Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Peppler Estate v Lee, 2020 ABCA 282
Appeal | Standard of Review | Credibility Assessment
This was an appeal of a medical malpractice claim that was dismissed. The Court of Appeal confirmed that on causation issues, a Trial Decision is entitled to deference:
 Causation is a question of fact to be determined on a balance of probabilities, and a trial judge’s finding on causation is owed deference on appeal. The ordinary rules of causation are applied in medical malpractice cases, including that an inference of causation may be drawn although positive or scientific proof has not been proven or adduced. “Whether an inference of causation is warranted, and how it is to be weighed against the evidence, are matters for the trier of fact”: Benhaim v St-Germain, 2016 SCC 48 at paras 36, 42, 44-47,  2 SCR 352; KS v Willox, 2018 ABCA 271 at paras 32-35, leave to appeal dismissed 2019 CanLII 32860 (SCC).
On findings of fact, the standard of review is palpable and overriding error. In this case the Plaintiff died before Trial, and his credibility was assessed using other evidence. The Plaintiff argued that a different standard should apply, because he did not testify. The Court of Appeal disagreed and directed that oral testimony is only one factor in considering a claimant’s credibility:
 While the trial judge’s lack of opportunity to observe Peppler testify in person is one of the factors to consider in assessing her conclusions as to credibility and reliability, it is not a sufficient reason to apply a standard other than palpable and overriding error. The trial judge had the opportunity to become familiar with the significant quantity of evidence in this trial, including that from several expert witnesses, and to weigh the evidence as a whole in coming to her extensive conclusions: see Housen v Nikolaisen, 2002 SCC 33 at paras 12-18,  2 SCR 235.