This decision, in Davis v. Jeyaratnam, 2022 BCCA 273 is “one of those rare situations where the Court of Appeal interferes with a trial judgment based on findings of fact,” said Dan Griffith, a partner with ATAC Law Corp. in Burnaby, B.C. “That’s quite uncommon. Most appeals that are successful are based on pure errors of law.”
As a result, “I wonder if we’re going to see more appeals on that basis. I think most lawyers, when they see a case where the judge got the facts wrong, don’t want to appeal it because the odds of succeeding and convincing the court that the judge got the evidence wrong, or considered it incorrectly, are so unlikely unless there’s a clear error of law. So this does perhaps breathe a new hope into those cases,” said Griffith.
Dan Griffith, ATAC Law Corp.
Davis testified he was cycling in the dedicated bike and bus lane and as he approached the intersection, Jeyaratnam’s car accelerated and struck him, throwing him over the handlebars of his bike.
Jeyaratnam testified Davis rode in front of him after riding on the sidewalk, with his vehicle stopped. He claimed Davis, startled, jumped off, shoving the riderless bike into the car. Jeyaratnam drove Davis to a bicycle shop to determine if his bicycle could be repaired. Jeyaratnam videotaped Davis walking to the vehicle and placing his bicycle in the trunk, in which he did not appear in physical distress.
Davis went to Vancouver General Hospital later that day, where he was diagnosed with a minor head injury, pain in his right shoulder and left heel and knee and swelling of his left foot and knee. A follow-up with his family physician revealed several medical issues, including: whiplash, a vertebral wedge fracture, pain in the neck, shoulders and upper back, a minor concussion, and post-concussion syndrome, as well as depression, anxiety and post-traumatic stress disorder, among others.
Several non-medical people who knew Davis also testified about the injuries he had suffered.
Trial judge Shelley Fitzpatrick concluded in her Supreme Court of British Columbia ruling in Davis v. Jeyaratnam, 2019 BCSC 1698 that Davis’ family doctor was not an expert in concussion or mild traumatic brain injury (even though he was also the medical director for Boxing BC).
The Court of Appeal decision, written by Justice Elizabeth Bennett, noted that even setting aside that diagnosis, the family doctor had reported “considerable evidence of injury consistent with being struck by a vehicle, which was within his level of expertise.” It also noted that Justice Fitzpatrick did not refer to the report from the Vancouver General Hospital the night of the incident.
Another key element of the trial court decision involved evidence, or lack thereof. Shortly after the incident, a taxi driver named Abdi Isse gave Davis his name and phone number, and said he would serve as a witness if called upon. A month after the incident, Davis retained Ian Carter, a retired police officer to interview Isse. At trial, Carter testified he had interviewed and recorded Isse, but had lost the tape recording. He was only able to produce a copy of a draft statement with several handwritten changes. The original signed document was lost.
Justice Fitzpatrick dismissed Davis’ claim, ruling that his negligent actions were solely responsible. She said Davis had been cycling on the sidewalk and was negligent in operating his bicycle when he encountered the Jeyaratnam vehicle, which had been travelling at low speed and had come to a stop as Davis approached. Justice Fitzpatrick found that Davis’ recollections had been designed to advance his interests, citing a history of selectively withholding medical information for the purposes of litigation, and she considered his evidence neither reliable nor credible.
This was in contrast to Jeyaratnam, and the other two occupants of his vehicle, both family members, whose evidence Justice Fitzpatrick found credible and reliable. She agreed with the defendants’ testimony that Davis had leapt from the bicycle, sending the riderless bike careering into the car.
She also expressed concern about the reliability of Isse’s statement, which had been excluded, noting how it did not specify whether Davis was riding in the bike lane or on the sidewalk, nor whether when the bike collided with the vehicle, Davis was still on it.
Davis raised three issues on appeal. He submitted that Justice Fitzpatrick erred in law by excluding portions of Isse’s written statement for the truth of its contents. Second, he alleged she erred in fact by misunderstanding Isse’s statement. Third, that she “erred in mixed law and fact by focusing on the competing narratives of the accident without regard to the evidence as a whole, failing to assess the relevance of uncontradicted and material evidence.”
The Court of Appeal ruling released Aug. 5 noted there was considerable evidence arising after the accident that Davis had been injured, but that the only evidence of injury Justice Fitzpatrick referred to was to accept medical evidence indicating injuries to his left leg, consistent with being hit by a vehicle. She also noted that those injuries might have been caused by Davis hitting the ground after he jumped off the bicycle.
Failure to consider that large body of important evidence resulted in a material error, because it gave rise to a reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way that affected her conclusion, wrote Justice Bennett, in a decision supported by Justices Lauri Ann Fenlon and Christopher Grauer.
“The trial judge committed reversible error in failing to conduct the proper analysis and overlooking a significant body of evidence that could have weighed in favour of Mr. Davis’ version of events and his ultimate credibility,” said the ruling.
“Whether it is an error in law or a palpable or overriding error of mixed fact and law, the result is the same. Had the judge considered the evidence, she may have come to a different conclusion regarding Mr. Davis’ evidence, the question of whether he collided with the Jeyaratnam vehicle at all, and the issue of whether he was riding his bicycle on the sidewalk,” it noted.
“The decision was very welcome,” said Ryan Dalziel, principal of Dalziel Law in Vancouver, and counsel for the appellant, Davis.
Dalziel said the major issues reflected in the judgment are about “threshold reliability” in deciding whether to admit hearsay evidence, and about the fact-finding process more generally. With respect to hearsay, the court’s core point was that at the threshold reliability stage for admissibility, it is an error to focus on the reliability of the witness giving evidence about the out-of-court statement. At that stage, the focus needs to be on the reliability of the hearsay statement itself, he noted.
“This hearsay ruling will be of interest in civil and criminal cases, for lawyers and judges alike, since it is very clear and direct about how threshold reliability works, and doesn’t work, in this context,” Dalziel elaborated.
Regarding the fact-finding process, “the court’s basic point was that evidence of injury can be corroborative of an injured person’s narrative, and can’t be left entirely unaddressed by a trial judge at the liability stage. Approaching credibility essentially as a ‘he-said/he-said’ contest may not be appropriate, and indeed can warrant appellate intervention, when evidence of injury or other post-event factors are potentially probative,” said Dalziel.
At a practical level, one instructive aspect of this case for other personal injury cases is that there may be very good reasons not to sever liability from damages, if both are at issue, he added.
There is a lot of criminal case law about how to deal with different types of hearsay evidence such as jailhouse informants, but this doesn’t come up nearly as often in other types of files, said Griffith. “So I think it is helpful that the Court of Appeal provided guidance to trial courts and also to lawyers about how that type of statement reliability should be assessed and what the process is for determining that is admissible,” he explained.
The facts that the witness couldn’t be located, his tape recording of events disappeared, and the notes of the investigator were very sparse — “that, on its face, doesn’t strike me as evidence that should be admitted, and I think that the trial judge was well within her rights not to admit it,” said Griffith, who noted it is still unclear what actually happened.
“It could very much be that when this is remitted for a new trial, we have exactly the same result. I don’t think that Mr. Davis is by any means off the hook,” Griffith said.
Michael Scott, Filkow Law
“It seems there was a significant body of evidence from medical professionals and third parties that supported the plaintiff’s version of events. I was not left with that impression after reading the trial court decision. There seems to have been a large focus on the hearsay statement by the trial judge in her reasons,” said Scott.
“While I agree with her assessment of the ultimate reliability of the hearsay statement, the medical and third-party evidence noted by the Court of Appeal seems to strongly support the plaintiff’s version of events, independent of her findings that the hearsay statement and plaintiff lacked credibility and reliability,” he elaborated.
Scott said this decision can be instructive for lawyers, as corroboration of a client’s version of events can clearly be persuasive and attention needs to be turned to securing third-party evidence at the earliest opportunity. In this case, “Mr. Isse’s statement could have been better evidenced and disclosed during discovery, which may have altered settlement discussions and/or the result at trial,” he speculated.
Griffith believes this case is instructive because it makes clear that appeals on the basis of factual findings can be brought successfully.
“Even if they’re difficult to bring it may be worth attempting to appeal those trial decisions where it appears that the judge didn’t properly assess or understand all of the evidence before him or her. So that is quite helpful. It is also helpful that the civil bar, and personal injury lawyers in particular, have more guidance on how to deal with out-of-court statements, such as the statement of the taxi driver in this case,” he explained.
Counsel for the respondents did not reply to interview requests from The Lawyer’s Daily.