COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

United Mexican States v. British Columbia (Labour
  Relations Board),

2015 BCCA 32

Date: 20150130

Docket:
CA041589

Between:

United Mexican
States and Consulado General
de Mexico en Vancouver

Appellants

(Petitioners)

And

British Columbia
Labour Relations Board, Certain Employees of
Sidhu & Sons Nursery Ltd., Sidhu & Sons Nursery Ltd., and United
Food and Commercial Workers International Union, Local 1518

Respondents

(Respondents)

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Supreme Court of British Columbia,
dated January 15, 2014 (
United Mexican States v. British Columbia
(Labour Relations Board)
, 2014 BCSC 54, Vancouver Docket S132385).

Counsel for the Appellants:

P.A. Gall, Q.C. &
  L.J. Wihak

Counsel for the Respondents BC Labour Relations Board:

D.W. Garner

Counsel for the Respondents United

Food and Commercial Workers International Union, Local
  1518:

C.G. Buchanan

Place and Date of Hearing:

Vancouver, British
  Columbia

December 2, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2015

Written Reasons by:

The Honourable Mr. Justice
  Harris

Concurred in by:

The Honourable Mr. Justice
  Groberman

The Honourable Mr. Justice
  Willcock

Summary:

Certain Mexican workers in a
union representing agricultural workers applied to the British Columbia Labour
Relations Board to cancel the unions certification, following a representation
vote. The union filed a complaint with the Board, arguing, inter alia, that
Mexico had improperly interfered with the representation vote, within the
meaning of s. 33(6)(b) of the Labour Relations Code, such that the vote
was unlikely to disclose the true wishes of the union employees. Mexico raised
a preliminary objection before the Board, arguing that the Board was barred by
the doctrine of state immunity, as codified in s. 3(1) of the State
Immunity Act, from adjudicating in relation to its conduct and was therefore
prohibited from making a finding that it had engaged in improper
interference. Held: Appeal dismissed. A finding of improper interference
under s. 33(6)(b) of the Code does not amount to an exercise of
jurisdiction over the individual or organization that engaged in improper
interference. That individual or organization is neither directly nor
indirectly impleaded by such a finding. The doctrine of state immunity
therefore does not apply.

Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal from the dismissal of a judicial review petition
brought by the United Mexican States and Consulado General de Mexico en
Vancouver (Mexico). The judicial review concerned the scope of state immunity
codified in the
State Immunity Act
, R.S.C. 1985, c. S‑18 [
SIA
].
The issue arose out of a decision of the British Columbia Labour Relations
Board (the Board) in the context of an application to decertify the United
Food and Commercial Workers International Union, Local 1518 (the Union)
as the bargaining agent for a group of agricultural workers. The Board
concluded that state immunity did not prevent it from considering and making
findings regarding Mexicos conduct for the purpose of deciding whether a
representation vote was unlikely to disclose the true wishes of the employees
in the Union because of improper interference by Mexico. The chambers judge
agreed.

[2]

This appeal also raised the question of whether the
Vienna Convention
on Consular Relations
, 24 April 1963, 596 U.N.T.S. 261 [
Vienna
Convention
],

precludes the Board from hearing the voluntary
testimony of former consular employees of a state without the consent of that
state. The Board concluded that it could receive that evidence. The chambers
judge agreed.

[3]

Since the hearing of the judicial review, the Board has considered the
merits of the decertification application, including receiving the evidence from
the consular employees. I am satisfied that this issue is moot, given that a
primary purpose of the immunity provided to consular employees is to protect
confidentiality and that protection has now been lost. Accordingly, I will
focus in these reasons only on the state immunity doctrine.

[4]

At the outset, it is important to emphasize that the issue on this
appeal is the extent of state immunity provided by the
SIA.
Section 3(1)
of the
SIA
is the critical section. It provides:

3. (1) Except as provided by this
Act, a foreign state is immune from the jurisdiction of any court in Canada.

[5]

I emphasize that the issue is the extent of state immunity because, in
my opinion, Mexico seeks to expand the scope of state immunity by reference to
the related, but different, doctrine of act of state. As I will explain, the
doctrine of act of state may confer a subject matter immunity that will lead a
court to decline to adjudicate matters involving the sovereign acts of foreign
states even in circumstances where there is no state immunity under the
SIA.
In this case, however, Mexico has not argued at any stage in the
proceedings that the Board should decline to consider its conduct on the
independent ground that its acts are also protected by the doctrine of act of
state. Accordingly, the only question on this appeal is whether the Board, in
considering the conduct of Mexico, exercised jurisdiction over it contrary to
the protection provided by s. 3(1) of the
SIA.

[6]

For the reasons that follow I would dismiss the appeal.

Background

[7]

A detailed background of the events leading to these proceedings is
contained in the decision below:
United Mexican States v. British Columbia
(Labour Relations Board)
, 2014 BCSC 54. For the purposes of this appeal, it
is necessary to highlight only the following.

[8]

The Union is the certified bargaining agent for workers employed by
Sidhu & Sons Nursery Ltd. (the Employer), an agricultural nursery and
farming business in British Columbia. The Employer hires its workers through
the Federal Governments Seasonal Agricultural Workers Program (SAWP), a programme
based on bilateral agreements between Canada and foreign governments, including
Mexico. Under SAWP, Mexico is responsible for selecting and approving the
citizens who will participate in the programme. It may repatriate its citizens
or terminate their participation in SAWP at any time. Mexican workers were
hired by the Employer, but not all members of the Union were Mexican; some came
from other countries, it appears.

[9]

Following a representation vote, on April 11, 2011, certain
employees of the Union (the Employees) applied to the Board to decertify the
Union pursuant to s. 33(2) of the
Labour Relations Code
, R.S.B.C.
1996, c. 244 [
Code
].

[10]

On April 19, 2011, the Union filed a complaint against Mexico, the
Employer, and the Employees, seeking the dismissal of the decertification
application on the basis that Mexico had engaged in: (a) unfair labour
practices, contrary to ss. 6 and 9 of the
Code
;

and (b) improper
interference, within the meaning of s. 33(6)(b) of the
Code
, such
that the representation vote was unlikely to reflect the true wishes of the
employees in the Union. The Union alleged that Mexico employed a policy of
preventing workers who supported the Union from returning to Canada or from
working in unionized workplaces.

[11]

Mexico raised a preliminary objection before the Board, claiming state
immunity from the Boards jurisdiction under s. 3(1) of the
SIA
. In
its February 1, 2012, decision on this issue, the Board found that it
lacked jurisdiction to require Mexico to participate as a party in the
proceedings and that it could not make any orders against Mexico. Accordingly,
it dismissed the Unions unfair labour practices complaint. The Board held,
however, that it could consider Mexicos conduct insofar as any improper
interference by Mexico affected the exercise of its discretion to cancel or
refuse to cancel the certification arising from s. 33(6) of the
Code
:
Re Sidhu & Sons Nursery Ltd.
, BCLRB No. B28/2012 at
paras. 4647.

[12]

Following that decision but before the decertification hearing, the
Union informed the Board and remaining parties that it intended to call former
consular employees of Mexico to testify as to Mexicos SAWP policy. Mexico then
made submissions asserting that the Board was barred from hearing the testimony
of the former employees by the
Vienna Convention
, and that the
SIA
prevented
it from making any legal or factual findings of improper interference by Mexico
on the basis of their testimony.

[13]

On February 23, 2012, the Board concluded that it could hear the
evidence of the former consular employees if provided voluntarily, and started the
decertification application, during which those former employees testified.

[14]

Subsequent to the decertification hearing but before a decision was
rendered, Mexico again argued that the Board was barred by state immunity from
inquiring into Mexicos conduct for the purposes of an improper interference
analysis under s. 33(6)(b) of the
Code
, and from making any legal
or factual findings in relation to Mexicos conduct. It asked the Board to rule
on this issue prior to deciding on the decertification application.

[15]

The Board ruled on September 21, 2012, that the
Vienna
Convention
prevented it from hearing the testimony of the former consular
employees, but that it was not barred by the
SIA
from making findings of
fact based on other admissible evidence concerning Mexico in relation to the
allegations of improper interference:
Re Sidhu & Sons Nursery Ltd.
,
BCLRB No. B194/2012.

[16]

All parties, including Mexico, applied for reconsideration of that
decision. On March 7, 2013, the Board issued its decision in which a
majority held that the Board was neither precluded from hearing the testimony
of the former consular employees, so long as they testified voluntarily, nor
from making findings in relation to whether Mexicos conduct amounted to
improper interference, within the meaning of s. 33(6)(b) of the
Code
:
Re Sidhu & Sons Nursery Ltd.
, BCLRB No. B54/2013.

[17]

Mexico then applied for judicial review of the reconsideration decision,
which was dismissed by Madam Justice Warren in the court below.

The Chambers Judgment

[18]

Madam Justice Warren decided that the
SIA
did not preclude the
Board from inquiring into, and making factual or legal findings in relation to,
Mexicos conduct for the purpose of determining whether it had engaged in
improper interference. In doing so, the Board was not exercising jurisdiction
over Mexico contrary to s. 3(1) of the
SIA.
Mexico was no longer a
party to the proceedings, no orders could be made against it, and no finding
was made that it had violated the
Code.
She also held that nothing
prevented former consular employees of Mexico from voluntarily giving evidence,
even in the absence of a waiver of immunity by Mexico. In the result, she
dismissed the petition.

[19]

The chambers judge reasoned that a finding by the Board of improper
interference under s. 33(6)(b) is different in nature from a finding that
someone has engaged in unfair labour practices and thereby violated the
Code.
At para. 61, she said:

[61]       the phrase improper
interference is only referenced in s. 33(6)(b), there is no express
prohibition against conduct amounting to improper interference, and a finding
of improper interference for the purpose of s. 33(6)(b) is not a finding
that the
Code
has been violated.

[20]

With respect to the nature of a finding of improper interference under
s. 33(6)(b), Madam Justice Warren held that such a finding is merely a
basis upon which the Board may dismiss a decertification application without
regard for the result of a representation vote and does not constitute a
finding that the
Code
has been violated: at para. 66, Madam
Justice Warren went on to hold:

[67]      The conclusions of
the majority in the Reconsideration Decision regarding the nature of the
Boards jurisdiction under s. 33(6)(b) have not been shown to be patently
unreasonable. In summary, a finding of improper interference under s. 33(6)(b)
of the
Code
is unlike a finding that a party has engaged in unfair
labour practices. It is not a declaration that a person has breached the
Code
.
Rather, it is a finding that may result in a decision by the Board to refuse to
decertify a union notwithstanding the outcome of a representation vote. This is
a consequence that has legal effect on the employer, the employees, and the
union.
There is no legal consequence for any other person who is found to
have improperly interfered
.

[Emphasis added.]

[21]

The chambers judge next considered the scope of the immunity conferred
by s. 3(1) of the
SIA
, which as noted above, reads, Except as
provided by this Act, a foreign state is immune from the jurisdiction of any
court in Canada. She stated the issue before her in this way:

[68]      The question, then, is
whether the immunity conferred by s. 3(1) of the
SIA
precludes the
Board from considering and making findings regarding Mexicos conduct in a
decertification application to which Mexico is not a party, in which no remedy
is sought against Mexico and no claim is advanced against any of Mexicos
property, and as a result of which Mexico is exposed to no legal consequence.

[22]

After a review of Canadian and international jurisprudence on the
doctrine of state immunity, the chambers judge held that the natural or
ordinary meaning of s. 3(1) is that Canadian courts may not embark upon
proceedings that could affect a foreign states legal rights, by impleading the
state, directly or indirectly, or attacking its property, unless one of the
exceptions provided elsewhere in the
SIA
applies: at para. 98. Put
another way, [i]t is the subjection of [state] conduct to the control of a
foreign court that is precluded by s. 3(1) of the
SIA
: at para. 121.

[23]

Ultimately, Madam Justice Warren held that the
SIA
did not
preclude the Board from inquiring into or making findings relating to whether
Mexico had engaged in improper interference because Mexico was not subject to
the control of the Board and remained free to administer SAWP in whatever
manner it deemed appropriate: at para. 125. She stated, in summary:

[133]    It is one thing for Canadian courts to refrain from
imposing Canadian labour law on a foreign employer if necessary to avoid
interfering with a foreign states sovereign functions. It is quite another
thing to ignore conduct of a foreign state that is relevant to the imposition
of Canadian labour law on a Canadian employer. In my view, a determination by
the Board that Mexicos conduct has legal consequences for Canadian employers
and their employees would not interfere with Mexicos autonomy. Such a finding,
if made, would not purport to regulate, change, or interfere with Mexicos
conduct. It would merely acknowledge that Mexicos conduct can have
consequences for others under Canadian law.

[134]     In other words, it is
accepted that Canadian courts and tribunals cannot purport to regulate the
sovereign conduct of a foreign state. What is not accepted is the notion that
the mere inquiry by a Canadian court or tribunal into the conduct of a foreign
state in proceedings involving other parties, where no jurisdiction is asserted
over the foreign state, where the state is not impleaded, where there is no
possibility of any remedy being issued against the state, and where the states
legal interests are not imperiled, would constitute the regulation of the
foreign state or in any way interfere with its sovereign functions or
authority.

Issue on Appeal and Mexicos Position

[24]

The issue in this appeal is whether, by finding that Mexicos actions
constituted improper interference within the meaning of s. 33(6)(b) of
the
Code
, the Board exercised jurisdiction over Mexico, contrary to
s. 3(1) of the
SIA
.

[25]

Mexico submits that the Board did assume jurisdiction over it. Mexico
contends that the doctrine of state immunity is not limited to instances where
the state is a party to the proceedings and where there is some legal remedy
sought against the state. It argues that the chambers judge failed to recognize
that the doctrine of state immunity precludes a domestic
tribunal from adjudicating the conduct of a foreign state vis‑à‑vis
its own citizens under domestic law regardless of whether a remedy is imposed
on the foreign state for a breach of domestic law. Mexico asserts that the
Boards finding regarding unlawful interference amounts to a finding that
Mexico violated the
Code
and that this is a result barred by the
doctrine of state immunity. It contends further that the Board, in effect, took
jurisdiction over it by indirectly impleading Mexico and making findings that
implicate its legal interests.

Standard of Review

[26]

In an appeal from a judicial review, this Court must first determine
whether the reviewing court selected the correct standard of review and then
whether it correctly applied that standard:
Henthorne v. British Columbia
Ferry Services Inc.
,

2011 BCCA 476 at paras. 73 and 74. As
a result, this Court will for practical purposes be in the same position as it
would be if it were reviewing the decision of the tribunal directly, since no
deference is to be afforded to the reviewing court:
Henthorne
at
para. 79.

[27]

The Boards decisions are subject to the standards of review set out in
s. 58(2) of the
Administrative Tribunals Act
, S.B.C. 2004, c. 45
[
ATA
]. The preferred approach for determining whether a matter falls
within the exclusive jurisdiction of a tribunal and attracts the standard of
patent unreasonableness under s. 58(2)(a), or does not and attracts the
standard of correctness under s. 58(2)(c) is simply to examine whether
the privative clause [in the tribunals enabling statute] covers the matters
in issue:
Kerton v. Workers Compensation Appeal Tribunal
, 2011 BCCA 7
at para. 29. This analysis is required even where a tribunal is
interpreting its home statute, as was the case in
Kerton
.

[28]

Section 139 of the
Code
provides that the Board has
exclusive jurisdiction to decide a question arising under [the] Code. As the
chambers judge correctly held, the scope of state immunity under the
SIA
is a matter that is clearly outside of the Boards exclusive jurisdiction: at
para. 56. Consequently, the standard of correctness applies, pursuant to
s. 58(2)(c) of the
ATA
. This Court must therefore determine whether
the chambers judge was correct to find that the Board itself was correct in its
conclusions as to the scope of state immunity under the
SIA
.

[29]

Insofar as the Boards conclusions relating to the
Code
are
concerned, and in particular, its conclusions regarding the legal character and
consequences of a finding of improper interference under s. 33(6)(b), the chambers
judge correctly found patent unreasonableness to be the applicable standard of
review: at para. 57. These are clearly questions arising under [the] Code.
For this Court, the question then is whether in applying the patent unreasonableness
standard, the chambers judge reached the correct result. Again, no deference is
owed to the court below.

Discussion

[30]

It is necessary at the outset to understand what it is that the Board
did in examining the conduct of Mexico for the purpose of determining whether
its conduct constituted improper interference such that the representation vote
did not disclose the true wishes of the Unions employees. This inquiry is
necessary because it is critical to Mexicos argument that the finding of
improper interference by the Board is effectively a legal declaration that
Mexico violated the
Code
.

[31]

The context in which the issue arises is the Unions unfair labour
practice complaint. That complaint is rooted in ss. 6 and 9 of the
Code
,
which provide in part as follows:

6.   (1) Except
as otherwise provided in section 8, an employer or a person acting on behalf of
an employer must not participate in or interfere with the formation, selection
or administration of a trade union or contribute financial or other support to
it.

...

9.   A person must not use coercion or
intimidation of any kind that could reasonably have the effect of compelling or
inducing a person to become or to refrain from becoming or to continue or cease
to be a member of a trade union.

[32]

These sections are in aid of protecting the fundamental right of
employees enshrined in s. 4 of the
Code
,

which stipulates
that every employee is free to be a member of a trade union and to participate
in its lawful activities. Where the Board concludes that there has been an
unfair labour practice, it may make orders against the person committing the
practice: s. 14. The
Code
requires notice to be given to any person
alleged to have committed an unfair labour practice.

[33]

In this case, the Union complaint was made in the context of the
Employees decertification application governed by s. 33 of the
Code
.
Section 33 allows bargaining rights to be revoked if certain statutory
preconditions are met, including that at least 45% of the employees in the
bargaining unit sign a decertification application. If this occurs, the Board
must order that a representation vote be conducted: s. 33(2). A majority
of the employees casting a ballot in the representation vote must support the
application for decertification: s. 33(4). Section 33(6), however,
confers a discretion on the Board to refrain from cancelling the certification.
That section reads as follows:

33. (6)  If an
application is made under subsection (2), the board may, despite subsections
(2) and (4), cancel or refuse to cancel the certification of a trade union as
bargaining agent for a unit without a representation vote being held, or
without regard to the result of a representation vote, in any case where

(a)  any
employees in the unit are affected by an order under section 14, or

(b)  the board considers that because of
improper interference by any person a representation vote is unlikely to
disclose the true wishes of the employees.

[34]

As the chambers judge noted, the
Code
expressly prohibits unfair
labour practices, which are defined in s. 6.
O
f particular relevance here is s. 6(3)(d),
which  provides that an employer or a person acting on behalf of an employer
must not

(d)  seek by intimidation, by dismissal,
by threat of dismissal or by any other kind of threat, or by the imposition of
a penalty, or by a promise, or by a wage increase, or by altering any other
terms or conditions of employment, to compel or to induce an employee to
refrain from becoming or continuing to be a member or officer or representative
of a trade union[.]

[35]

Unlike a finding that a person has engaged in an unfair labour practice,
which necessarily involves a finding of a breach of the
Code
, a finding
of improper interference for the purpose of s. 33(6)(b) is not a finding
that the
Code
has been violated. That phrase is only referred to in
s. 33(6)(b) and there is no express prohibition against conduct amounting
to improper interference. It seems to me that the purpose of a finding of
improper interference by a person is simply a basis on which the Board can
conclude that the vote does not disclose the true wishes of the employees. No
orders of any kind can be issued against such a person, whose only connection
to the proceeding is the conduct found to constitute improper interference. And
because no orders may issue against them, there is no requirement on the Board
to give the person notice of the proceedings. The finding has no legal effect
and, in my view, does not affect their legal interests.

[36]

The majority of the panel in the Board reconsideration decision under
review observed that [t]he parties who have a direct and legally material
interest in [a decertification application] are those bound by the
certificationthe employees, the employer and the certified trade union: at para. 25.
The majority summarized the Boards jurisdiction under s. 33(6)(b) as
follows:

[29]      Section 33(6) permits
the Board to cancel or to refuse to cancel the Unions certification without
regard to the vote if improper interference is found. A finding of improper
interference under Section 33(6)(b) is not a contravention of the Code:
7‑Eleven
. As such, the Boards remedial authority under Section 133 is not engaged.
That is the case regardless of how the parties or strangers to the proceeding
choose to perceive that conduct or choose to portray it in public forums. The
fact remains that the Board does not have jurisdiction under Section 33(6)(b)
to issue a remedydeclaratory or otherwiseagainst the person who has engaged
in improper interference. The Boards sole mandate under Section 33(6)(b)
is to remedy the consequences of such conduct by refusing to cancel the Unions
certification regardless of the vote.

[37]

This is an accurate statement of the law, and it is certainly not
patently unreasonable. It is in this context that the application of s. 3(1)
of the
SIA
must be assessed.

[38]

I am in substantial agreement with the analysis of s. 3(1)
undertaken by the chambers judge. These principles have also recently been
extensively reviewed by the Court of Appeal in England in
Belhaj v. Straw,
[2014]
EWCA Civ 1394. The analysis of the Court of Appeal is directly pertinent to the
issue before us. In particular, that court distinguishes between the scope of
state immunity and situations in which there is no state immunity but courts nonetheless
decline to consider certain state conduct by applying the related but
independent act of state doctrine, as a form of subject matter immunity.

[39]

In the United Kingdom, as in Canada, state immunity as it existed at
common law is now codified by statute. Section 3(1) provides, as we have
seen:

Except as provided by this Act, a
foreign state is immune from the jurisdiction of any court in Canada.

[40]

This case turns on whether, in making its findings, the Board exercised
jurisdiction over Mexico. None of the exceptions to the immunity referred to in
that section apply in this case.

[41]

At common law, the courts would not directly implead a state as a party
to proceedings, nor would a state be indirectly impleaded. This case does not
give rise to a question of direct impleading  Mexico is not a party. Mexico
argues, however, that it has been indirectly impleaded in the Board proceedings.

[42]

The concept of indirect impleading captures proceedings in which the
state is not a party but in which proceedings are brought in relation to
property in the states ownership, possession, or control: see
Compania
Naviera Vascongado v. S.S. Cristina (The Cristina),
[1938] A.C. 485;
The
Parlement Belge
(1879) 5 P.D. 197.

[43]

Mexico argues that the finding of improper interference is a finding that
it breached the
Code
in respect of which it could claim immunity, as it
did in respect of the unfair labour practices complaint, if it were a party to
the proceeding. It argues that to defend against that finding would,
improperly, require it to waive its immunity. Mexico has been indirectly
impleaded, it argues, because the finding affects Mexicos interest in the
administration of SAWP, passes judgment on the legality of sovereign acts of
Mexico conducted in its own territory, and achieves indirectly what could not
be done directly.

[44]

A similar argument was advanced and rejected in
Belhaj.
Mexico
submits, as was submitted in that case, that the scope of state immunity was
expanded by the House of Lords in
Buttes Gas and Oil Co. v. Hammer (Nos. 2
and 3),
[1982] A.C. 888. The Court of Appeal noted that the decision
in
Buttes
turned on the non-justiciability of the subject matter of the
claims and expressly did not turn on state immunity. As Lord Wilberforce said
in
Buttes
at 926 C-D:

The doctrine of sovereign
immunity does not in my opinion apply since there is no attack, direct or
indirect, upon any property of any of the relevant sovereigns, nor are any of
them impleaded directly or indirectly.

[45]

The Court of Appeal in
Belhaj
noted that cases arise in which no
state is directly or indirectly impleaded, so that no issue of state immunity
arises, but nevertheless courts decline to adjudicate on claims that turn on
the validity of public acts of a foreign state. This is the application of the
act of state doctrine. After referring to cases from other jurisdictions,
including the decision of the chambers judge in this case, the Court of Appeal
observed at para. 39 that [p]roceedings will not be barred on grounds of
state immunity simply because they will require the court to rule on the
legality of the conduct of a foreign state.

[46]

The Court went on to analyze the scope of the concept of indirect
impleading for the purpose of the application of state immunity. In brief, it
recognized that a state may be indirectly impleaded in circumstances where,
although not named as a party, the proceeding, in effect, seeks to affect the
property, rights, interests, or activities of that state, citing Article 6(2)(b)
of the
UN Convention on Jurisdictional Immunities of States and Their
Property
, 2 December 2004 (not yet in force). The Court considered
academic writing, among other sources, approving of the view that the legal
effects engaged should be specifically legal effects, such as the imposition of
a lien or declaration of title, rather than social, economic, or political
effects. Similarly, the relevant state interests should be confined to legal
interests, as opposed to interests in some more general sense:
Belhaj
at para. 45.

[47]

The Court summarized its view of the relationship between state immunity
and act of state in the following passage:

[48]      The principles of state
immunity and act of state as applied in this jurisdiction are clearly linked
and share common rationales. They may both be engaged in a single factual
situation. Nevertheless, they operate in different ways, state immunity by
reference to considerations of direct or indirect impleader and act of state by
reference to the subject matter of the proceedings. Act of state reaches beyond
cases in which states are directly or indirectly impleaded, in the sense
described above, and operates by reference to the subject matter of the claim
rather than the identity of the parties. This is inevitably reflected in the
different detailed rules which have developed in relation to the scope and
operation of the two principles. In this jurisdiction exceptions to immunity
are laid down in the 1978 Act. Limitations on the act of state doctrine, which
are not identical, have now become established at common law. (See, in
particular,
Yukos Capital Sarl v. OJSC Rosneft Oil Co (No.2)
[2014] QB
458.) The extension of state immunity for which the respondents contend
obscures these differences. Such an extension is also unnecessary. Any wider
exemption from jurisdiction extending beyond state immunity in cases of direct
or indirect impleader is addressed in this jurisdiction by the act of state
doctrine and principles of non-justiciability. The extension of state immunity
for which the respondents contend would leave no room for the application of
those principles.

[48]

I respectfully agree with this analysis. In my view, the argument
advanced by Mexico is not a state immunity argument. Rather, to the extent it
has merit, the argument invokes the related but separate principles of the act
of state doctrine. Mexico did not argue act of state as an independent ground
supporting a conclusion that the Board could not inquire into the sovereign
acts of Mexico conducted within its own territory. It has not argued that
proposition on appeal. Rather, its submission is, in substance, that the
principle of indirect impleading should be expanded to incorporate principles
drawn from the act of state doctrine. It submits that that is the proper
meaning to be given to the exercise of jurisdiction by the Board in this case.

[49]

For the reasons already given, I would reject that submission. I do
not agree that the Board exercised jurisdiction over Mexico when it considered
whether Mexicos conduct amounted to improper interference with the employees of
the Union for the purpose of exercising its discretion to refuse to cancel the
Unions certification. The Board made no orders in relation to property in the
ownership, possession, or control of Mexico. It did not affect Mexicos legal
interests. In my view, that conclusion is sufficient to dispose of this appeal.

[50]

This is not a case in which it is necessary to consider the scope or
content of the act of state doctrine. I would say only this: I am not persuaded
that the act of state doctrine has any application to the facts of this case.
The Board did no more than examine Mexicos conduct for the purpose of
exercising its remedial powers under the law of British Columbia, in respect of
the rights of the Employees, the Union, and the Employer in British Columbia.
The Board considered whether certain conduct had occurred, but in doing so, the
Board was not adjudicating its legal validity in Mexico or under international
law, and was not adjudicating whether the conduct breached the
Code.
The
Board was doing no more than vindicating the rights of persons in British
Columbia. I do not see that the act of state doctrine, however articulated, has
any application to the case before us.

[51]

I would dismiss the appeal.

The Honourable Mr. Justice Harris

I
agree:

The Honourable Mr. Justice Groberman

I
agree:

The
Honourable Mr. Justice Willcock


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Albu v. The University of British Columbia,

2015 BCCA 41

Date: 20150203

Docket: CA041595

Between:

Mihaela Albu

Appellant

(Petitioner)

And

The University of
British Columbia, Vancouver Senate

Respondent

(Respondent)

Before:

The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Savage

On appeal from:  An
order of the Supreme Court of British Columbia,
dated February 14, 2014 (
Albu v. The University of British Columbia
,
2014 BCSC 239, Vancouver Docket S134435)

Counsel for the Appellant:

P. T. Busch

Counsel for the Respondent:

D. J. Jordan, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

February 3, 2015

Written Reasons by:

The Honourable Madam Justice MacKenzie

Concurred in by:

The Honourable Madam Justice Garson
The Honourable Mr. Justice Savage

Summary:

Appeal from the dismissal of
a petition for judicial review of a decision by the Universitys Senate
Committee declining to hear an appeal of the petitioners academic standing in
a course in which she committed plagiarism. The petitioner previously had
agreed to withdraw her appeal in a settlement agreement. Held: Appeal
dismissed. The settlement agreement was legally binding. The chambers judge
properly confined the record on judicial review to the record of the
proceedings before the Senate Committee, which does not support the
petitioners allegations of bad faith and improper motive.

Reasons for Judgment of the Honourable
Madam Justice MacKenzie:

[1]

Mihaela Albu appeals the dismissal
of her petition for judicial review of the refusal of the University of British
Columbias Senate Committee on Student Appeals on Academic Standing (the
Senate Committee) to hear her appeal of a failing grade. The Admissions and
Academic Progress Committee of the Faculty of Dentistry (the Faculty)
assigned her the failing grade for a course in the 2007-2008 academic year.

[2]

On judicial review, Ms. Albu
sought orders in the nature of
mandamus
to compel the Senate Committee
to hear her appeal of her academic standing in the course, to compel the
respondent University of British Columbia (UBC) to enforce the decision of
its President to issue a letter of reprimand regarding her academic misconduct
but without further penalty (including reversing the failing grade assigned to
her for the course), and to compel UBC to issue her a clean academic
transcript. Mr. Justice Truscott dismissed her petition for judicial review. On
appeal, she seeks an order granting the relief sought in the court below.

[3]

For the reasons that follow, I
would dismiss the appeal.

Background

[4]

The record of proceedings before
the Senate Committee was enumerated by Mr. Justice Truscott in his reasons
for judgment (2014 BCSC 239) at para. 6.  For convenience, I will set out the
background as follows.

[5]

In the winter semester of 2008,
when Ms. Albu was a student in the Bachelor of Dental Sciences (Dental
Hygiene) program at UBC, an academic judgment was made in grading a paper
submitted by Ms. Albu for a literature review assignment for a course she
was taking  that Ms. Albu committed plagiarism. She was given a failing
grade for the course. The Dean of the Faculty referred the matter to the
Presidents Advisory Committee on Student Discipline (the Presidents Advisory
Committee), which found Ms. Albu had committed academic misconduct by
submitting a plagiarized assignment. This Committee noted Ms. Albu had
admitted her misconduct and she had apologized.

[6]

After receiving and considering
the report from the Presidents Advisory Committee, the President issued
Ms. Albu a letter of reprimand on June 5, 2008.  On August 5, 2008,
Enrolment Services advised Ms. Albu that her application of July 6 for Review
of Assigned Standing had been returned and there was no change to the
previously assigned grade of 0%.  Ms. Albu then initiated an appeal to
the Senate Committee.

[7]

However, on February 10, 2009,
before that appeal was heard, Ms. Albu, represented by counsel, entered
into a settlement agreement, a term of which required the Faculty to allow her
to repeat the plagiarized assignment.  The agreement included these terms:

2.         Ms. Albu will
withdraw her appeal by notifying the Senate Committee on Appeals on Academic
Standing in writing of that fact;

3.         Ms. Albu will
immediately and irrevocably execute a full and final Release of all claims in
favour of the University;

8.         After Ms. Albu
has submitted the Assignment for marking, the Instructor will grade the
Assignment. This Assignment will be treated as a Supplemental Assignment and as
such will be graded on a Pass/Fail basis;

10.       A Fail grade on the
Assignment will result in a failing grade for the course, which will be
recorded as a Supplemental grade of F on the transcript. In accordance with
UBC policy, A student at any level of university study who fails for a second
time (which need not be consecutive) will be required to withdraw from the
University. After a period of at least one year, an appeal for permission to
re-enroll will be considered. Such an appeal will be granted only after the
appeal has been reviewed and approved by the dean of the faculty concerned. A
negative decision by the dean may be appealed to the Senate Admissions
Committee. (UBC Calendar 2008-09, V. Policies and Regulations,
Advancement Regulations, para. 6);

13.       Ms. Albu will
keep confidential and will not disclose to anyone except her legal advisors the
fact that she has made this settlement agreement and the terms of this
settlement agreement except as she may be compelled by law;

14.       The
grade which Ms. Albu receives for the Assignment and the resulting grade
for the course are final (Grades).
Ms. Albu agrees that she will not
pursue any grievance, appeal or any other remedy against the University as a
result of the Grades or for any other reason. Ms. Albu recognizes that
this is a last chance agreement as consideration for allowing her to redo the
Assignment
.

[Emphasis added.]

[8]

Ms. Albu submitted the
assignment on May 14, 2009.  An Associate Dean of the Faculty advised
Ms. Albu by letter dated July 7, 2009, that her supplemental assignment
had been graded and she had been given a failing grade.

[9]

In April 2010, Ms. Albu
commenced a civil action against UBC, a professor in the Faculty, and the
director of the Dental Hygiene program over the finding of plagiarism and her
assigned standing in the course. Counsel for UBC says this action, which is
outstanding, includes allegations of negligence, breach of contract and breach
of fiduciary duty, which are based substantially on Ms. Albus claims that
the Faculty entered the settlement agreement in bad faith and with improper
motive.

[10]

In May 2012, by email,
Ms. Albu sought to continue the appeal of her academic standing in the
course to the Senate Committee. In a letter dated April 29, 2013, she
requested a hearing before the Senate. The Senate Committee, by email dated May
14, 2013, denied her request to initiate an appeal on the basis that the
agreement and release had fully resolved the issues.

[11]

Ms. Albus claims of bad
faith and improper motive were not before the Senate Committee.

The record on judicial review

[12]

At the outset of the proceedings
below, the chambers judge refused Ms. Albus attempts to introduce various
materials that were not part of the record before the Senate Committee.

[13]

Ms. Albu had obtained,
through disclosure and examinations for discovery in the civil action,
information she says demonstrates the Facultys bad faith. She had attempted to
introduce, among other things, extracts from the transcript of an examination
for discovery, emails between Faculty staff disclosed in the civil action, and
materials obtained pursuant to an application under the
Freedom of
Information and Protection of Privacy Act
, R.S.B.C. 1996, c. 165.
Ms. Albu had endeavored to rely on those materials to support her argument
that the letter agreement was not done properly according to the law and in
good faith.

[14]

The chambers judge refused to
consider those materials, acceding to UBCs objections that the materials were
not part of the record of proceedings before the Senate Committee, and
therefore not part of the record to be considered on judicial review. He
decided that, in law, the judicial review had to be based on the actual record
that was before the Senate Committee.

The judicial review

[15]

The chambers judge determined,
subject to Ms. Albus claim the agreement was not legally binding, that the
petition was an abuse of process in that she sought judicial review over
matters she had compromised and settled through the agreement and release, with
the assistance of her counsel, in consideration for the right to repeat the
assignment.

[16]

At the hearing of the petition,
Ms. Albu informed the court that it was she who had asked the Faculty if
she could re-do the assignment. The Faculty agreed, but on the condition that
she withdraw her appeal to the Senate Committee.

[17]

Ms. Albu also told the court
below that she was satisfied and pleased with the paper she submitted for the
repeated assignment.

[18]

The chambers judge noted that Ms.
Albu sought to rely on the fact she has never complied with the term requiring
her to withdraw (in writing) her appeal to the Senate Committee as one reason
why she should be entitled to continue her appeal through judicial review.
Subject to his determination as to whether the agreement was valid and binding
on her, the chambers judge denied Ms. Albus judicial review, saying, The
Court will not countenance a party relying upon their own default to support a right
to judicial review

The agreement and release

[19]

Ms. Albu argued in the court
below that the agreement allowing her to repeat the assignment required
approval by the Senate or board of governors and because it was not so
approved, executed or otherwise authorized in accordance with the
University
Act
, R.S.B.C. 1996, c. 468, the agreement was void, voidable, unenforceable
and illegal. She contended those members of the Faculty who negotiated the
agreement acted without jurisdiction to bind UBC. While she submitted there
were no rules or policies within the Faculty requiring an undergraduate student
to sign an agreement and release, she also said negotiations, drafting the
terms of the agreement, and deciding the execution of the agreement, are part
of the Facultys affairs and business as authorized by s. 40(c) of the
University
Act
. This argument also appeared to form part of her submission that the
settlement agreement was entered into in bad faith and for improper motive on
the part of the Faculty.

[20]

Having cited s. 27 of the
University
Act
as to the powers of the board of governors, s. 37 as to the powers
of the Senate, and ss. 39 and 40 as to the constitution of faculties and
their powers and duties, the chambers judge then said he was satisfied the
Faculty had received the approval of the Senate when its rules were promulgated
and its examiners appointed. He concluded a supplemental examination, as
accorded Ms. Albu under the agreement, is part of the Academic Policies
and Procedures of the Faculty of Dentistry and is stated to be a privilege and
not a right (para. 24). The judge determined the agreement required the
Faculty to allow Ms. Albu to repeat the assignment; in return, she agreed
to immediately and irrevocably execute a full and final release, in favour of
UBC, of all claims. He found that the agreement and release were properly
executed by Ms. Albu, and that, because neither the Senate nor the board
of governors was obliged to do anything by the terms of the agreement, neither
was required to execute the agreement or the release. He concluded the
agreement was solely within the jurisdiction of the Faculty to negotiate with
Ms. Albu.

[21]

The chambers judge considered
other arguments advanced by Ms. Albu, including that the confidentiality
term (term 13 replicated above at para. 7) was wrong and showed bad faith on
the part of the Faculty. At the hearing, Ms. Albu argued this was so
because just drafting this term indicates the fact that faculty did not act in
good faith and requested I withdraw my appeal and trying to keep everything
within its boundaries . The judge responded, I think the university, to put
in this confidential clause, was concerned that if this became a matter of
public knowledge other students who failed may ask for supplemental
examinations.

[22]

Ultimately, the chambers judge
found no merit to the judicial review because the agreement was valid in law
and stood as the resolution of the issues between the parties. He declined to
direct the Senate to reconsider its decision not to permit an appeal by
Ms. Albu.

[23]

Finally, the judge exercised his
discretion not to grant the equitable remedy of
mandamus
as sought
because, having taken the privilege of repeating the assignment but having
failed to withdraw her appeal to the Senate Committee as she had agreed,
Ms. Albu did not come to court with clean hands.

On Appeal

[24]

Ms. Albus contentions on
appeal, as described in her factum, can essentially be reduced to these:

(a)      she did not have a fair hearing because the chambers judge did
not permit her to adduce evidence, described above, discovered after she signed
the agreement and release, and which she says demonstrated malicious behaviour
and bad faith by the Faculty;

(b)      the judge erred in limiting the evidence to the record before
the Senate Committee and by not intervening as
amicus curiae
on her
behalf when she was self-represented;

(c)      the agreement and release were not legally binding and therefore
it is not an abuse of process to seek judicial review;

(d)      the agreement and release were illegal because

(i)       the Faculty acted negligently and in bad faith in entering into
the agreement and release, did not disclose material information to her, and
created a natural injustice by requiring her to waive her rights to appeal her
grade so they could avoid the oversight of their negligence and academic
judgment; and

(ii)      the agreement and release were not within the jurisdiction of
the Faculty, the Faculty was required to obtain the approval of UBC for any
contracts and therefore had no authority to bind UBC, and the Faculty did not
follow the rules and procedures related to supplemental examinations;

(e)      the judge erred in applying the clean hands doctrine to her.

Ms. Albu also asserts the Faculty acted in bad
faith in assigning and assessing the repeated assignment.

[25]

In oral submissions, Ms. Albu
focused largely on her various allegations of bad faith and improper motive,
which she had attempted to pursue without success before the chambers judge.
She referred this Court to material he refused to consider because it was not
part of the record of proceedings before the Senate Committee.

[26]

UBC repeats its argument that if
the agreement and release are legally binding, these allegations, which are in
effect the claims of breach of contract and breach of fiduciary duty that form
the bases of Ms. Albus civil action, are outside the scope of judicial
review.

Fresh Evidence

[27]

Ms. Albu applies to adduce as
fresh evidence certain exhibits attached to her affidavit, sworn May 5, 2014,
to argue, it seems, that the Facultys academic judgment of her repeated
assignment, and an expert report, Dr. Farah Shroffs academic judgment of the
repeated assignment (obtained for the civil action), are contradictory. She
deposes, The UBC Vancouver Senate did not look at how the Faculty of Dentistry
arrived at its academic judgment regarding my repeat assignment 4 and the final
grade for the DHYG 404 course (para. 14). Through other exhibits attached to
her affidavit, Ms. Albu appears to dispute the characterization of the
repeated assignment as a supplemental assignment, and to clarify that she
sought to appeal to the Senate Committee her academic standing in the course,
not the Presidents decision to issue the reprimand letter (as set out by the
chambers judge in his summary of the record of proceedings in para. 6(e) of his
reasons  I note that at the outset of his reasons he refers to her appeal
from the standing assigned to her).

[28]

Ms. Albu also applies to
adduce a chambers decision on document disclosure made in the civil action,
which is new evidence as it was made after the Senate Committee declined, in
May 2013, to hear her appeal.

[29]

In
Golder Associates Ltd. v.
North Coast Wind Energy Corp.
, 2010 BCCA 263, Mr. Justice Chiasson set out
the test for admitting fresh evidence in civil appeals:

[33]      The test for the
admission of fresh evidence was stated in
Palmer v. The Queen
, [1980] 1
S.C.R. 759 at 775:

(1)        The evidence
should generally not be admitted if, by due diligence, it could have been
adduced at trial provided that this general principle will not be applied as
strictly in a criminal case as in civil cases: see
McMartin v. The Queen
[[1964] S.C.R. 484].

(2)        The evidence must
be relevant in the sense that it bears upon a decisive or potentially decisive
issue in the trial.

(3)        The evidence must
be credible in the sense that it is reasonably capable of belief, and

(4)        It must be such
that if believed it could reasonably, when taken with the other evidence
adduced at trial, be expected to have affected the result.

[34]

[35]      This Court in
Spoor
v. Nicholls
, 2001 BCCA 426, confirmed that the
Palmer
criteria apply
in civil cases and observed in para. 16 that in
Palmer
the court said
that the due diligence test should be applied more strictly in civil than in
criminal cases.

[36]      In
Scott v. Scott
,
2006 BCCA 504, Ryan J.A. observed in para. 21:

the nature of an appeal is
to examine the record and determine whether there has been an error of law or a
palpable error of fact: it is not a continuation of a trial at a different
stage. Thus, generally speaking, the need for certainty and finality leaves no
room for the admission of fresh evidence on appeal

[30]

In
Jens v. Jens
, 2008 BCCA
392, at paras. 31-34, Madam Justice Levine explained new evidence is rarely
admitted, but this Court will admit it where the failure to admit would result
in a long-term injustice. In this appeal, however, the chambers decision in the
civil action is not relevant and should not be admitted.

[31]

I conclude Ms. Albus
application does not meet the test for the admission of fresh evidence on
appeal. The fresh evidence with respect to the contradictory academic
judgments, the nature of the repeated assignment, and the subject of her appeal
to the Senate Committee are not determinative of any issue in the judicial
review, which turns on the validity of the agreement, and are not relevant to
that proceeding. I view this application to be another attempt to have this
Court consider material that was not part of the record before the chambers
judge and which he properly refused to consider.

[32]

I would dismiss the application to
adduce fresh evidence.

Analysis

[33]

Ms. Albu largely repeats the
arguments she either unsuccessfully advanced, or attempted to advance, in the
judicial review. She seeks to refer this Court, as she endeavored to refer the
chambers judge, to materials not before the Senate Committee, and therefore not
part of the record on judicial review.

[34]

Ms. Albu says the chambers
judge erred in limiting the evidence on the judicial review to the record
before the Senate Committee. But I agree he was precluded at law from
considering the extraneous material, including (amongst other items) emails
between members of Faculty staff, and excerpts from the transcript of an
examination for discovery in her civil action.

[35]

Ms. Albus submissions
reflect a fundamental misunderstanding of this Courts role in an appeal of a
judicial review decision. That courts perform a supervisory role on judicial
review is well known, as explained by Mr. Justice Bastarache and Mr.
Justice LeBel in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R.
190:

[28]        Judicial review
is the means by which the courts supervise those who exercise statutory powers,
to ensure that they do not overstep their legal authority. The function of
judicial review is therefore to ensure the legality, the reasonableness and the
fairness of the administrative process and its outcomes.

The supervisory role, however, means that judicial
review proceedings are to be conducted on the record:
Actton Transport Ltd.
v. British Columbia (Employment Standards)
, 2010 BCCA 272 at paras. 19-23.

[36]

On judicial review, the reviewing
court generally does not admit evidence that is not part of the record:
SELI
Canada Inc. v. Construction and Specialized Workers Union, Local 1611
,
2011 BCCA 353 at para. 80. This Court clearly explained in
Actton Transport
Ltd.
at para. 23 that the reviewing court usurps the role of the tribunal
where it receives new evidence that was not before the tribunal and conducts a
de
novo
hearing rather than reviewing the tribunals decision based on the
record that was before the tribunal. Such an approach is not appropriate on
judicial review or on an appeal from a judicial review decision.

[37]

The chambers judge reviewed the
Senate Committees decision on the basis of the material before it. Thus, there
was no procedural unfairness in the court below in identifying the record, nor
has Ms. Albu identified any other unfairness in the conduct of the hearing
below.

[38]

Further, as the respondent
accurately says, her affidavits that were before the chambers judge and are now
in her Appeal Book contain various inadmissible statements of conclusion,
argument and hearsay.

[39]

Ms. Albu makes various
submissions about assistance she required as a self-represented litigant in the
proceedings below. From the, albeit brief, extracts of the transcripts of the
proceedings below that Ms. Albu put before us, I consider the chambers
judge was courteous and patient during the proceedings.

[40]

Ms. Albu maintains the
Faculty acted in bad faith in entering into and complying with the agreement
and release, and therefore they should not be enforced. However, the evidence
before the Senate Committee and properly before the chambers judge does not
support the conclusion Ms. Albu advocates before this Court. The chambers
judge concluded the agreement and release were legally binding on
Ms. Albu. She has not identified any reason that would permit this Court
to interfere with that conclusion.

Disposition

[41]

I would not sustain any of
Ms. Albus submissions. I see no merit to this appeal based on the record
of proceedings as properly limited and considered by the chambers judge. I
would dismiss the appeal.

The Honourable Madam Justice MacKenzie

I agree:

The Honourable Madam Justice
Garson

I agree:

The Honourable Mr. Justice
Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Healey v. Chung,

2015 BCCA 38

Date: 20150203

Docket: CA041711

Between:

Douglas Healey

Appellant

(Plaintiff)

And

Sun Im Sunnie
Chung also known as Sun I. Chung

Respondent

(Defendant)

Corrected
Judgment:  The summary was corrected at p. 2 on February 4, 2015.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice D. Smith

On judicial review
from:  An order of the Supreme Court of British Columbia,
dated March 14, 2014 (
Healey v. Chung
, 2014 BCSC 429,
New Westminster Docket No. M98684).

Counsel for the Appellant:

G.R. Cameron

Counsel for the Respondent:

P. Mazzone

Place and Date of Hearing:

Vancouver, British
  Columbia

November 17, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

February 3, 2015

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice D. Smith

Summary:

The appeal is from an award
of damages for injuries sustained when the appellant in a crosswalk with the
light in his favour, was struck by a vehicle driven by the respondent. He
contends the judge erred in receiving as expert reports, consulting reports from
physicians to his doctor disclosed to the defendant in the family physicians
clinical records, in misapprehending aspects of his medical files, in
misapprehending evidence concerning the appellants recollection of the
accident, in misapprehending evidence relating to his employment and loss
thereof, and in considering the issue of mitigation of damages. Held: Appeal
allowed. The two consulting reports in issue which were material to the order
appealed, did not satisfy the requirement for attestation of the reports by the
experts required by R. 11-2, or contain the essential requirements
required by R. 11-6. As such, they were not expert reports for the
purposes of R. 11-6(10) and (11). Further, the complaints of
misapprehension of the medical files, and evidence of the appellants
recollection of the accident, are established. On these two bases, a new trial
is ordered.

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

Mr. Healey appeals from the judgment of $50,652.64 awarded to him
for personal injuries suffered when, as a pedestrian, he was struck by a motor
vehicle driven by the respondent, Ms. Chung.

[2]

Liability was admitted and the only issue at trial was the quantum of
damages. Mr. Healey claimed the accident caused him ongoing physical and
psychological injuries from what he said was a significant incident. Mr. Healey
claimed damages of $485,000 or more for his injuries, including a significant
sum for future loss of income.

[3]

In his reasons for judgment Mr. Justice Ball did not accept Mr. Healeys
view of the gravity of the incident or the injuries he claimed. Further, he
held that Mr. Healey had failed to mitigate his damages.

[4]

Mr. Healey contends that the judges assessment of his credibility
cannot stand for two reasons. First, he says the judges view of his evidence
was heavily influenced by evidence in the form of consulting reports that he
says were wrongly admitted as expert reports. Second, he contends that the
judge misapprehended the evidence in matters relevant to the assessment of his
credibility. Mr. Healey also submits that the judge erred in law in
respect to the onus to prove a failure to mitigate by finding such a failure
absent findings of fact that employment was or would have been available to Mr. Healey.

[5]

The accident occurred on December 4, 2005, at the intersection of
41
st
Avenue and Clarendon Street, in Vancouver, British Columbia. Mr. Healey
was walking southbound across 41
st
Avenue in a marked crosswalk with
a green light in his favour. As he crossed the street he was struck by a
vehicle driven by Ms. Chung.

Admission
of Clinical Records

[6]

Mr. Healeys first complaint is that the judge wrongly admitted
documents found in the clinical records of the family physician (described by
the parties as consult letters) as expert reports.

[7]

The medical evidence and evidence of Mr. Healeys physical capacity
consisted of expert reports from seven expert witnesses: Dr. Kuo, Mr. Healeys
family physician (three reports); Dr. Hershler, a specialist in physical
medicine and rehabilitation (three reports); Dr. OShaughnessy, a psychiatrist;
Dr. Schmidt, a clinical psychologist qualified in neuropsychology; Mr. Worthington-White,
an occupational therapist (two reports); Ms. Landy, a registered nurse
with expertise in rehabilitative nursing; and Dr. Powers, an expert in
vocational rehabilitation.

[8]

Ms. Chung adduced one report from an independent medical examiner, Dr. Schweigel,
an orthopaedic surgeon. In addition, Ms. Chung proffered as evidence the consulting
reports of Dr. To and Dr. Truong, psychiatrists, reporting to Dr. Kuo
following a referral of Mr. Healey. Mr. Healey says these two
documents were wrongly admitted as expert reports. Dr. Tos consulting report
is entitled Mental Health Initial Assessment  Consult and refers to a
psychiatric assessment, but the doctors qualifications are not revealed in
the report, nor is it signed. Dr. Truongs consulting report is entitled Psychiatric
Assessment and refers to the doctor as a psychiatrist, although it does not
describe more fully the doctors qualifications. It is signed.

[9]

The two contested documents were part of the clinical file of Dr. Kuo,
and were properly disclosed to Ms. Chung. Prior to trial, counsel for Ms. Chung
advised counsel for Mr. Healey that she intended to rely on these
documents as expert reports. Counsel for Mr. Healey did not respond to the
letter, being of the view that the documents were not expert reports within the
meaning of R. 11-6 of the
Supreme Court Civil Rules
and that the
law therefore did not require him to provide notice of his objection unless and
until they were tendered at trial.

[10]

When the two documents were tendered at trial, counsel for Mr. Healey
objected on the basis they were not admissible opinion evidence, in form or
content. Counsel for Ms. Chung offered to produce the doctors for
cross-examination, although they were never called.

[11]

The judge ruled that the two documents met the admissibility requirements
of the
Supreme Court Civil Rules
, saying:

[8]        In the case before me I am obliged in the circumstances
to look at Rule 11-6, and particularly Sub-Rule 1, where the requirements for
an experts report [are] discussed. The rules are not to be taken out of
context. In the context of this case, it is very clear that Dr. Kuo, who
was the treating physician of Mr. Healey, the plaintiff, was well aware of
the location, area of expertise, address, name, qualifications of the persons
to whom she sent Mr. Healey because these reports resulted from her
sending Mr. Healey to both doctors.

[10]      As a result, we have a document which in these
circumstances the expert's name, address, and area of expertise, with his
qualifications, employment and educational experience are well known. The
instructions are simple. The nature of the opinion sought and the issues are
set out. The experts opinion is there on the issues and I am satisfied that
the experts opinion contains the required factual underpinning set out in
11-6(1)(f).

[18]      In the circumstances, I
am satisfied that while it is not perfect compliance with the rules, it is
certainly sufficient compliance in the circumstances where the parties knew so
well who the experts were and, therefore, the documents will be treated as
expert reports in the normal way. I will therefore admit the document signed by
Agnes To and the document prepared by Dr. Truong to which I have referred.

[12]

Rule 11-6 of the
Supreme Court Civil Rules
sets out the
requirements for tendering an expert report:

(1)   An
expert's report that is to be tendered as evidence at the trial must be signed
by the expert, must include the certification required under Rule 11-2 (2) and
must set out the following:

(a) the expert's name, address and
area of expertise;

(b) the expert's qualifications and
employment and educational experience in his or her area of expertise;

(c) the instructions provided to
the expert in relation to the proceeding;

(d) the nature of the opinion being
sought and the issues in the proceeding to which the opinion relates;

(e) the expert's opinion respecting
those issues;

(f) the expert's reasons for his or
her opinion, including

(i)  a description of the factual
assumptions on which the opinion is based,

(ii)  a description of any research
conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the
expert in forming the opinion.

[13]

Rule 11-2 referred to in R. 11-6(1) provides:

(1)   In
giving an opinion to the court, an expert appointed under this Part by one or
more parties or by the court has a duty to assist the court and is not to be an
advocate for any party.

(2)   If an
expert is appointed under this Part by one or more parties or by the court, the
expert must, in any report he or she prepares under this Part, certify that he
or she

(a) is aware of the duty referred
to in subrule (1),

(b) has made the report in
conformity with that duty, and

(c) will, if called on to give oral or written testimony, give
that testimony in conformity with that duty.

[14]

Rules 11-6(10) and (11) deal with notice of objection to an expert
report in these terms:

(10)      A party who receives an expert report or
supplementary report under this Part must, on the earlier of the date of the
trial management conference and the date that is 21 days before the scheduled
trial date, serve on every party of record a notice of any objection to the
admissibility of the expert's evidence that the party receiving the report or
supplementary report intends to raise at trial.

(11)      Unless the court
otherwise orders, if reasonable notice of an objection could have been given
under subrule (10), the objection must not be permitted at trial if that notice
was not given.

[15]

Mr. Healey contends that the documents of Dr. To and Dr. Truong
failed to set out the qualifications and educational experience of the doctors,
the instructions provided to the doctors, the nature of the opinions sought
and, significantly, most of the items required by R. 11-6(1)(f).

[16]

I will start with R. 11-2. While all of the authors referred to in
para. 7 above attested as required by that Rule (Dr. Kuo in the last of her
three reports), neither of the impugned consulting reports contains a
commitment to the standards of R. 11-2, or evinces the authors awareness that
the documents would be tendered as expert reports. It is plain the two
consulting reports were simply in response to Dr. Kuos referrals of
Mr. Healey in the course of treatment. As such, while opinion, they do not
meet the requirements of R. 11-2 in any respect.

[17]

It is plain, also, that the documents do not comply with R. 11-6(1).
Indeed, I read the judges ruling on this issue as recognizing that they do not.
Yet he held that there was sufficient compliance because the parties knew so
well who the experts were. In particular, the judge referred to Dr. Kuos
knowledge of the qualifications of Dr. To and Dr. Truong. In my
respectful view, referral by a family doctor to a physician with specialized
knowledge does not equate to knowledge by the patient of the specific information
R. 11-6(1) requires in the expert report. Apart from the obvious fact that
the family physician is not naturally privy to the knowledge, education, or experience
of another physician, whatever is known to the family physician does not become
the patients knowledge unless the doctor communicates that knowledge to the
patient. More importantly, Dr. Kuos knowledge and comfort with the
clinical expertise of Dr. To and Dr. Truong is of little assistance
to the court seeking to determine the weight to be accorded various pieces of
evidence, including not only the reports those physicians authored but also the
evidence from other physicians.

[18]

Nor is there adequate recitation in the documents authored by Dr. To
and Dr. Truong of the bases for the opinions expressed. For example, Dr. To
states [Mr. Healey] is very selective and inconsistent when he tells me
what happens from that time on and [i]t seems that he has different
interaction among the different health professionals who have been involved in
his care, but she does not describe the documents or research conducted that
led to those opinions (R. 11-6(1)(f)), thereby to permit the court to assess
the validity of the statements.

[19]

It is well established that clinical consulting reports, without more, may
not be admitted for the validity of opinions expressed in them. In
Mazur v.
Lucas
, 2010 BCCA 473, 325 D.L.R. (4th) 385, this court observed:

[42]      New Rule 11-6 expands
on what an expert was required to state under old Rule 40A, but does not alter
the general principle that it is essential for the trier of fact to know the
basis of an expert opinion so that the opinion can be evaluated. The Rule has a
dual purpose. The second purpose is to allow the opposing party to know the
basis of the experts opinion so that they or their counsel can properly
prepare for, and conduct, cross-examination of the expert, and if appropriate,
secure a responsive expert opinion. Thus, the result of these reasons would be
the same if this case had arisen under the new Rules. There is nothing in these
Rules touching directly on the question of the admissibility of hearsay
evidence in expert reports.

[20]

While there is, perhaps, room for some latitude in determining whether a
document meets the requirements of the Rules, for example as to including the
address and expertise where those are capable of easy determination based upon
the information in the document, the essential components of qualifications,
education, experience, information and assumptions on which the opinion is
based, the instructions given, and the research, must be included to justify
receipt of the report as an exception to the hearsay rule. This conclusion is
consistent with authorities addressing the admissibility of opinion or consulting
reports included in clinical records:
Seaman v. Crook
, 2003 BCSC 464, 14
B.C.L.R. (4th) 132;
Cunningham v. Slubowski
, 2003 BCSC 1904; and
F.(K.E.)
v. Daoust
(1995), 3 B.C.L.R. (3d) 128, 34 C.P.C. (3d) 393 (C.A.). In
F.(K.E.)
,
Mr. Justice Hutcheon said, in relation to R. 40A of the
Rules of
Court
, which was less demanding in the content of an admissible expert
report than current R. 11-6(1):

[13]      I can only say that what occurred was most
unsatisfactory. The admissibility into evidence of the written reports of
experts is an exception to the usual rule that witnesses be examined and
cross-examined in open court. The exception was introduced into this Province
in 1976 by way of an amendment to the
Evidence Act
. Certain safeguards
were and are provided including the delivery of the report some days before
trial (now at least 60 days) and a statement of the qualifications of the
expert. The safeguards did not operate in this case.

[15]      Other than the information on her letterhead we
know nothing of the qualifications of Dr. Sivertz. No order was made to
dispense with the requirement of Rule 40A(5)(b).

[20]      Whatever the
explanation, I am of the view that the plaintiff did not consent to the
admissibility of Dr. Sivertzs report under the provisions of Rule 40A. I
am further of the view that in the circumstances of this case the report ought
not to have been admitted as an opinion on the vital question of causation.

[21]

It is true, as the respondent contends, that
Seaman
and
F.(K.E.)
are cases in which the opinion sought to be adduced was found in clinical
records that were voluminous, but I do not consider that circumstance detracts
from the principle that a clinical record containing an opinion, such as these
consulting reports, must substantially comply with the requirements of the
Rules in order to attract the exception to the usual rule for examination of
witnesses spoken of by Mr. Justice Hutcheon.

[22]

The respondent contends that she gave notice to Mr. Healey of her
intention to use the letters, that Dr. Kuo knew of the qualifications of
the two doctors, and that other deficiencies were minor. She says Mr. Healey
was obliged to express his objections as required by R. 11-6(10) and (11).

[23]

Forthrightness between counsel is favoured and is to be expected in
litigation. Yet I cannot say there was anything to which we have been referred
that put the positive legal duty on Mr. Healey to object under those Rules
for the reason that the consulting reports sent to Dr. Kuo and disclosed
as part of her clinical records were simply not expert reports as regulated
by the Rules. While they may be professional opinions from one doctor to
another in the course of treatment, the impugned documents do not comply with
R. 11-2; I do not consider they carry the basic hallmark of an expert
report, being an opinion intended by the author, at some point, to be
presented for the assistance of the court. Significantly, they contain none of
the information that is essential to qualification of the author as an expert,
nor the information reviewed by the author by which the court may assess the
cogency of the opinion.

[24]

As I do not consider that these clinical records can be considered to be
expert reports as that term is used in the Rules, entitled to the privileged
treatment for receipt of hearsay evidence discussed by Mr. Justice
Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of
objection.

[25]

In the alternative to the two documents coming within R. 11-6, Ms. Chung
says the judge could have exercised his discretion and admitted the documents
as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to
receive opinion evidence that is not included in an expert report:

(1)
Unless
the court otherwise orders
, opinion evidence of an expert, other than an
expert appointed by the court under Rule 11-5, must not be tendered at trial
unless

(a) that evidence is included in a
report of that expert that has been prepared and served in accordance with Rule
11-6, and

(b) any supplementary reports
required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served
in accordance with Rule 11-6 (5) to (7).

(6)
At
trial, the court may allow an expert to provide evidence, on terms and
conditions, if any, even though one or more of the requirements of this Part
have not been complied with
, if

(a) facts have come to the
knowledge of one or more of the parties and those facts could not, with due
diligence, have been learned in time to be included in a report or
supplementary report and served within the time required by this Part,

(b) the
non-compliance is unlikely to cause prejudice

(i)    by
reason of an inability to prepare for cross-examination, or

(ii)   by
depriving the party against whom the evidence is tendered of a reasonable
opportunity to tender evidence in response, or

(c) the
interests of justice require it.

[Emphasis
added.]

[26]

Ms. Chung does not contend the judge exercised his discretion under
R. 11-7(1). Her approach is consistent with the record that shows the
judge was not asked to exercise his discretion, and it is consistent with Ms. Chungs
submission at trial which approached the question as one of compliance with
R. 11-6. We are invited, however, to approach these documents as admissible
in the exercise of discretion.

[27]

I do not consider that this is an appropriate case for us to engage for
the first time in a full analysis of discretion, so as to draw our own
conclusions. At trial the judge did not consider his R. 11-7 discretion
and accordingly the possibility of exercising discretion is without his
expansion. In
XY, LLC v. Zhu
, 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam
Justice Newbury for the Court adopted this description from
Perry v. Vargas
,
2012 BCSC 1537 at para. 22:

In my view the discretion
provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate
caution, and in a disciplined way given the express requirements contained in
Rules 11-6 and 11-7. That is, the interests of justice are not a reason to
simply excuse or ignore the requirements of the other Rules. There must be some
compelling analysis why the interests of justice require in a particular case
the extraordinary step of abrogating the other requirements of the
Supreme
Court Civil Rules
. None was provided.

[28]

Adopting that approach, in my view this is not a case for us to exercise
the discretion that was available to the judge under R. 11-7.  There was ample
medical evidence before the court, absent the opinions from these documents, to
guide the trial judge in findings of fact. Further, it was open to the
defendant to develop her own body of medical opinion and to advance it in
proper form, including as to the required description of qualifications and
experience and listing of opinion sought and matters considered. I see no
compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6
in this case. To do so, in my view, would admit into evidence opinions that
were not crafted for that purpose and that are without the necessary
information to permit consideration of their substance and effect in the
context of the issues before the court.

[29]

Last, Ms. Chung contends that the two documents, in any event, were
inconsequential in the judges reasons, and thus the admission of these
documents had little impact on the outcome of the case.

[30]

One of the issues at trial was the assertion by Mr. Healey that he
suffered from depression caused by the accident. This allegation bore upon the
assessment of damages. To support this allegation was an expert report from Dr. OShaughnessy.
Based upon the medical records and his interview with Mr. Healey, Dr. OShaughnessy
diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment
Disorder with depressed mood. Yet the judge rejected all allegations of
depression and instead relied upon the two consulting reports, saying:

[58]      Mr. Healey stated
that he suffered from depression because of the accident. Depression was not reported
in his post-accident symptomatology until 2008. Dr. Kuos records do show
that in 2003 she concluded that Mr. Healey had symptoms consistent with
depression. This reporting, however, preceded the accident, and according to
the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009
and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no
symptoms met the criteria for post-traumatic stress disorder.

[31]

I would first observe that Dr. Truongs report cryptically states Axis
1: Adjustment d/o with depressive symptoms  in remission and by so saying Dr. Truongs
report appears to be inconsistent with the judges statement: according to the
psychiatric specialists [Dr. To and Dr. Truong] no evidence supported
any Axis 1 diagnosis. Perhaps this exemplifies the effect of non-compliance
with the requirements for expert reports, as the judge drew from the report a
categorical absence of any Axis 1 diagnosis which appears to be inconsistent
with Dr. Truongs report. Setting that discrepancy between the judges
assertion and the notation in Dr. Truongs report aside, it is clear from
the judges para. 58 that he put weight on the consulting reports and drew
conclusions from them adverse to Mr. Healey. In other words, they were
consequential in the judges reasoning; one cannot say the reports had little
bearing on the outcome, in my view.

Errors
of Fact

[32]

Mr. Healey also complains of several factual matters. The judge
rejected Mr. Healeys evidence, saying:

[2]         I reject the bulk of the plaintiffs evidence
regarding the nature of the accident and the injuries he claims to have
sustained. He was not a credible witness. The plaintiffs almost complete lack
of credibility made determining what actual injuries occurred during the
pedestrian-vehicle accident quite complicated.

[3]        Many profound
differences exist between the facts of the accident as I found them and the
factual assumptions that many of the medical and other experts who have
proffered opinions made (these differences seriously question the evidentiary
value of those reports).

[33]

Mr. Healey says that this conclusion is fatally flawed because the
judge misapprehended evidence, including evidence material to his credibility.
He focuses on three areas of misapprehension of the evidence: his reporting of
symptoms to doctors as understood by the judge; the mechanics of the accident; and
his return to work. I need only address the first two of these complaints as
they are sufficient, in my view, to amount to palpable and overriding error.
Thus I do not address the more complex complaint as to the judges treatment of
the evidence concerning Mr. Healeys return to work.

[34]

In my respectful view, the judge overlooked and misapprehended evidence materially
bearing on the credibility assessment, thus fatally undermining the judgment.

[35]

As to the evidence relating to Mr. Healeys reports of symptoms,
the judge found:

[58]      Mr. Healey stated that he suffered from
depression
because of the accident. Depression was not reported in his post-accident
symptomatology
until 2008
. Dr. Kuos records do show that in 2003
she concluded that Mr. Healey had symptoms consistent with depression.
This reporting, however, preceded the accident, and according to the
psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and
2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms
met the criteria for post-traumatic stress disorder.

[67]      Dr. Schweigel, who conducted an independent
medical legal examination of the plaintiff, confirmed that, apart from
complaints
of chest pain
related to coughing during a viral illness, chest pain was
not complained of
until summer 2007
. In other words, it was too far away
in time to be associated with the accident.

[87]      With a single exception much later in the course of
treatment by Dr. Kuo,
none of the
medical legal reports or
clinical
records
presented by Dr. Kuo or any of the locums who dealt with Mr. Healeys
case
mention vomiting
.

[88]      The law is clear that the failure to report a
single symptom to a doctor will not itself become a basis for a negative
credibility finding. In this case, one of the ongoing problems, as noted above
regarding complaints about the nature of the accident or with symptoms in the
ribs or chest, is that erroneous facts become the diagnostic basis for an
expert doctor to connect a specific symptom with a specific injury. Here, no
expert report connects vomiting with any injury caused by the accident.

[Emphasis
added.]

[36]

Mr. Healey contends, correctly in my view, that these passages
reflect a misapprehension of evidence as to the first reporting of depression,
vomiting and chest pain. Rather than the first report of depression being 2008,
Dr. Kuos report reveals that Dr. Kuo addressed the potential issue
of medicine and counselling for post-traumatic stress disorder on
December 12, 2005, eight days after the accident. Dr. Kuo also administered
the Beck Depression Scale and discussed antidepressant medication with Mr. Healey
on August 31, 2006. He gave Mr. Healey samples of an antidepressant
on October 13, 2006, all within one year of the accident.

[37]

So too, the judges reference to a failure to report vomiting to doctors
appears to overlook evidence concerning stomach ailments found in Dr. Kuos
reports, first that a month after the accident Mr. Healey was advised to take
Advil rather than Voltarin because Voltarin often gives stomach upset and second
that in June 2006 Mr. Healey was diagnosed with gastritis and reflux most
likely due to use of anti-inflammatories to treat the on-going pain. And the
clinical records of Dr. Posen, a naturopathic doctor, note on August 8,
2006, that Mr. Healey reported episodes of nausea and vomiting.

[38]

Dr. Kuos reports also note that contrary to the judges view that
there was no complaint of chest pain until the summer of 2007, on the
examination the day after the accident Mr. Healey reported chest pain.

[39]

These three symptoms selected by the judge for comment significantly
bear upon the foundation for the judges findings of credibility. On my reading
of his reasons, the judge used the evidence in respect to these three symptoms
to explain his rejection of much of the medical evidence advanced by Mr. Healey.
They are, thus, material and bear upon the resulting order.

[40]

Mr. Healey also is highly critical of the judge in his view of the
mechanics of the accident. The judge said:

[7]        Mr. Eng, who was a driver in the accidents
immediate vicinity, was the sole witness who saw the accident, and he testified
at trial. He said Mr. Healey recognized he was going to be struck by a
vehicle because Mr. Healey turned toward the vehicle putting both hands on
the vehicles hood and pushing away from the vehicle.

[8]        According to Mr. Eng, Mr. Healeys body
ended up on the road by the drivers side door of Mr. Engs vehicle.

[9]        Mr. Eng said the Chung vehicle was not
speeding but did not stop for Mr. Healey. He said Mr. Healey went
maybe five to eight feet in the air and landed about 10 feet from where he was
struck.

[12]      Mr. Eng was an independent
witness and presented his evidence in a forthright and credible manner. I
accept Mr. Engs version of the events of the accident as correct.

[41]

Referring to Mr. Healey in relation to the accident, the judge
said:

[17]      Mr. Healey used
far more dramatic terms than Mr. Eng to describe the accident  especially
to medical practitioners.

[42]

After discussing references in the medical reports to Mr. Healey
saying he was told he had been flung 30 to 40 feet forward in the accident, the
judge concluded with a minimal view of the accident:

[35]      As previously noted, I accept Mr. Engs
evidence as to the events of the accident. He was in a uniquely immediate
position to see the accident from a stationary position. He was not distracted,
and nothing blocked or reduced his vision. I accept his description of the
accident and that Mr. Healey landed approximately 10 feet from the
location where he pushed himself away from the Chung vehicle. While he gave no
estimate of the actual speed the Chung vehicle was travelling, I also accept
the evidence of Mr. Eng that the Chung vehicle was not speeding.

[36]      The immutable laws of physics inform my analysis:
they dictate that the force necessary to cause an adult body struck by a motor
vehicle to fly 20 feet in the air and 40 feet from impact to landing is far
more significant than the force necessary to move an adult body pushing against
a vehicles hood to move 10 feet from impact to landing.

[37]      Moreover, and perhaps more importantly, the
immediate deceleration landing in contact with the hard asphalt surface of 41st
Avenue following a 40 foot flight would be expected to cause injury well beyond
minor contusions.

[38]      I reject any suggestion
that Mr. Healey flew 20 or 40 feet to a height of 15 or 20 feet from
impact to place of rest. The evidence does not support that submission.

[43]

Later in the reasons for judgment, the judge directly attributed to Mr. Healey
a version of the accident that was not true. He said:

[161]    His story is at odds with the evidence of the
accident, and he reported a variety of stories, inconsistent circumstances,
and symptoms to the variety of medical practitioners whose expert reports were
presented at trial.

[162]    This trials only issue
was the nature and extent of accident and its effect on the plaintiff. I find
that his evidence was fabricated.

[44]

The story of the accident, and the nature and extent of the accident
attributed to Mr. Healey in these paragraphs appears to be the one
rejected, that is, of being flung 30 to 40 feet. Yet Mr. Healey never
professed to recall the details of the accident, and attributed his knowledge
of the event to what he was told by others.

[45]

Reading the reasons as a whole, then, it appears to me that the judge,
in the end analysis, has factored into his assessment of Mr. Healey, as if
it was Mr. Healeys own recollection of the accident, the story of Mr. Healey
flying 30 to 40 feet.

[46]

It was certainly open to the judge to accept the independent witnesss
account and it was open to say the medical expert opinions were unreliable to
the extent they relied on the greater travel distance to support the physical
injuries alleged at trial. However, it was not open, given Mr. Healeys
evidence of the source of his version of the accident, to discount Mr. Healeys
reports to doctors as exaggeration because of his account of the accident
unless the judge concluded Mr. Healey was not so informed, a finding that
the judge did not make and an issue he did not address. Nor, in my view, was it
open to attribute to Mr. Healey a story of the accident to which he
professed no independent recollection.

[47]

I am mindful of the deference this court must accord a judges findings
of credibility. However, where evidence is misapprehended that bears upon
credibility in a way that is material to the outcome, the basis for this
courts interference is established. In this case, the finding against the
appellants credibility pervades the judges rejection of his claim for greater
damages. I consider that in the area of the three symptoms, and Mr. Healeys
lack of independent recollection of the accident, the judges comments fatally
undermine his finding of credibility of Mr. Healey and bear upon the
reliability of the expert reports.

Conclusion

[48]

In my respectful view, both the error in admitting the consulting reports
as expert reports and the misapprehensions of evidence I have discussed were
material to the judgment. I conclude the appeal must be allowed. Accordingly,
as this matter should be returned to the trial court for a new trial, I see no
need to address mitigation of damages or the assertions by Mr. Healey challenging
the findings of fact relating to his employment.

[49]

I would allow the appeal, set aside the order, and remit the case to the
trial court for a new trial.

The
Honourable Madam Justice Saunders

I AGREE:

The Honourable Madam Justice
Kirkpatrick

I AGREE:

The Honourable Madam Justice
D. Smith


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McKenzie v. McKenzie,

2015 BCCA 42

Date: 20150204

Docket: CA040937

Between:

James Alexander
McKenzie

Appellant

(Claimant)

And

Melanie Louise
McKenzie

Respondent

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson

Supplementary Reasons
to
McKenzie v. McKenzie
, 2014 BCCA 381

Counsel for the Appellant:

R.S. Gill

N.J. Reid

Counsel for the Respondent:

J.A. Rose, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

February 5-6, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

October 8, 2014

Written Submissions Received:

January 20, 2015

Date of Supplementary Judgment:

February 4, 2015

Supplementary Reasons of the Court:

Summary:

Application
to re-open the appeal to reconsider the disposition of costs at trial.
Application dismissed.

Supplementary
Reasons for Judgment of the Court:

[1]

Following release of our decision on this appeal:  2014 BCCA 381, counsel
for the appellant applied for an order that the appeal be re-opened for the
purpose of addressing the award of costs made at trial. The respondent had been
awarded her costs at the trial. On appeal, we did not disturb the trial judges
award of costs.

[2]

On this application to re-open the appeal, the appellant seeks an order
that we remit the question of costs to the trial judge. His main basis for
saying so is that he considers he achieved substantial success on appeal. In
our view, the respondent remains substantially successful as compared to the
position taken by the appellant at trial. This is not one of those exceptional
cases in which we should re-open the appeal for further argument. The
application to re-open the appeal is dismissed.

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Groberman

The Honourable Madam
Justice Garson