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Bumstead v. Dufresne
Defence + Indemnity

The Court of Appeal upheld a trial judgment based on significant plaintiff credibility issues awarding less than $300,000 in the face of a $2,000,000 claim.  

Bumstead v. Dufresne, 2017 ABCA 122 [4236]

I. FACTS AND ISSUES
 
This judgement involves an appeal regarding the decision of Madam Justice Horner, December 10, 2015, Supplemental Reasons April 29, 2016, in Bumstead v. Dufresne, 2015 ABQB 787 (CanLII) (the “Queen’s Bench Decision”. The fact, issues, and analysis of the Queen’s Bench Decision have been provided in the June 2016 edition of Defence and Indemnity.
 
The Respondent admitted liability for the accident, which involved a rear end collision on a secondary highway near Cochrane. Neither party required emergency medical treatment at the scene.
 
The Trial Judge found, based on the expert evidence, that it was a relatively minor accident and that the Respondent’s lighter vehicle probably struck the appellant’s pickup truck at about 4 to 7 km/hr (reasons paras. 82-3, 290).
 
Surveillance evidence, introduced by the defense at the Trial, was significant in the Trial Judge’s assessment. The surveillance evidence showed the Applicant working in awkward positions replacing the brakes on his vehicle in a back alley over a period of approximately three hours one day without assistance. The day of the Applicant doing the brake replacement is the date the Trial Judge held the Plaintiff was no longer disabled. The trail judge found that the Plaintiff was not credible.
 
 The Trial Judge criticized some Applicant’s experts for failing to reassess and adjust their opinion when they were confronted with new evidence.
 
The Trial Judge made a ruling with respect to costs in this matter. The Applicant had multiple experts in several areas of expertise. The Judge limited the recovery for the costs of those experts. In particular, only one of two psychology experts’ costs were allowed. Of four Plaintiff medical experts’ costs, only two were to be allowed.
 
II. HELD: For the Defendant; appeal allowed; the Applicant had not demonstrated any reviewable error.

1.   The Court held that the Trial Judge’s findings were entitled to deference

(a)   This appeal was, to a large extent, a challenge to the fact and credibility findings of the Trial Judge. The Court of Appeal stated that those findings are entitled to deference on appeal, and they will not be overruled unless they reflect palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII) at paras. 10, 23, [2002] 2 SCR 235; H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII) at para. 74, [2005] 1 SCR 401.

(b)   “The Trial Judge had the advantage of hearing all of the witnesses testify, her findings are supported by the record, and there is no basis for appellate intervention. The few acknowledged misstatements about details in the evidence are not sufficient to undermine the Trial Judge’s basic findings on the appellant’s credibility and his actual injuries (Para. 7.)”

2.   The Trial Judge did not apply the wrong burden of proof.

(a)   The appellant argued that he was not required to prove his case to a “certainty”. The appellant noted that the Trial Judge’s reasons stated:

I cannot conclude with certainty that the Plaintiff has accurately and honestly presented his treatment providers with a reliable description of his symptoms and condition. As a consequence, his ability to prove on a balance of probabilities that he suffers from disabling chronic pain such that he has not been able to work and cannot in the future work in any capacity is significantly undermined.

(b)   However, the Court of Appeal held that this one phrase in the lengthy reasons cannot be interpreted out of context. This passage primarily summarizes the findings on credibility, and is not directed at the burden of proof. The Court of Appeal noted that “[The Judgment] goes on to refer to the “balance of probabilities” test, and the test is correctly stated elsewhere in the judgment: reasons at paras. 266, 267, 284, 319, 392”

3.   It was not an error of law for the Trial Judge to discount evidence of the experts that depended on the subjective reporting of symptoms by the appellant subsequent a finding that the appellant is not credible.

(a)   The appellant argued that the Trial Judge “ignored evidence” of some of his health care providers. The Court of Appeal held that it was correct that the Trial Judge discounted some of the evidence if it was based on the appellant’s report of his symptoms, unless it was corroborated by other evidence, but this did not amount to ignoring evidence:

[9]   The appellant also argues that the trial judge “ignored evidence” of some of his health care providers. As indicated, the trial judge discounted some of the evidence if it was based on the appellant’s report of his symptoms, unless it was corroborated by other evidence. Again, given the findings of credibility, this line of analysis does not disclose any reviewable error. Assigning little weight to evidence, or preferring some evidence over other evidence, is not the same thing as ignoring evidence. Specifically, it was not an error of law for the trial judge to discount evidence of the experts that depended on the subjective reporting of symptoms by the appellant: Loveridge v. British Columbia, 2007 BCCA 425 (CanLII) at para. 11, 70 BCLR (4th) 215. Further, the trial judge did not reject all non-objective evidence, she only discounted non-objective evidence that depended on the appellant’s subjective reporting of his injuries. The appellant had ample opportunity to raise the issue of the partial denial of his expert disbursements with the Trial Judge and therefore it is not appropriate to consider this issue for the first time on appeal.

4.   The appellant called numerous expert witnesses at trial. The Trial Judge found this evidence to be unhelpful, and limited his entitlement to costs to one expert in each field of expertise: reasons at para. 394.

(a)   The Court of Appeal provided: The appellant fairly argues that this limitation on his expert disbursements should not have been imposed without him being given an opportunity to address the issue. The opportunity to present argument on outstanding issues is an essential component of our civil procedure: Delta Hotels Limited v. Okabe Canada Investments Company Limited, 1992 ABCA 176 (CanLII), 3 Alta LR (3d) 85 at paras. 13-4; Central Credit Union Limited v. Lewis, 2014 PECA 1 (CanLII) at para. 97, 346 Nfld & PEIR 248; Lanigan v. Prince Edward Island Teachers’ Federation, 2017 PECA 3 (CanLII) at para. 96.

(b)   The Court of Appeal noted that the parties subsequently appeared before the Trial Judge to resolve some mathematical issues, to speak to costs, and specifically to discuss expert disbursements.

III. COMMENTARY

This judgement is helpful in providing the result of negative credibility findings. This judgement confirms that a finding of negative credibility can be used to discount or otherwise decrease the weight the court will place on expert reports that are in part based on subjective complaints.

The evidence in the Queen’s Bench decision challenging the Plaintiff’s credibility was particularly strong. There will be few other cases where there will be so many bases upon which a Trial Judge can be invited to find that the Plaintiff’s evidence is not credible.
 
The judgment is also useful as it confirmed the Trial Judge’s direction that not all experts retained and called by the Plaintiff are necessarily going to be reflected in the Bill of Costs payable by the Defendant.

Counsel for the Defence at trial and on appeal was Doreen Saunderson of our Calgary office.

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