COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Brown v. Goodacre,

2020 BCCA 26

Date: 20200123

Docket: CA45516

Between:

Christopher Walter
Brown

Respondent

(Plaintiff)

And

Nicole Goodacre

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Fisher

On appeal from:  An
order of the Supreme Court of British Columbia, dated
July 19, 2018 (
Brown v. Goodacre
, Victoria Docket 134458).

Counsel for the Appellant:

M.J. Hargreaves

Counsel for the Respondent:

J.A.S. Legh

Place and Date of Hearing:

Victoria, British
  Columbia

October 10, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2020

Written Reasons by:

The Honourable Mr. Justice Hunter

Concurred in by:

The Honourable Mr. Justice Harris

The Honourable Madam Justice Fisher

Summary:

The appellant seeks a new
trial based on improper statements to the jury by plaintiffs counsel at trial.
The statements inappropriately personalized the case and expressed personal
opinions of counsel. No objection was made at the time by defence counsel and
the trial judge on his own motion cautioned the jury in respect of the
statements. Held: Appeal dismissed. In light of the failure to object by
defence counsel and the judges caution to the jury, appellate intervention is
not warranted.

Reasons for Judgment of the Honourable
Mr. Justice Hunter:

[1]

In 2013, the respondent was injured when the pick-up truck he was
driving was struck from the rear by a vehicle owned and operated by the
appellant. The matter proceeded to trial before a judge and jury and, on July
19, 2018, the jury awarded damages totalling $847,000. The appellant appeals
this award based on a submission that counsel for the respondent misconducted
himself in the opening statement and closing submissions to the jury to such an
extent that the trial was rendered unfair.

[2]

The position of the appellant is that in his addresses to the jury,
plaintiffs counsel personalized the case and expressed personal opinions to
the jury to such an extent that the trial process was unfair. The appellant
acknowledges that the trial judge did instruct the jury to caution them about
counsel personalizing the case, but says that the corrective instruction was
inadequate to ensure trial fairness. The appellant also acknowledges that
defence counsel made only limited objections to the impugned submissions and
advised the trial judge that he was content with the contents of the charge.
Nevertheless, the appellant submits that this case falls into the category of
exceptional circumstances which merit a new trial.

[3]

I agree that the submissions of plaintiffs counsel inappropriately
personalized the case on several occasions and went beyond the proper role of
counsel in addressing a jury. However in my opinion, the corrective instruction
of the trial judge, when considered in light of the failure of defence counsel
to object to most of the conduct that is now impugned or to request a mistrial,
was sufficient to overcome the potentially prejudicial effect of counsels
submissions. For the reasons that follow, I would dismiss the appeal.

Issue on Appeal

[4]

The sole issue on appeal as framed by the appellant is whether counsel
for the plaintiff misconducted himself in the opening statement to the jury and
the closing submissions to the jury, to such an extent that the trial was
rendered unfair, notwithstanding the directions of the trial judge, with the
result that the verdict pronounced by the jury should be set aside and a new
trial ordered.

[5]

The statements to the jury that the appellant says were improper fell
into four categories:

(i)       personalizing the case by
bringing himself into the opening statement and closing submissions;

(ii)      giving his personal
opinion on the issues, including putting his personal stamp of approval on the
merits of his clients case;

(iii)      giving engineering
evidence in the guise of a common sense observation; and

(iv)     in one case, quoting a
statement from a medical report that was not in evidence at trial.

[6]

The respondents position is that most of the contested submissions were
appropriate and those that were objectionable were appropriately addressed by
the trial judge with correcting instructions. The respondent further submits
that if defence counsel considered that the statements of plaintiffs counsel,
either individually or cumulatively, affected the fairness of the trial,
defence counsel had a duty to object during the trial so that the jury might be
properly instructed, a mistrial declared, or the jury struck.

[7]

In reviewing the arguments of the parties, I will refer to the trial
counsel as plaintiffs counsel and defence counsel, and to the appellant and
respondent when I am referring to the positions of the parties on appeal.

Legal framework

[8]

Before dealing with specific issues raised by the appellant, I propose
to review the legal principles applicable to counsels statements to a jury
during an opening statement and closing submissions.

[9]

It is well-settled that in an opening statement, counsel must not
express personal opinions about the merits of the case or engage in
inflammatory comments designed to appeal solely to the emotions of the jury.
The opening is not argument, and should not be delivered in the same manner as
closing submissions, for which counsel have greater latitude:
McBryde v.
Womack
, 2013 BCCA 260 at para. 44.

[10]

The leading case in this jurisdiction on the proper scope of an opening
statement is
Brophy v. Hutchinson
, 2003 BCCA 21. Chief Justice Finch
described the general parameters of a proper opening statement in these terms:

[41]      In an opening
statement, counsel may not give his own personal opinion of the case. Before
any evidence is given he may not mention facts which require proof, which
cannot be proven by evidence from his own witnesses, or which he expects to
elicit only on cross-examination. He may not mention matters that are
irrelevant to the case. He must not make prejudicial remarks tending to arouse
hostility, or statements that appeal to the jurors emotions, rather than their
reason. It is improper to comment directly on the credibility of witnesses. The
opening is not argument, so the use of rhetoric, sarcasm, derision and the like
is impermissible

[11]

Similar comments were made by Justice Cronk for the Ontario Court of
Appeal in
Brochu v. Pond
(2002), 62 O.R. (3d) 722, in a passage cited
with approval by this Court in
Lawson v. McGill and McRae Equipment Corp.
,
2004 BCCA 68 at para. 38, and again in
Cleeve

v. Gregerson
,
2009 BCCA 2 at para. 48:

[15]      Some restrictions apply
to both opening and closing addresses. For example, the expression by counsel
of personal opinions, beliefs or feelings regarding the merits of a case has no
place in either an opening or a closing address to a jury. That restraint is
designed to prevent lawyers from putting their own credibility and reputations
in issue, and to avoid any indirect invitation to a jury to decide a case based
on information or opinion not established in the evidence.

[12]

Counsel is afforded greater scope in the closing address to the jury, so
long as the submissions made to the jury are not so prejudicial as to cause an
injustice:
Cleeve
at para. 49, citing
Brochu
at para. 17.
For example, it is not improper in a closing submission to appeal to the
emotions of a jury, provided the comments do not undermine the fundamental
requirement that the decision of the jury be based on evidence, not sympathy.

[13]

Trial judges have a wide discretion to control opening addresses and
closing submissions. Where objection is made to a jury address as exceeding
permissible limits, the trial judge as a matter of discretion may give a cautionary
instruction to the jury, or in a more serious case strike the jury and conduct
the trial by judge alone, or declare a mistrial:
Brochu
at para. 24.
Even where several errors have been made by counsel, a timely instruction to
the jury concerning the issues of concern may be sufficient to prevent a
substantial wrong:
Cleeve
at para. 45.

[14]

Failure of counsel to object in a timely way to an improper jury address
is a significant consideration in deciding whether to order a new trial:
Brophy
at para. 50. Chief Justice Finch explained the rationale for treating the
failure to object as a waiver of the right to object at an appellate level
except in exceptional circumstances, in these terms:

[52]      In other words, the
trial judge is in the best position to observe the effect of counsels
statements on the jurors, and to fashion an appropriate remedy for any
transgressions. Where no objection is taken, the assumption is that the effect of
any transgression could not have been seriously misleading or unfair and there
would be no reason for suspecting injustice.

[15]

In
Brophy
, this Court held that there were two significant errors
that impacted the fairness of the trial and required that a new trial be
conducted. One was improper statements to the jury by defence counsel. The
other was an error by the trial judge in permitting defence counsel to give an
opening statement to the jury immediately after plaintiffs counsels opening,
although consent for that procedure had not been obtained. A new trial was
ordered notwithstanding the failure of plaintiffs counsel to object to either
of these deficiencies.

[16]

The appellant relies on the fact that a new trial was ordered in
Brophy
,
and also on the comments of Justice Thackray writing for the majority in
de
Araujo v. Read
, 2004 BCCA 267. In
de Araujo
, defence counsel did ask
the judge to caution the jury about statements made by plaintiffs counsel to
the jury, but the judge declined to do so, stating that the language was a bit
over the top, but Im not going to say anything [to the jury]: paras. 4546.
Justice Thackray concluded that the language was excessive and had to be dealt
with: para. 47.

[17]

In the case at bar, the situation is reversed. Defence counsel did not
ask the judge to caution the jury about the personalization by plaintiffs
counsel, but the judge did so of his own motion.

[18]

Chief Justice Finch clarified the significance of failing to object in a
judgment released one year after
de Araujo.
In an appeal based solely on
improper submissions to a jury, the Chief Justice stated that the failure of
counsel to move for a mistrial was a complete answer to the appeal based on
counsel misconduct:
Giang v. Clayton, Liang and Zheng
, 2005 BCCA 54 at para. 7.
He pointed out the practical implications of allowing an appeal based on trial
unfairness when defence counsel failed to object to the trial judge:

[11]       It would be quite
wrong in my view to permit defence trial counsel to remain silent, and rest his
clients fortunes on a possible favourable verdict, and then to complain in
this court that the trial process was unfair.

[19]

In a judgment concurring on this issue, Madam Justice Southin came to a
similar conclusion, commenting that the appellants, having had a remedy below
which they chose not to seek, ought not to be granted it now (para. 30)
and addressing the trial fairness assertion in this way:

[32]      But the fairness of a
trial is often in the eyes of the participants. A transcript does not give a
complete sense of events in a courtroom. Counsel for the appellants, by not
moving for a mistrial, obviously did not consider the trial unfair and I am
not prepared to say that he was in error.

[20]

There are many reasons counsel might not object to statements to the
jury that go beyond the proper scope of a jury address. As Southin J.A. points
out, the most obvious inference is that counsel did not consider the statements
so improper as to imperil trial fairness. Counsel may also fail to object
because they have made a strategic assessment that the comments amount to
pandering and that a jury will react negatively to them. Justice K. Smith pointed
out in
Cahoon

v. Brideaux
, 2010 BCCA 228 that:

[4]         juries will
generally recognize misrepresentations of the evidence, that they will be
offended by unfairness and by submissions that insult their intelligence, and
that they will not be moved by sophistry or by appeals to cheap sentimentalism,
prejudice, or base motives.

[21]

Whatever the reasons for the failure to object, an appellate court will
be very reluctant to permit an appellant to base an appeal on improper
statements by opposing counsel that could have been raised with the judge at
the time but were not.

[22]

This Court has taken a consistent approach to the failure to object to
what are later alleged to be improper statements to a jury. In
Ramcharitar
v. Gill
, 2008 BCCA 430, referring to
Brophy
, Justice Lowry stated at
paras. 2324:

This Court will rarely intervene in a civil case where
complaints in the nature of those raised for the first time here were not
raised at trial. ...

The nature of the statements now
complained of does not raise this to an exceptional case that would justify
ordering a new trial. The judge, who was in the best position to observe the
effect of what defence counsel said, made no comment at all. Mr. Ramcharitars
counsel said nothing other than what he said in reply. If he had sought it,
some instruction might have been given. It was apparently thought to be
unnecessary.

[23]

In
McBryde
, after citing this passage from
Ramcharitar,
Justice
Hinkson (as he then was) resolved a similar problem in this way:

[56]      I am compelled to the same conclusion as that of Mr. Justice
Smith in
Cahoon
at para. 15:

It must be noted that Mrs. Cahoons
counsel (who is not counsel on the appeal) did not object at the trial to any
of the tactics or remarks of defence counsel of which Mrs. Cahoon now complains,
that she collaborated with defence counsel and the trial judge in the
preparation of the judges charge to the jury, and that she made no objection
to the judges instructions to the jury and did not ask him to redirect the
jury on any point. Counsels inaction when timely intervention would have
permitted corrective steps to be taken by the trial judge, who was best
situated to deal with any perceived injustice, would, in the absence of
exceptional circumstances, support an assumption that these matters could not
have been seriously misleading or unfair and there would be no reason for
suspecting injustice:
Brophy
at paras. 52-54 ...

[57]      There are no
exceptional circumstances here, and I would not accede to the appeal concerning
the conduct of counsel for the respondents at trial.

Proceedings at Trial

[24]

The trial began on June 4, 2018 before the judge sitting with a jury. Liability
had been admitted, so the only issue was quantum of damages. The trial lasted
for 30 days and the jury deliberated over three days.

[25]

At the commencement of the trial, the trial judge explained to the jury
the nature of the opening statement:

Following these remarks that I am
giving them to you now, the trial will proceed as follows. First,  counsel for
the plaintiff, will make an opening statement. He will outline the nature of Mr. Browns
case. I remind you, or I tell you right now, what [plaintiffs counsel] says is
not evidence. His opening remarks are a road map of where he thinks the case is
going to go, but it is not intended to be nor is it evidence. The evidence is
the testimony of the witnesses who will take the stand  Counsel will try to be
helpful to you in understanding the evidence; but what they say, as I have
indicated, is not evidence, and you must not accept it as that.

[26]

In his opening address to the jury, counsel for the respondent made a
number of statements that the appellant says went beyond the proper scope of an
opening statement. The appellant identified the impugned statements as follows:

(
a) I have the
privilege of representing Chris Brown.

(b) At the end of the day, we have to decide how much
money has to be paid to Mr. Brown as a result of what happened that day.

(c) What youll see is the hitch, which is welded to
the frame of the truck, its whacked. The front of her car gets dented in, and
the grille and everything is dented in. Doesnt look like theres a lot of
damage to his vehicle, but the reality is thats why we have bumpers. When you
hit a bumper, its going to take the blow; and in fact, you might not be hurt
at all. But it didnt hit the bumper. It hit the hitch, hit the frame. And all
of that force goes into the body

You could have a major accident and not be hurt, or
you could have a minor accident and have lifelong ramifications. Theres no
engineering evidence. You know, sometimes we get engineers. Ive heard of that.
Ive never done it. Actually, once. I shouldnt say never.

(d) Now, youve got whiplash. Whiplash is not a legal
term. Its not a medical term. But it basically talks about your head. When you
get hit, when your head or upper body goes forward and comes back, you rip --
that you can rip and tear the muscles and the soft tissues. Id rather break a
leg and have that pain, because it gets better, than Id ever want -- in my
submission, anybody would want -- from whiplash. Because those pains often, and
in this case, clearly continue.

(e) I mean, one of the hardest trials to have is
about chronic pain.

(f) His condition is chronic; its ongoing. I have no
idea if its going to end.

(g) What I wanted to give you an example of in
dealing with somebody like Mr. Brown, who clearly, you know, has some
pre-existing issues -- which my friends going to make a lot of hay out of. Its
like my friend who has a hernia, and a hernia -- if you do too much, it can be
a pain. And so I dont know if you know anybody that has that, but -- anyways,
she just has to limit herself. We go climbing sometimes. She doesnt go as far
as I do; she turns around. And you just have to know your limits, work within
it. And thats what Mr. Brown was fully capable of doing prior to this
accident.

(h) Now, its an interesting system because youre
victimized when youre hit. Now youre victimized when youre on trial because,
ultimately, although the defendants the one that should be on trial, this is a
case where Mr. Browns going to be on trial. And that is just the way what
it is. But you have to recognize that there is an element of unfairness to that.

(i) Right now, the past five years was an awesome
time to be in the trades, and hes missed out on that.

(j) On a personal note, on behalf of Mr. Brown,
I want to thank you. Sometimes that doesnt happen, but it should;  This is a
huge imposition, I think, to have to sit through this.  But I want to thank
you for having agreed, though not quite voluntarily, but to act as a jury.

(k) Im
going to make some mistakes; and if I do, His Lordship is going to point them
out, I anticipate, and I apologize for that. If I make mistakes, please dont
put it on Mr. Brown. I mean, Im only human too; and if Ive screwed up in
some way by reaching too far or saying something that I shouldnt have, thats
my fault as a lawyer, but not Mr. Browns fault. I mean, he is the person
that were all here to deal with and -- so dont lay that at his feet if I do,
please. He has been, in my submission, hurt immensely, and hes entitled to
some reasonable compensation as a result.

[27]

No objection was made by defence counsel to any aspect of the opening
statement and the trial judge made no comment on it.

[28]

The appellant does not suggest that any one of these statements individually
would warrant a new trial, but submits that cumulatively, taken with the
impugned statements from the closing submissions, they have that effect.

[29]

On July 13, 2018, following the conclusion of the evidence, counsel for
the plaintiff addressed the jury in closing submissions. The appellant takes
issue with the following statements by plaintiffs counsel:

(a) Chris and his wife Lynn have asked me to begin by
thanking you.

(b) They know, and I do, what a sacrifice youve
made. This has been a very long trial and for all these weeks out of your
lives, it is greatly appreciated. You have to know that.

(c) You know, Ive been in a few jury trials and I
just wanted to tell you that, you know, the care and that the attention that
you set have paid is extraordinary and for such a length of time and I thank
you for that because youve clearly paid attention. And I sincerely hope that
weve done our part here to present the evidence carefully, fully and courteously
because thats my goal.

(d) Before I go on further, I want you to know Ive
been committed to Chris, to help him. So committed that maybe Ive objected
when I shouldnt have. Maybe I was a bit too zealous and I apologize. If it
ever seems like Im overreaching, or not being accurate, if theres a mistake
its mine, not Chriss. You know this trial took far too long and its my
fault, Im sorry. I may have called too many witnesses. I might have
cross-examined too long. You know, this is not an easy job. It can be
challenging to get it all right, and I find myself second guessing myself
sometimes.

(e) And it reminded me that law partner, Tyler, he
coaches baseball and he says, he gives you pep talks and he says you know,
nobody who ever gives his best ever regrets it. And I hope I have. Its also
true of Chris.

(f) Hes given his best to get over this. There can
be no doubt about that. If anyone tells you that he didnt do his best to get
better or didnt do his best to work and to try to overcome his pain, you can
tell them that he did his best and that he should never regret that.

(g) And thankfully she hit her bumper because it did
what it was designed to do. It took the impact such that she didnt think there
was any damage before she saw it. She was shocked at the damage to her car. It
allowed her to avoid getting hurt, go on to get married, have a child, work on
her career and really not care about this trial. She has no idea when this
trial started. She has no idea whats going on. This isnt about her. She gets
to live her life.

(h) On the other hand, Chris did not benefit from
getting hit in a bumper. If he had, this might be all different. We have
bumpers to minimize the force, so people dont get hurt. In this case the Honda
rammed the hitch, the hitch is welded to the frame of the car. All of that
force goes into the vehicle, pushing it forward one and a half car lengths and
all that force is transferred into the people inside. We have bumpers for that
reason to reduce injury and she missed it.

(i) Chris Brown, I was trying to figure out the right
word for Chris. I decided hes a muddled fellow. Hes certainly not sophisticated,
but hes also a clear example of somebody thats in chronic pain.

(j) So its clear to us all that Chris
was profoundly affected on March 30, 2013 and for five years has been
desperately trying to find relief. For five years hes been hemorrhaging money.
Money hasnt been coming in. Its been going out and there is no relief in
sight.

(k) You know that he wanted to get
better. He didnt want to be in pain. And you know that if there was something
else that he didnt do or had done over the past five years, youd know about
it. And youd know about in part because they hired [Action Pacific]
investigations, who followed both Chris, Lynn and the boys at times, three
years, 2015 and 2016 and 2018.  So they spent over $11,000 following him to
try to deny that he was hurt.

(l)
My friend will argue that Mr. Brown will be able to work once he deals
with his psychiatric issues and that you should reduce his claim accordingly.
Well, there was one psychiatrist that testified, that was Dr. Spivak and
that was my new word for the trial, risible; Ive never heard about risible
before. I had to look it up. And risible means laughable and his comment was
when the defence witnesses, Dr. Heran and Dr. Kemble said, oh well,
oh yes, hes clearly got pain, hes got problems. It really is all in his head
and you know, if we could fix him psychiatrically, he will have no more pain or
less pain, he said this was risible.

(m)
It is my opinion that Mr. Brown has done everything reasonably possible
to mitigate his loss. His [sic] been shown to be faithful to attending
prescribed physiotherapy appointments in the past. Hes tried his best with his
own remedial programme at home, including ergonomic changes. Hes shown a great
motivation in traveling to Germany to undergo his surgical treatments. He has
mitigated his loss as best he can.

[Note: This is
not a submission to the jury, but a reference to a passage from a medical
report. I refer to this particular passage (m) later in my Reasons as the
Expert Evidence Quote.]

(n)

I did want to mention, there is a loss that
we cant claim in law but, but there is evidence before you. I think its
Exhibit 8, Tabs 27 and 28 because he borrowed money as a result of basically
not having money that, his own money. He ended up borrowing $40,000 over the
past five years, and if you look and calculate it out, interest that is
accumulative on those loans is $58,078 to the start of the trial. Thats not
something that youre entitled to get back as what we -- pecuniary loss. What Im
suggesting is it is something to be looked at to be cognisant of when were
figuring out, well, what amount should we get for his pain and suffering? Im
not saying it equals that. Im just saying its something to be aware of thats
an expense hes had as a result of this collision.

(o) So, Ive
spoken for a long time. Ive made some mistakes, and Im sorry again if I have
gone on too long. But its the last chance that I have to advocate on behalf of
Chris. At the end of all this, Chris will be waiting your verdict on next week
and after that everything is over for us, we all go home. Chris lives with this
for the rest of his life, you need to remember that this is the end for him, theres
is no -- he doesnt get a chance to, you know, to look at it again. So I trust
youll be fair, and I thank you for listening to me. Thank you for overlooking
my faults. Thank you.

[30]

At one point during closing submissions, plaintiffs counsel broke down
and the jury had to stand down. In the absence of the jury, plaintiffs counsel
explained to the judge that the emotion he had shown was unconnected with the
case, and agreed that the trial judge should explain to the jury that it should
be ignored. That request was made by defence counsel as well. The trial judge
then went on to address plaintiffs counsel regarding some of the matters that
have been raised in this appeal, although no objection had been made by defence
counsel:

But the second issue that I am
more concerned about, is  counsel should not be personalizing the case for the
jury and adding their personal stamp to a party, to the partys position, to
the partys claims, and that is what I am going to be telling them. Because in
my view you are going there
.
Whether you have actually crossed the
line, I am not being asked to decide that.
But it is not for counsel, in my
respectful view, to say if mistakes were made, they were not Chriss, as you
have said, they were mine, as you have said. That is bringing counsel into the
equation and counsels conduct and counsels integrity in my view and that is
not proper advocacy.

[31]

I have underlined one sentence in this passage to reinforce the
important point that the trial judge had not been asked by defence counsel to grant
one of the remedies available to a trial judge, such as declaring a mistrial or
taking the case away from the jury. The concerns raised were raised by the
judge.

[32]

When the jury returned, the trial judge made the following statement to
the jury:

COURT: Please have a seat, folks.

A couple of things I want to say to you before I ask [plaintiffs
counsel] to continue with his closing submissions. First off it deals with the emotions,
the challenges of trial work. Obviously, [plaintiffs counsel] was upset. You
cannot allow that to sway you one way or the other, I am not suggesting that it
would. But you have taken an oath, or you made a formal affirmation to decide this
case strictly upon the evidence they presented and not to be swayed by any
sympathy for or against someone and antipathy against someone. Nor can you
allow counsels conduct to allow you to sway it either. You have to be impartial
deciders, triers of facts, impartial judges and decide this case on the
evidence.

I am also going to tell you that counsel should not be
expressing their personal opinions about a case or about a witness. If counsel
does and you decide that, you have to disabuse your mind of that. You cannot
allow counsels personal views to sway you.

Counsel cannot put a personal stamp on a case. Obviously,
they work with their client, they represent their client. That is what lawyers
do, but if you have perceived, if you perceived, because you decide this, if
you perceived that anything [plaintiffs counsel] has said seems as though he
is putting his stamp on the case, personalising it, you have to disabuse your
mind about that, because that is not counsels role.

Counsels role is to bring the
evidence to Court and to advocate on behalf of their client, not to express
personal opinions. So you are not to be swayed one way or the other. If you
think, if you have concluded that what [plaintiffs counsel] has said, or for
that matter what anybody else says, personalizing a case, you decide your case,
this case, strictly on the evidence.

[33]

Later in the plaintiffs closing submissions, another issue arose.
Plaintiffs counsel referred the jury to a paragraph from a medical report that
had been redacted from the exhibit (the Expert Evidence Quote referred to
above). At the next break, defence counsel raised this with the judge and asked
the judge to instruct the jury that the passage read by plaintiffs counsel was
not evidence and should not be considered. During discussion with counsel, this
exchange occurred:

[DEFENCE COUNSEL]: Well, my proposal is --

THE COURT:
Are you making an application?

[DEFENCE COUNSEL]: Well, my proposal --
Im not making any
application
, My Lord.

THE COURT: Okay.

[DEFENCE COUNSEL]: But -- far from that, but
I think that
the jury needs to be instructed that, that was not part of the evidence
.
And that is, it was not -- its not in the report before them.

[Emphasis added.]

[34]

I have underlined the reference to an application, as this was another
opportunity to seek either a mistrial or continuation with judge alone, but
defence counsel presumably considered that this issue could be dealt with by a further
instruction to the jury.

[35]

The trial judge then brought the jury back and gave them a detailed
instruction, beginning with:

I think it has been said more
than once, that what counsel say or what I say, is not evidence. What is
evidence is what the witnesses say or the documents that have been filed as
exhibits in this trial.

The judge then explained in detail the error that plaintiffs
counsel had made in referring to a document not in evidence.

[36]

Plaintiffs counsel then completed his submissions and defence counsel
made his submissions to the jury. Following completion of the submissions, the
trial judge discussed his charge with counsel. Defence counsel requested a
charge concerning plaintiffs counsels submission in these terms:

I did have some concerns with
some of my friends comments in regards to his closing on Friday, and that was
with respect to my client, Nicole Goodacre, in personalizing it on the basis that
she didnt care because she wasnt here, she was able to get on with her life,
have a family and a baby; and characterizing his client as, well, he hasnt
been here because hes -- sometimes because hes in pain. I think thats unfair
to put it in that vein, and I think you need to do to, in your instructions and
charge to the jury, point that out. Thats improper, in my submission, to
personalize both of them in that sort of a vein, whether theyre here or not
and the reasons that that may or may not be. Thank you.

[37]

No other objections were made to plaintiffs counsels submissions and defence
counsel made no other request for a corrective charge.

[38]

In his charge to the jury, the trial judge repeated his direction
concerning plaintiffs counsels emotion during submission and the
personalizing of the case:

Before addressing the defence
case, let me comment briefly on plaintiff counsels final submissions to you
and the manner in which they were done. You are aware, ladies and gentlemen, that
[plaintiffs counsel] became emotional during those submissions and began
crying. He explained to you afterwards that it had nothing to do with Mr. Brown
and that you should not allow his emotions to influence you in any way. He is right
in that. Counsels feelings have no place in your deliberations. In saying
this, I also note that neither counsel should have personalized this case or be
seen to have put their stamp of approval or endorsement on their clients
position. It matters not, ladies and gentlemen, that [plaintiffs counsel] says
he is committed to helping Mr. Brown or that he hopes he has given his
best for his client. What matters is the evidence that both sides have presented
to you, the arguments they have made based on that evidence and your assessment
of that evidence.

[39]

The position of the appellant on this appeal is that notwithstanding the
failure of trial counsel to object in a timely way, the cumulative effect of
plaintiffs counsels statements to the jury was so prejudicial to a fair trial
that a new trial is required. The respondent accepts that some of the comments
inappropriately personalized the case, but says that the failure to object is a
factor that strongly militates against the serious remedy sought in this
appeal.

Analysis

[40]

I agree with the appellant that many of the comments of plaintiffs
counsel improperly personalized the case or expressed a personal opinion
inappropriate for a jury address. I would not, however, give effect to the
appeal on that ground for two reasons. First, the trial judge instructed the
jury appropriately concerning personal opinions of counsel on two separate
occasions, once in the middle of closing submissions of plaintiffs counsel and
once in his charge to the jury, to caution them not to be influenced by such
comments.

[41]

On the first such occasion, the judge specifically cautioned the jury
that:

counsel should not be expressing their personal opinions
about a case or about a witness. If counsel does and you decide that, you have
to disabuse your mind of that. You cannot allow counsels personal views to
sway you.

if you have concluded that what
[plaintiffs counsel] has said, or for that matter what anybody else says,
personalizing a case, you decide your case, this case, strictly on the
evidence.

[42]

In his charge to the jury, the trial judge reiterated his caution that neither
counsel should have personalized this case or be seen to have put their stamp
of approval or endorsement on their clients position and addressed another
issue that the appellant has raised in this Court, the assertion that plaintiffs
counsel had attempted to inoculate his client from weaknesses in the case by
deflecting any such weaknesses onto himself:

It matters not, ladies and
gentlemen, that [plaintiffs counsel] says he is committed to helping Mr. Brown
or that he hopes he has given his best for his client. What matters is the
evidence that both sides have presented to you, the arguments they have made
based on that evidence and your assessment of that evidence.

[43]

These instructions are appropriate to deal with the concerns arising
from the submissions of plaintiffs counsel. Judges should not be quick to
assume that the manner in which counsel addresses a jury will unduly influence
them. As Justice Smith said in
Cahoon
:

[2]        That a jury might be improperly influenced by the
words and tactics of counsel is no doubt possible:  But it must be rare in
modern times that counsels words and actions alone could hoodwink eight
citizens chosen at random and properly instructed in the law and so divert them
from the due discharge of their duty.

[Citations omitted.]

[44]

The second reason I would not give effect to this ground of appeal is
that defence counsel (who is not counsel on the appeal) did not object to
plaintiffs counsels personalizing of the case, or ask the judge to take any
of the stronger steps the appellant now asks this Court to take. I say this
without being in any way critical of defence counsels decisions. He may well
have considered that any unfair aspect of the plaintiffs jury address was
adequately addressed by the judges instructions to the jury. He may not have
considered the comments of plaintiffs counsel to be very serious at all. He
may have considered that plaintiffs counsel was doing more harm than good to
his own clients cause. In any event, the failure to object weighs heavily
against appellate intervention.

[45]

I should add that not all of the comments to which the appellant takes
exception as improper personalization are in fact improper. One clear example
is the appellants submission that plaintiffs counsel exceeded the parameters
of a proper opening statement when he said to the jury:

His condition is chronic; its
ongoing. I have no idea if its going to end.

[46]

On its face, this would be an improper statement of counsels opinion.
However, the respondent points out that what plaintiffs counsel was doing in
this part of his opening was paraphrasing one of the medical opinions he
intended to adduce. The full context makes this clear:

Youre going to hear from Dr. Gee. The family doctors
going to come testify. Hes going to indicate that he initially believes the
soft tissue injuries that he has -- Mr. Brown -- and that Mr. Brown
has not responded to conservative measures, which included various therapies
that I just mentioned.
His condition is chronic; its ongoing. I have no
idea if its going to end.
And the chance of him showing significant
improvement in the future is unlikely, he will tell you. And in his opinion, its
unlikely he was going to be able to return to his occupation as a painter.

[Emphasis added.]

[47]

There is nothing improper about this statement when read (or heard) in
context.

[48]

Defence counsel did object to one other statement the appellant
contests, the reference to a portion of a medical report that was not properly
in evidence (what I referred to earlier as the Expert Evidence Quote). However,
the judge gave a cautionary instruction to the jury concerning this matter. On
this occasion, the trial judge asked defence counsel whether he was making an
application and was advised that he was not. Defence counsel was presumably
satisfied with a cautionary instruction. Absent exceptional circumstances, it
would not be appropriate for this Court to intervene when counsel at trial
adverted to the issue and elected not to ask for a stronger remedy.

[49]

The final area of dispute in this Court concerned statements made in
both the opening statement and closing submissions that the appellant
characterizes as giving what amounts to engineering evidence concerning the
impact of the collision on the hitch of the plaintiffs car as contrasted with
the bumper of the defendants car, and the transfer of the force of the impact
to the occupants of the plaintiffs vehicle. The trial judge was in the best
position to assess the significance of these statements on the jury. They are
not of themselves sufficient to conclude that the trial was unfair, and once
again, the failure of defence counsel to object to the statements weighs heavily
against any conclusion that the statements imperiled the fairness of the trial.

[50]

Having in mind the cautionary instructions given by the trial judge to
the jury, it is my opinion that there are no exceptional circumstances in this
appeal sufficient to overcome the absence of objection by defence counsel to
the conduct about which the appellant now complains. I would dismiss the
appeal.

The
Honourable Mr. Justice Hunter

I AGREE:

The Honourable
Mr. Justice Harris

I AGREE:

The Honourable
Madam Justice Fisher


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Quach v. Mitrux Services Ltd.,

2020 BCCA 25

Date: 20200123

Docket: CA45644

Between:

Tri Quach

Respondent

(Plaintiff)

And

Mitrux Services
Ltd. and Ameri-Can Freight Systems Inc.

Appellants

(Defendants)

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia,
dated September 6, 2018 (
Quach v. Mitrux Services Ltd.
, 2018 BCSC 1535,
Chilliwack Docket S030413).

Counsel for the Appellants:

E.A.W. Heath

Counsel for the Respondent:

D.A. Sorensen

M.A. Truong

Place and Date of Hearing:

Vancouver, British
  Columbia

September 6, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2020

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Hunter

Summary:

The appeal is from an award
of a years salary, under a fixed‑term contract providing that upon
termination by the employer, the balance of the salary for the remaining
portion of the term would become due and owing, and an award of aggravated
damages. The parties had signed a second agreement making the contract a month
to month contract. The judge found new consideration was not given to the
employee in exchange for agreeing to the second contract, and hence the fixed‑term
contract applied. The employer appealed. Held: Appeal allowed on the issue of
aggravated damages only. The language of the second contract contemplated fresh
consideration but none was given. The judges conclusions that the fixed‑term
contract applied were correct. The award for aggravated damages is set aside.
The record did not support a conclusion that the employee suffered more than
normal distress, stress and anxiety as a result of the dismissal. Comments on
the law of mitigation of damages in an employment setting are provided.

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

This appeal concerns damages assessed under a one‑year fixed‑term
contract of employment in circumstances in which the employer, Mitrux Services
Ltd. and Ameri-Can Freight Systems Inc., repudiated the contract before the
employment began and in which the employee, Mr. Quach, obtained
alternative employment soon after the repudiation. The judgment was in an
amount equal to the total annual salary of $138,000, plus $15,000 in aggravated
damages, plus costs.

[2]

In these reasons, I refer to the employee as having been dismissed even
though the employment never began. In doing so I adopt the language of the
parties, which seems to be a convenient entry into relevant authorities,
remembering that employment law in any case is but a specialized field of the
law of contract.

[3]

The main issue in the trial was which of two signed contractual
documents applies as the operative contract between the parties. The first in
time, referred to as the Fixed‑Term Contract, was prepared by a lawyer
engaged by the employee to record the employment offer made to him by the
employer, accepted by e‑mail on August 7, 2015. The operating
mind of the employer was Mr. Arora and Ms. Ali was, at the material
time, the employers sales manager. Mr. Arora and Ms. Ali met with Mr. Quach
on August 25, 2015, and each signed the Fixed‑Term Contract. This
document described a one‑year term of employment from October 1, 2015,
to September 30, 2016, at an annual salary of $138,000.

[4]

The second contract, entitled Employment Agreement and Contract Waiver
referred to as the Second Contract, was signed by the parties on September 28, 2015.
It came into being after Mr. Arora sought legal advice regarding the Fixed‑Term
Contract, and asked the employee to agree to a month‑to‑month
contract in its place. The employee resisted, and in doing so reminded Mr. Arora
he had not been reimbursed $1,000 for his preparation of the Fixed‑Term Contract.
Mr. Arora replied that he would reimburse the employee when he started
work. On September 28, 2015, Mr. Arora advised the employee that
he required a new contract to be in place before the employee started work. By
then, the employee had left his secure previous employment. The employee signed
the Second Contract later that same day. That document provided for month‑to‑month
employment commencing October 1, 2015, terminable upon four weeks
written notice or payment of one months salary in lieu of notice. On the
employees insistence, it included as a term:

5.6       Any failure to comply the terms
[
sic
] of the Employment Agreement or misrepresentation by the Employer
will void this Employment Agreement.

[5]

On September 30, 2015, Mr. Arora terminated the employment,
offering reasons that the judge found did not constitute cause for dismissal.

[6]

The employee sued for damages for wrongful dismissal, basing his claim
for damages on the Fixed‑Term Contract. The employer, in response, alleged
cause and advanced the Second Contract as the operative agreement between the
parties.

[7]

In his reasons for judgment concerning the operative contract, the judge
rejected the employers two submissions that the Fixed‑Term Contract was
unenforceable by reason of
non est factum
and because the fixed‑term
provision was mistakenly included. The judge accepted the employees submissions
that the Second Contract failed for lack of fresh consideration. Alternatively,
the judge found that the Second Contract was void on the basis that Mr. Arora
had misrepresented his intentions to employ Mr. Quach and failed to comply
with the terms of the Second Contract by not allowing the employee to begin
employment on October 1, 2015, both contrary to clause 5.6 set out
above.

Grounds of Appeal

[8]

The employer appeals from the order for damages and costs. It contends the
judge erred:

1.

in finding the $1,000 payable to the employee as reimbursement of legal
fees incurred in preparing the Fixed‑Term Contract was not good
consideration for the Second Contract;

2.

in determining that the employer had made a misrepresentation to the
employee that voided the contract; and

3.

in awarding the employee aggravated damages.

[9]

To succeed in establishing the Second Contract as the operative
agreement, the employer must succeed on both ground 1 and ground 2.

Discussion

[10]

It is useful to start with the scope of this courts appellate role. Our
function is not to retry a case, but rather to determine whether the judge made
a reversible error. In respect of errors of law, we must ask whether the judge
was correct on the question of law posed. On questions of fact or mixed
questions of fact and law, we must ask whether a judge made an obvious (palpable)
and material (over‑riding) error:
Housen v. Nikolaisen,
2002 SCC 33.

Consideration for the Second Contract

[11]

It is a basic principle of contract law that consideration between
parties is required to create a binding contract. There has been shifting of
this principle in cases of variation of terms of the contract, discussed in
Rosas
v. Toca
, 2018 BCCA 191.
Rosas
considered a series of
informal arrangements to extend the time for payment of a debt, to the point
that the limitation period on the original debt expired before an action was
commenced seeking to recover it. Chief Justice Bauman, writing for the court,
addressed the law of fresh consideration as it should apply to variations of existing
contracts and concluded at para. 183:

[183]     When parties to a
contract agree to vary its terms, the variation should be enforceable without
fresh consideration, absent duress, unconscionability, or other public policy concerns,
which would render an otherwise valid term unenforceable. A variation supported
by valid consideration may continue to be enforceable for that reason, but a
lack of fresh consideration will no longer be determinative.

[12]

Employment contracts, even where reduced to writing, rarely define the
consideration for the contract. They are commonly devised so that the benefit
(consideration) received by the employer is the services of the employee, and
the benefit received by the employee is the pay and other emoluments flowing on
performance of the duties. From time to time employment contracts, both written
and oral, are modified. When that occurs, we may come to the issue as to which terms
apply: those of the original agreement or those after modification. An example
of an oral agreement subsequently modified to the disadvantage of the employee
in a written agreement is
Singh v. Empire Life Ins. Co.,
2002 BCCA 452.
In
Singh
, Chief Justice Finch explained:

[12]      I am also of the opinion that the
defendant cannot rely on those provisions of the subsequently signed Regional
Manager's Agreement, which are less advantageous to the plaintiff than the
terms of the original contract. In
Watson v. Moore Corporation Ltd.
,
[1996] B.C.J. No. 525 (C.A.), a majority of the court held that
continued employment, without more, could not amount to consideration. There
was no evidence that forbearance to discharge the plaintiff could amount to
consideration.

[13]

A similar
conclusion was reached by the Ontario Court of Appeal in
Francis v.
Canadian Imperial Bank of Commerce
(1994), 21 O.R. (3d) 75.
The court affirmed the general principle that modification of a pre‑existing
contract will not be enforced unless there is a further benefit to both
parties.

[13]

The judge relied upon
Singh
in reaching his conclusion that fresh
consideration was required to solidify the Second Contract as a binding
agreement. The effect of
Rosas
upon
Singh
(not referred to in
Rosas
) has not been addressed in this case. It seems to me that the import
of
Rosas
may not change the authority of
Singh
in the nuanced
world of employer and employee contractual relationships. Whether it does is an
interesting question that can and should be left to another day because, in my
view, the Second Contract presents much more than a
Rosas
‑style
variation in any event.

[14]

The nature of the Second Contract is exposed in its formal name
Employment Agreement & Contract Waiver. The name demonstrates that something
more than employment is the subject of the agreement. That something more is
the cancellation of the Fixed‑Term Contract. This Second Contract, then, is
much more than variation of the Fixed‑Term Contract. By the terms of the
Second Contract, that first contract would come to an end and would be replaced
by an arrangement favourable to the employer and unfavourable to the employee. Recognizing
that this new contract bestows benefit on the employer, the Second Contract
expressly contemplates consideration (benefit) to the employee for the
cancellation, in these words:

2.2       In consideration of the
termination of the prior Employment Agreement, the Employer agrees to waive
probationary requirements as set out by the Labour Standards of BC and will adhere
strictly to the terms of Termination of Employment.

[15]

When analyzed carefully, however, this clause provides no consideration,
although it pretends to do so. It may be that the reference to probationary
requirements is a reference to the three month period during which, by
s. 63 of the
Employment Standards Act,
R.S.B.C. 1996, c.113,
an employee is not entitled to termination pay. Section 63, however, would
not apply in the circumstances present here because the
Employment Standards
Act
establishes a floor of standards, and does not interfere with higher
standards resulting from the common law, or contracts of employment. In other
words, the consideration spoken of in clause 2.2 of the Second Contract
gives no benefit to the employee. Yet the contract contemplates a purported
benefit to the employee for giving up the Fixed‑Term Contract. It is to
this point that the employer advanced the payment of $1,000 as consideration
capable of supporting the Second Contract.

[16]

The judge found that the mutual benefit required to form the Second
Contract was not established. He said:

[252]    I do not find the defendants promise to pay $1,000
towards the plaintiffs legal bill for the drafting of the First Contract is
consideration for the Second Contract. They are unrelated.

[264]    I find in the case at bar that the plaintiff
received no further benefit from the Second Contract; in fact, he suffered the
loss of the benefit of the Term provision, and its guarantee of employment for
a term of one year, as he had over the first term under the Fixed‑Term
Contract, with nothing in exchange. Counsel for the plaintiff pointed out,
aptly in my opinion, that the defendants, on the other hand, received a
significant benefit because they were no longer liable to the plaintiff for
damages over the first term.

[265]    There is a conspicuous
difference in Mr. Quachs entitlement to damages on termination under the
Fixed‑Term Contract (12 months) and the second contract, (one month). I
agree with the plaintiff that from a policy standpoint it would lead to an
unrealistic and unfair result if the principles of fresh consideration did not
apply in a situation where employment had not yet commenced but there was a
subsequent contract that amended the initial expected terms of employment, as
did the Fixed‑Term contract.

[17]

The employer says the judge erred in his conclusions and that its
commitment to pay $1,000 to reimburse the legal fees incurred by the employee
in creating the Fixed‑Term Contract was sufficient benefit to the employee
to create the Second Contract as a binding agreement. In support of that
submission it refers us to the following cross‑examination of the
employee:

Q         Now, one of your claims is that you have
claimed that you are entitled to be reimbursed for a thousand dollars for the
cost of drafting the first contract, correct?

A          Yes.

Q         And who told you that -- that that would be something
you'd be entitled to?

A          Mr. Arora.

Q         When?

A          When I was discussing with him about changing
the contract again in late September, when he asked me to get the contract
redrafted again by a lawyer and I told him that the first contract had already cost
me a thousand dollars, where he had previously promised me that he would pay
for that and still have done so.

Q         I see. So that had never been discussed prior
to the execution of the first contract, it was only discussed at the time of
the second contract?

A          That is correct.

Q         Well, how much -- how long before the signing
of the second contract did you agree that you'd be reimbursed for the $1,000?

A          The 1100 dollars?

Q         Well, I'm just talking about the 1,000, for
now.

A          Okay, well, the 1,000 was probably made a few
days or maybe a week before that.

Q         But Jas said, "If you sign this contract,
we'll make sure to reimburse you the 1,100 dollars even."

A          If I sign this contract?

Q         Yeah, if -- if you chan --

A          No, it was --

Q         -- if you change the contract that -- that you'd
-- you'd certainly get your reimbursement.

A          To change the contract.

Q         Yes.

[18]

The employee says the promise to reimburse $1,000 was not good
consideration because the evidence does not establish that the promise to pay
was given in exchange for his agreement to the Second Contract. He denies that
the portions of the cross‑examination relied upon by the employer, read
in the context of his entire testimony, establish that the promise to pay him
$1,000 was made in exchange for his signing the Second Contract. He refers us,
also, to other passages of the transcript in which he describes a previous
promise by the employer to reimburse him for his legal fees related to the
Fixed‑Term Contract, and adopts the judges characterization of the
evidence as vague. Further, he says that the offer to pay $1,000 was illusory
because the amount was not paid, although at trial the employer agreed that it
owed him that amount. He also asks the court to draw an adverse inference from
the absence of a plea of fresh consideration in the employers amended response
to civil claim, as it was written at the time of trial.

[19]

The question whether fresh consideration was provided to the employee as
part of the price for the employer securing a more favourable contract with
the employee is a question of fact, to which the deferential standard applies.

[20]

In my view, the judge accurately described the evidence on the issue of
whether reimbursement is fresh consideration when he said it was vague. Apart
from the problem that consideration is referred to in the Second Contract,
but not in the form of the $1,000 payment consideration now posited as its
basis, it is clear that the terms of the Second Contract were not settled when
the employer offered to reimburse the employee $1,000. It is equally clear that
the sum of $1,000 was not paid to the employee on signing the contract, or at
any later time. Absent payment of $1,000, or a commitment given in the Second
Contract to pay it, any discussion of such a payment is fairly characterized as
vague. It was open, in my view, to the judge to find the employer had not
established fresh consideration of $1,000. I see no basis on which we may
interfere with the judges conclusion on this factual issue.

[21]

The Second Contract was premised upon the cancellation of the Fixed‑Term
Contract for consideration, but no consideration was provided. In these circumstances,
I cannot say the judge erred in his conclusion in respect to the consideration
issue.

[22]

In the result, I would not accede to this ground of appeal, and
accordingly, the submission that the Second Contract governs the dispute cannot
prevail.

Misrepresentation

[23]

The judge found, in the alternative to his conclusion that the employer
had failed to establish fresh consideration for the Second Contract, that the
employers failure to allow the employee to commence his employment was a
misrepresentation by the employer that voided the Second Contract pursuant to
clause 5.6 replicated above at para. 4.

[24]

The employer contends the judge erred in this conclusion. Given my
conclusion on the first ground of appeal, I will not address this ground in
these reasons.

Aggravated Damages

[25]

The employer contends the judge erred in awarding $15,000 as aggravated
damages.

[26]

The circumstances in which aggravated damages may be awarded are
described by Mr. Justice Goepel in
Cottrill v. Utopia Day Spas and
Salons Ltd.
, 2018 BCCA 383, leave to appeal refd [2018] S.C.C.A.
No. 533:

[14]      It has long been accepted that a dismissed
employee is not entitled to compensation for injuries flowing from the fact of
the dismissal itself:
Wallace v. United Grain Growers Ltd.
,
[1997] 3 S.C.R. 701 at para. 103. While the loss of a job is
very often the cause of injured feelings and emotional upset, the normal
distress and hurt feelings resulting from dismissal are not compensable: [
Honda
Canada

Inc. v. Keays
, 2008 SCC 39] at para. 56.

[15]      Ms. Cottrill argued that unfairness in the
manner of dismissal was sufficient in itself to ground an award for aggravated
damages. The authorities do not support that proposition. An award of
aggravated damages resulting from the manner of dismissal requires: (a) a
finding that an employer engaged in conduct during the course of dismissal that
was unfair or in bad faith,
and
(b) a finding that the manner of
dismissal caused the employee mental distress:
Honda
at para. 59.

[Emphasis
in original]

[27]

On the reasoning in
Honda
, not all mental distress from the fact
of dismissal attracts an award of aggravated damages  the plaintiff is
required to establish something well beyond the normal distress and hurt
feelings that invariably accompanies loss of employment. As Mr. Justice
Savage explained in
Lau v. Royal Bank of Canada
, 2017 BCCA 253
at para. 49, referring to
Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27,
and
Saadati v. Moorhead,
2017 SCC 28, testimony showing a
serious and prolonged disruption that transcended ordinary emotional upset of
distress may constitute a sufficient evidentiary foundation but the demeanor
of the plaintiff in the witness stand is an insufficient basis for a finding
of the requisite distress.

[28]

The judge in the present case found both of the
Cottrill
conditions were present. The employer, on appeal, does not dispute the judges
finding of bad faith. Its challenge to the award is directed to the second condition
 that the manner of dismissal caused the employee mental distress.

[29]

Having found that the employers behaviour during the dismissal
satisfied the criterion of bad faith, the judge summarized the effects of the
dismissal on the employee:

[317]    I found credible Mr. Quachs
testimony regarding the devastation he felt, feeling like a complete failure;
the stress and anxiety he felt. As he put it, he had been fired from a job he
had not even started. As I related earlier in these reasons, he had a baby coming,
financial obligations, in‑laws moving to live at his home and no other
source of income. I find Mr. Arora knew Mr. Quachs situation and
despite promises Mr. Quach would keep his employment, ignored his
situation.

[30]

The judge then observed that the employee had found new employment
quickly, and awarded what he said was an amount at the low end of the range of
aggravated damages  $15,000, concluding with this description of the employers
conduct:

[329]    The defendants conduct
was spiteful and deserving of compensation to the plaintiff.

[31]

The points that follow the judges description in his para. 317 of
the devastation attested to by the employee are the employees life
circumstances at the time of the dismissal, and in the normal course are not
matters that will increase damages. Rather, the question in this aspect of the
aggravated damages analysis is the impact of the termination on the employee
and his mental state, as to which the judge says little. Although he quotes the
word devastation and refers to the employees stress and anxiety, there is no
indication that the employees feeling of strong dismay and anxiety for himself
and family was beyond the normal distress and hurt feelings that are not
compensable. On the contrary, there is considerable evidence that he recovered quickly
from his loss of the position. For example, the record shows that the employee
was at least partially prepared for the possibility he would lose his job; he
had already sought out other employment opportunities, and because of that anticipatory
search, he found new employment soon after he learned he would not be starting
work with the employer. So too, the employees frank exchanges with Mr. Arora,
quickly corresponding with Mr. Arora and saying that he would see [Mr. Arora]
in court, demonstrate a sturdy response to the dismissal.

[32]

I conclude that as in
Cottrill
at para. 18, the record
falls well short of the legal standard that requires a serious and prolonged
disruption that transcends ordinary emotional upset or distress. While the
judge was entitled to factor his view on the employers spiteful behaviour
into the first condition (bad faith) for aggravated damages, evidence of more
than the normal transitory dismay, stress and anxiety is required to satisfy
the second condition of the test for aggravated damages. Here the quality of
the employees response does not equate to the sort of mental distress required
for this exceptional remedy.

[33]

I conclude the award for aggravated damages must be set aside.

Mitigation of Damages

[34]

The Fixed‑Term Contract, which governs the parties, provides:

4.1       The
parties understand and agree that the Employees employment pursuant to this
agreement may be terminated as follows:

(a) By the Employee, at any time, for any reason, on the
giving of four weeks written notice to the Employer;

(b) By the Employer, in its absolute discretion, at any
time, on the giving of written notice to the Employee at which time payment of
the full balance of the compensation due to the Employee for the entire First
Term or Second Term as the case may be will become due and payable within two
weeks of such notice of termination. For greater clarity, the Employer shall
pay to the Employee, all compensation due to the Employee at the date of
termination as well as all compensation due to the Employee from the date of
termination through to the expiration of the First Term or Second Term as the
case may be.

[35]

The judge made no deduction for mitigation of damages through post‑dismissal
earnings, relying upon
Howard v. Benson Group Inc. (The Benson Group Inc.)
,
2016 ONCA 256, leave to appeal refd [2016] S.C.C.A. No. 240.
Howard
was a case of a fixed‑term contract that did not contain a notice
period provision determining the employers obligations upon termination. The
court in
Howard
applied the courts earlier case,
Bowes v. Goss Power
Products Ltd.
, 2012 ONCA 425, and said at para. 22

that
if the parties to a fixed term employment contract do not specify a pre‑determined
notice period, an employee is entitled on early termination to the wages the
employee would have received to the end of the term. This conclusion in
Howard
extends
Bowes,
a case of a contract with a fixed notice period
provision that provided for payment
in lieu.
In
Bowes
,

the
court held at para. 30 that the amount agreed upon should be treated as
liquidated damages or a contractual amount.

[36]

The leading authority in British Columbia in a
Howard
sort of
situation, however, is
Neilson v. Vancouver Hockey Club Ltd
. (1988),
51 D.L.R. (4th) 40, (B.C.C.A.), not referred to in either
Howard
or
Bowes.
Rather than approaching the damages issue from the singular
question whether the contract is for a fixed term, as
Howard
does,
Neilson
distinguishes between a fixed‑term contract without a termination clause and
a contract with a termination clause providing for payment of a fixed amount. Observing
that employment law is governed by the law of contract, Mr. Justice Seaton
in
Neilson
closely analyzed the status of the contract once the employee
is refused continuing employment. He observed that the employees action then is
for damages, not remuneration, and that the employee is not entitled to treat
the contract as subsisting. Justice Seaton then turned to the issue of
mitigation. Without resolving whether there is a
duty
to mitigate, an
issue on which there are conflicting authorities based on competing theories, Justice
Seaton concluded that unless the contract provides otherwise, the employer
derives the benefit of mitigation, even in a fixed‑term contract. For
this conclusion, he relied on
Cockburn v. Trusts & Guar. Co.
(1917),
55 S.C.R. 264, 37 D.L.R. 701, which held at 703 that
even where an employee is under no duty to mitigate, the actual diminution of
his loss may be taken into account. After referring to
Br. Westinghouse
Elec. & Mfg. Co. v. Underground Elec. Ry. Co. of London
,
[1912] A.C. 673 (H.L.), Justice Seaton stated the general principle
that applies in British Columbia:

[14]      On this question I
conclude that whether or not the plaintiff was bound to mitigate is irrelevant.
He cannot recover for avoided loss in any case.

[37]

At the same time as stating the general principle applicable to
contracts that do not have fixed provisions for termination, Justice Seaton
recognized that the parties can agree to a term that compels a different result
on the effect of mitigating earnings, referring to a contract that may provide
otherwise.

[38]

Neilson
has been followed by this court in
Mosher v. Epic
Energy Inc.
, 2001 BCCA 253, and
Alsip v. Top Rollshutters Inc.
dba Talius
, 2016 BCCA 252. In addition,
Neilson
was relied
upon by Justice Major in
Wells v. Newfoundland,
[1999] 3 S.C.R. 199 at para. 65, for the proposition that
in a contractual claim, whether arising from a fixed‑term contract or
not, the usual rules of mitigation of damages apply.

[39]

The result of these authorities, in my view, is that in British
Columbia, on the authority of
Neilson
, the fixed‑term nature of a
contract does not entitle the employee to damages in the full amount of unpaid
wages for the balance of the term without deduction of monies earned elsewhere
during the term, absent a provision otherwise. In this way
Neilson
is at
odds with
Howard
but not
Bowes
.

[40]

I mention all of this lest the judges reference to
Howard,
and
our silence on it, be taken as agreement with the conclusion that in all cases
of fixed‑term contracts, mitigation of damages may not be considered.
Instead, I suggest the jurisprudence is to the effect that consideration of
mitigated damages will depend on the particular termination provisions of the
contract at issue.

[41]

In this case, of course, the contractual language in clause 4.1(b) expressly
establishes the amount of the payment owing to the employee by the employer
immediately upon termination of the employment by the employer. For that
reason, and applying the notion of otherwise provided allowed in
Neilson
,
the judges conclusion that the employee is entitled to damages equal to one
full year of earnings provides the correct remedy under the Fixed‑Term
Contract.

Disposition

[42]

I would allow the appeal to the extent only of setting aside the award
of aggravated damages.

The Honourable Madam
Justice Saunders

I agree:

The Honourable Mr. Justice Harris

I agree:

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. R.S.B.,

2020 BCCA 33

Date: 20200123

Docket: CA45663

Between:

Regina

Respondent

And

R.S.B.

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Provincial Court of British Columbia, dated December 12, 2017
(
R. v. R.S.B.
, Surrey Docket 221409-1-K).

Oral Reasons for Judgment

Counsel for the Appellant:

R.T. Gill

N.B. Wright, Articled
  Student

Counsel for the Respondent:

L.A. Chu

Place and Date of Hearing:

Vancouver, British
  Columbia

January 23, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2020

Summary:

The appeal is from
conviction of one count of sexual assault, the appellant having been acquitted
of five other offences charged on the same indictment. Credibility was the
central issue at trial. In convicting, the judge relied upon text messages sent
between the parties. The Crown agrees that the judge erred in his appreciation
of the timing and content of the messages and relied upon the mis‑appreciation
in his credibility assessment of the complainant and appellant. Held: Appeal
allowed, new trial ordered. The errors in respect to the text messages fatally
undermined the credibility assessments and thus the verdict.

[1]

SAUNDERS J.A.
: On December 12, 2017, the appellant was
convicted of one count of sexual assault of the complainant and acquitted of
five other counts: Counts 2, 3, and 5 of the indictment being assault of M.B.
in three different time periods; and Counts 4 and 6, being uttering a threat to
M.B. to cause death or bodily harm in two different time periods.

[2]

He appeals from the single conviction on Count 1.

[3]

Credibility was the central issue at trial. The complainant, M.B.,
testified that the events charged had occurred; the appellant testified,
denying all of the allegations central to the charges. On Count 2, the
judge found he was unable to decide who to believe, and acquitted the
appellant. In respect to Counts 3 and 4, the judge did not accept the
testimony of M.B. and acquitted the appellant. In respect to Counts 5 and 6,
the judge accepted the evidence of the appellant and rejected the evidence of
M.B., and accordingly acquitted the appellant.

[4]

On Count 1, the judge found the complainant is a credible witness
in relation to the circumstances of the sexual assault, rejected the
appellants denial, and found his testimony did not raise a reasonable doubt.

[5]

The judges rejection of the appellants evidence rested on two prongs:

1.

he rejected the appellants evidence that he did not go into a room in
which the sexual assault was alleged to have occurred; and

2.

he rejected the appellants evidence that he did not engage in sexual
intercourse with the complainant after late 2015.

[6]

On the second of these prongs, the judge said the appellants denial
that he had engaged in sexual intercourse with the complainant after late 2015
was inconsistent with text messages the appellant had sent to the complainant
on February 16, 2016, two months prior to the alleged offence. He
explained the inconsistency by quoting portions of the text messages and then
said: This exchange of text messages is inconsistent with [the appellants]
testimony that he ceased having sexual relations with [M.B.] in late 2015.
I do not accept his testimony on this issue. The judge also referred to other
text messages sent by the complainant on April 13, 2016 and by the
appellant on April 15, 2016, which the judge said were consistent
with the evidence of the complainant that the sexual assault occurred in mid
April 2016.

[7]

After conviction and before sentencing, the appellant applied to re‑open
the conviction phase of the trial, to allow him to cross‑examine the
complainant on statements made in her victim impact statement that he said were
inconsistent with evidence she proffered at trial. The judge dismissed that
application on the basis that the fourth criteria in
Palmer v. The Queen
,
[1980] 1 S.C.R. 759 was not met.

[8]

On appeal, the appellant contends the judge made a palpable and
overriding error of mixed fact and law in determining that the text messages
between the complainant and the appellant were corroborative of the
complainants testimony and inconsistent with the appellants testimony. He
contends as well, that the judge erred in rejecting his application to re‑open.

[9]

The Crown disputes error in the judges ruling dismissing the
application to re‑open, but agrees the judge made palpable and overriding
errors in his interpretation of the text message evidence that he relied upon
in his credibility assessments of the appellant and the complainant.

[10]

Applying the
Housen v. Nikolaisen,
(2002 SCC 3)
standard of review of palpable and overriding errors, described in
R. v.
Steward,
2018 BCCA 76, as errors that are obvious or plainly
seen, and which altered or may well have altered the result, I agree that
fatal errors in respect to the text message evidence are established, and as
they underpinned the judges assessment of the critical issue of credibility,
the assessments of credibility in respect to Count 1 are fatally flawed.

[11]

I will restrict myself to two errors in respect to the text message
evidence. First, the judge said that the text messages in February 2017
were inconsistent with the evidence of the appellant that he last had sexual
relations with M.B. in late 2015, and relied on that inconsistency in
assessing the appellants credibility.

[12]

On a plain reading of the February text messages, they simply are not
inconsistent with the appellants evidence as to when the parties last had
sexual relations, contrary to the judges finding of inconsistency that was one
of the bases given for finding the appellant lacked credibility.

[13]

Second, the judge erred in finding that the April 15, 2016
text messages corroborated the complainants testimony of the timing of the
sexual assault. Examination of those text messages shows that they were not
sent on April 15, 2016, as the judge said, but later in April, and
were different in nature than the judge described. That erroneous
interpretation of those text messages formed part of the judges reasoning in
assessing the complainants credibility.

[14]

I consider that both errors fatally undermine the verdict because they
are material to the assessments of credibility. I conclude that these are not
harmless errors and the verdict cannot be saved by the curative proviso in
s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C‑46
.

[15]

I would set aside the conviction and order a new trial.

[16]

FITCH J.A.
: I agree.

[17]

BUTLER J.A.
: I agree.

[18]

SAUNDERS J.A.
: The conviction is set aside and a new trial is
ordered.

[Submissions by counsel re: bail conditions]

The Honourable Madam Justice Saunders