Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Balogun v Pandher, 2021 ABCA 422
Appeal of Trial | Causation | Damages | Costs | Misconduct
The Plaintiff was injured in a motor vehicle accident and liability was summarily determined. Following a three week trial, the Plaintiff was awarded various damages. Certain costs were awarded to the Plaintiff as well, but as the Defendant submitted an offer that was higher than the Plaintiff’s trial award, the Defendant was awarded costs after the point at which the offer was made. The Plaintiff appealed both the damages and costs awards; the Defendant cross-appealed the costs awards and applied to admit new evidence.
The first aspect of the Plaintiff’s appeal was that the trial judge erred in her causation analysis. Regarding the Plaintiff’s shoulder injury, the trial judge favoured the opinion of the Defendant’s expert who opined that the evidence did not support the shoulder injury having been caused by the accident. The Court of Appeal noted that they will only intervene with a trial judge’s preference of an expert’s opinion if the judge’s decision was unreasonable, otherwise deference is owed:
[17] Findings with respect to causation involve questions of fact and are reviewed for palpable and overriding error: Salomon v Matte-Thompson, 2019 SCC 14 at para 32. We see no reviewable error in the trial judge preferring the opinion of Dr DiPersio and her ultimate conclusion that the shoulder injury was not caused by the accident. Her conclusion is well supported by the record.
The trial judge also refused to award damages for an alleged hip injury, again relying on the opinion of the Defendant’s expert that the evidence did not support such an injury arising out of the accident.
Further, the Plaintiff claimed he suffered PTSD as a result of the accident. The Court of Appeal noted there was little evidence on the record supporting this claim. Treatment records from a psychiatrist were submitted, but that psychiatrist had passed away prior to trial and did not appear. The Court noted that the psychiatrist’s records indicated the examination of the Plaintiff had not been completed. Additionally, the Plaintiff gave evidence in questioning that he was told by the psychiatrist that he did not have PTSD. As a result, the Court of Appeal found no reviewable error in the decision of the trial judge to not award damages for PTSD or the Plaintiff’s hip injury.
The trial judge did award $80,000 in damages for the injuries found to have been caused by the accident, which were cervical strain and whiplash, hand/arm strain, headaches, and a TMJ injury. The Court of Appeal found no error in this award:
[28] Assessment of non-pecuniary damages for personal injury features both logic and good judgment – the exercise of judicial discretion. Having regard to the standard of review, we are not persuaded that the trial judge misapprehended the evidence or arrived at a wholly erroneous amount.
On the question of the Plaintiff’s loss of income and earning opportunity, the trial judge found that the Plaintiff missed two weeks of work after the accident and awarded 40 hours per week at the Plaintiff’s $50 hourly rate. A further $20,600 was awarded for the 412 hours the Plaintiff spent attending appointments and dealing with the consequences of the accident, but claims for impairment to the Plaintiff’s work performance and loss of enjoyment of life at work were denied, since the general damages award covered them.
The Plaintiff argued on appeal that he should have been compensated for a longer period of time and that the trial judge erred in determining his hourly rate. The Court of Appeal noted that the evidence of the Plaintiff’s pre-accident income was minimal and the trial judge came to a reasonable conclusion based on the evidence available. In addition, the evidence from the Plaintiff himself in a proof of loss confirmed that he returned to work two weeks after the accident. As such, the Court of Appeal found no error in the trial judge’s conclusions.
Regarding loss of business opportunity, the Plaintiff claimed that his corporation lost an opportunity with an angel investor and substantial earnings that would have followed. The trial judge held that there was no causal link establishing that the opportunity was lost as a result of the accident and the Court of Appeal found no error in this decision:
[38] The evidence adduced by Mr Balogun in support of this “angel investor” was a series of emails between Capital Solutions Network and Mr Balogun in early 2003, together with some preliminary budgets and business plans, seeking $3,000,000 USD in capital. The documents contemplated a subscription agreement and the payment of a fee, neither of which occurred. Mr Balogun did not tender any evidence from Capital Solutions Network, or of any proposed investor or of any of the proposed employees. Mr Balogun did not adduce expert evidence to quantify this alleged loss.
[39] Mr Balogun did not meet the burden upon him to establish the loss. The trial judge found that there was no satisfactory evidence to establish that the “angel investor” was anything more than a possibility. It is not our role to reweigh the evidence. The trial judge’s conclusion is well supported by the record. This ground of appeal is dismissed.
Several other areas of appeal were advanced, but the Court of Appeal found no errors in the trial judge’s awards. These included costs of a rental vehicle, future cost of care, and out of pocket expenses:
[43] The trial judge found that most of Mr Balogun’s accident-related injuries had resolved by 2007, but that the TMJ injury continued. She awarded approximately $5,000 in cost of future care for splint maintenance in respect of the TMJ injury and $915 for the cost of a TMJ injury consultation.
[44] On appeal Mr Balogun seeks $50,160 for future physiotherapy treatments, medication, injections and gym memberships. Again, this is just a re-argument and not the proper basis for an appeal. These are findings of fact supported by the record.
[45] The trial judge awarded $5,845.79 for out-of-pocket expenses. This included prescriptions, chiropractic care, physiotherapy and costs related to an apartment in Texas where Mr Balogun had been working before the accident. The trial judge denied several out-of-pocket expenses related to household items (a snowblower, a vacuum and a mattress) and exercise equipment. She found that the purchase of the snow blower and a vacuum in 2008 were needed as a result of the shoulder surgery and not the accident and that there was no medical evidence linking the purchase of a mattress in 2010 to the accident. She similarly found that the cost of the exercise equipment claimed was not recoverable as there was no evidence to suggest the purchases were related to the accident. These are findings of fact supported by the evidence and we are not persuaded of any reviewable error.
The Plaintiff also argued that the trial judge failed to consider relevant evidence in assessing damages and ought to have admitted several medical reports. One of these was an IME report requested by the Defendant, though the Defendant did not rely upon it because that physician passed away. The Plaintiff sought to have that IME admitted because some of his expert reports referred to that particular IME. The trial judge declined to admit that IME because the author was not able to testify at trial.
The Plaintiff also attempted to have a medical report by a family physician entered. The trial judge declined as the physician was not being called to testify at the trial. The same decision was made with respect to a physiotherapist who had treated the Plaintiff but would not be testifying. Additionally, the trial judge declined to enter a chiropractor report because no Form 25 had been served with respect to that report. The Court of Appeal found no error in any of these decisions:
[55] We are not persuaded that the trial judge ought to have admitted the medical reports authored by Dr MacMillan, Dr Baergen, Ms Grant and Dr Berg. A trial judge’s admission or rejection of expert evidence is owed deference and we see no basis upon which this court should interfere with the trial judge’s rulings.
[56] A party who intends to rely on an expert’s report at trial must serve the other parties with that report in Form 25: Alberta Rules of Court, Rules 5.34 and 5.35. Form 25 states that an expert’s report must contain, at a minimum, the expert’s name and qualifications, the information and assumptions on which the expert’s opinion is based, and a summary of the expert’s opinion. As the trial judge correctly noted, this information provides the opposing party with notice of the expert’s qualifications and his or her opinion evidence.
[57] A party serving an expert report may also serve a notice of intention to have the report entered as evidence without calling the expert as a witness. If such a notice is served, no objection may be made at trial to entering the expert’s report as evidence unless, within two months after service of the notice, any other party objects to the report being entered as evidence or requests that the expert attend the trial for cross-examination. Agreeing to have the expert’s report entered as evidence without calling the expert as a witness is not an admission of the truth or correctness of the expert’s report: Alberta Rules of Court, Rule 5.39.
[58] If Mr Balogun had intended to rely upon the reports of Dr MacMillan, Dr Baergen, Ms Grant and Dr Berg, it was incumbent upon him to serve Mr Pandher’s counsel with Form 25s pursuant to the Alberta Rules of Court. He failed to do so.
[59] In refusing to admit the reports of Dr MacMillan, Dr Baergen and Ms Grant, the trial judge was concerned that these experts could not be cross-examined on the opinion evidence found within their reports since they were not being called as witnesses. With respect to Dr Berg, the trial judge did not permit his report to be entered as he was being called as a lay witness, not an expert. We see no error in the trial judge’s refusal to admit the reports of these four practitioners who were not called as expert witnesses and whose reports were not properly served pursuant to the Alberta Rules of Court.
Accordingly, the damages appeal was entirely dismissed.
With respect to costs, the trial judge noted that the Defendant had made five offers, three of which exceeded the Plaintiff’s recovery at trial. Despite being self-represented, the trial judge awarded costs to the Plaintiff for steps up to the time at which the first offer exceeding the trial result was advanced. The Court of Appeal started the analysis by confirming that costs awards are discretionary:
[66] Costs awards are discretionary. An appellate court may and should intervene where it finds a misdirection as to the applicable law, a palpable error in the assessment of the facts, or an unreasonable exercise of the discretion: McAllister v Calgary (City), 2021 ABCA 25 at paras 17-18.
The Plaintiff argued that he submitted an offer back in 2003 and that should entitle him to additional costs. The Court of Appeal concluded that his offer was not a genuine offer, as it did not propose to settle the non-pecuniary damages, which was the most contentious aspect of the claim, and was only open for 2.5 hours prior to an application, which did not give the Defendant sufficient time to assess it.
The Defendant also appealed, and applied to admit new evidence in the form of an affidavit to demonstrate factual errors in the trial judge’s decision on costs. The Court of Appeal noted that the trial judge’s decision on costs was based on written submissions, and since the affidavit was not technically ‘new’ evidence, in the sense that it was available to the trial judge, the affidavit was admitted.
One aspect of the costs decision was that the trial judge found the Defendant to have engaged in tactics to delay or obstruct the action, and that the Defendants took advantage of the Plaintiff’s filing several ‘update’ affidavits to cross-examine on many of them, such that they had more opportunities to question the Plaintiff than they otherwise would have. The Court of Appeal, however, determined that the Plaintiff was never cross-examined on any of the ‘update affidavits’ and there was no basis in the evidence that the Defendant had engaged in any misconduct.
The trial judge relied on the finding of misconduct to reduce the Defendant’s costs from column 4 to column 2. Given no finding of misconduct was warranted, the Court of Appeal granted the Defendant’s appeal and held that the Defendant was properly entitled to costs in column 4.