found that, had the plaintiffs claim for future
income loss been successful, the defendants offer would have fallen well short
of the award at trial and, therefore, it was not unreasonable for the plaintiff
to refuse the offer: at paras. 2829. In
Parker v. Martin
, 2017
BCSC 1161, Justice Ball noted that by the time the offer in question was
received, the plaintiff had retained expert medical witnesses whose opinions
supported his belief that there was a real and substantial possibility of
future income loss: at para. 26.

[37]

A further relevant consideration under
Rule 9‑1(6)(a) may be whether the plaintiff knew her claim was largely
dependent on the courts assessment of her credibility:
Wafler
at para. 73;
Gehlen v. Rana
, 2011 BCCA 219 at paras. 5051. This is because
there is more risk in proceeding to trial where a claim lacks objective
evidence and, therefore, refusal of a reasonable offer may be unreasonable.

[96]

Granting or denying double costs engages a broad discretion. The
parties agree that a deferential standard of review applies. An appellate court
may only interfere with a costs order if the party seeking to have the order
set aside demonstrates an error in principle or that the award is plainly
wrong:
Hartshorne v. Hartshorne
, 2011 BCCA 29 at para. 23;
Bains
at para. 30.

[97]

The respondent says the trial judge committed errors in principle.
For one, his finding that the appellant possessed evidence of plenty of room
in the respondents lane of travel when passing the logging truck reflects a
misapprehension of the evidence (RFJ at para. 39). Second, when
considering the overall magnitude of the claim, the judge was wrong to
conclude that if the appellant succeeded in proving liability, in whole or in
part, his damages would likely have exceeded the $80,000 offer. The appellant
was seeking a cumulative $730,000, plus non‑pecuniary damages; however,
the respondent led expert evidence that the appellants degree of disability
was less than asserted and his future losses would not have been as substantial
as claimed. Assuming a division of liability substantially in favour of the
respondent, the aggregate damages award would likely have been less than or
close to $80,000.

[98]

The respondent says it was an error for the judge to include in
his costs analysis the uncertainty surrounding the admissibility of the
respondents medical information. Those records carried no probative value
because of their remoteness in time from the collision; they would not have
affected the result; and the appellant ought to have known this. To the extent
that the appellants decision to reject the $80,000 relied on the disability
applications, the rejection was unreasonable.

[99]

The respondent also contends that as a matter of legal principle,
there is no requirement that a settlement offer include a legal or factual
analysis in support of the offer, explaining the perceived weaknesses with the other
partys case. The trial judge was wrong to treat this as a requirement. The
respondents rationale for offering $80,000 should have been obvious to the
appellant, especially in light of the appellants conviction under the
Motor
Vehicle Act
. In the alternative, the respondent applies to tender fresh
evidence on this point, consisting of an email sent to appellants counsel the
day before delivery of the settlement offer, with a rationale for the $80,000:

I dont find your client to be a very sympathetic witness.
Moreover, his negligence resulted in the death of my client. We will argue for
a dismissal of the action with costs.

In the grand scheme of things, I do not foresee a jury 
rewarding him with a large sum of money  even in the
unlikely
event
that a small degree of negligence was apportioned against our deceased client.

[Italics in the original.]

[100]

Finally, the respondent contends the judge erred by failing to
give sufficient weight to the underlying objective of Rule 9‑1(5)(b).
This rule is designed to encourage settlement wherever possible by requiring
litigants to carefully assess the strengths and weaknesses of their case before
trial:
Giles v. Westminster Savings and Credit Union
, 2010 BCCA 282 at para. 74.
A careful pre-trial assessment in this case should have led the appellant to
recognize that his negligence claim was based on irrelevant considerations and
an inadequate review of the available evidence. In not awarding double costs,
the trial judge has undermined the purpose of Rule 9‑1(5)(b).

[101]

In my view, the respondents challenge to the costs award does
not provide a principled basis on which to displace the significant deference
owed to the judges ruling.

[102]

It is apparent from the RFJ that the trial judge understood the
respondents bases for claiming that the rejection of the settlement offer was
unreasonable (see paras. 1019, 26). In considering the respondents
position, the judge correctly instructed himself on the application of Rule 9‑1(5)(b),
including the non‑exhaustive factors for consideration under 9‑1(6).
He turned his mind to the guiding legal principles, with explicit reference to
C.P.
v. RBC Life Insurance Co.
, 2015 BCCA 30, and
Cottrill v. Utopia Day Spas
and Salons Ltd.,
2019 BCCA 26 (RFJ at paras. 2324). Those decisions
set out the purposes of Rule 9‑1(5), emphasized by the respondent in
the appeal. The judge was alive to the rules objectives (at para. 23), as
well as his obligation to exercise his discretion judicially (at para. 38).

[103]

The judge conducted his costs analysis based on information known
to the appellant at the time of the offer, before the admissibility rulings
kept some of that evidence from use at trial (RFJ at paras. 25, 39). This
included the witness statement of Mr. Gowan, in which he responded affirmatively
to the question of whether there was lots of room to go by the trailer
or
the logging truck (emphasis added). It also included evidence from Glen Taylor
at the appellants Provincial Court trial. There, Mr. Taylor testified
that when the pickup truck passed the cab of the logging truck, there was
ample room between them, five to six feet. (He did not provide this same
estimate of distance at the civil trial). Prior to rejecting the settlement offer,
the appellant also had a copy of the report prepared by the collision
reconstructionist who testified at trial and the documents he reviewed in
preparing his report. From measurements contained in that material, the appellant
calculated that the respondent had 1.3 metres of additional space in his lane
of travel when moving past the log trailer.

[104]

It was not improper for the judge to consider the availability of
this material, even though some of it did not make its way before the jury.
Whether a party unreasonably rejected a settlement offer is not determined with
reference to the trials outcome:
Cottrill
at para. 29. I also do
not agree that the judge misapprehended this evidence or incorrectly took the
uncertainty surrounding the admissibility of the [respondents] medical
records into account. The respondent interprets the evidence differently and
considers the admissibility rulings to have been a
fait accompli
, but that
does not mean the trial judge erred in principle by giving weight to the
appellants pre‑trial lens, including the inferences the appellant
considered available to a jury. In my view, the respondent has brought a post‑trial
perspective to these aspects of his submission.

[105]

Finally, I am not persuaded the trial judge erred in considering
the overall magnitude of the appellants damages claim or the absence of any
legal or factual analysis supporting the offer as delivered to the appellant.
Neither of these factors were determinative, and this Court has recognized the
legitimacy of both in a double costs analysis:
Bains
at paras. 3536.

[106]

The $80,000 represented only a fraction of what the appellant was
seeking, and the judge accepted, based on the commonality of the medical
evidence available to the parties,
as known by him
, that even a partial
liability finding may have resulted in damages beyond the $80,000 (RFJ at paras. 9,
34). An articulation of the rationale behind the $80,000 would have provided a
more substantial informative context from which to assess the objective
reasonableness of the rejection. The respondent has attempted to fill this gap
through the fresh evidence application; however, in my view, that evidence
should not be admitted. The affidavit in support of the application
acknowledges that the email sent the day prior to formal delivery of the offer
was available prior to the respondents submissions on the costs hearing and
could have been made available to the trial judge. As such, the fresh evidence
does not meet the due diligence criteria for admissibility:
Palmer v. The
Queen
(1979), [1980] 1 S.C.R. 759. In any event, the explanation contained
in that email offers no real analysis of either partys case.

[107]

The trial judge was in the best position to assess the reasonableness
of the decision to reject the respondents offer. He sat through the
admissibility
voir dires
, as well as the 10‑day trial, with
opportunity to develop a deep appreciation of the evidence available to the
appellant at the time the offer was rejected:
Bains
at para. 38.
Applying a deferential standard of review, I would not interfere with the
judges exercise of discretion to award single costs.

Disposition

[108]

For the reasons provided, I would dismiss the appeal from the
jurys verdict.

[109]

I
would also dismiss the application to adduce fresh evidence on the appeal from
the costs order and dismiss that appeal.

The
Honourable Madam Justice DeWitt‑Van Oosten

I AGREE:

The Honourable Madam Justice
Saunders

I AGREE:

The Honourable Madam Justice
Dickson


