Steward v. Berezan (2007), 238 B.C.A.C. 159 (CA);
393 W.A.C. 159
MLB headnote and full text
Temp. Cite: [2007] B.C.A.C. TBEd. MR.034
Martin Clive Steward (respondent/plaintiff) v. Ronald Glen Berezan and Gold Key Pontiac Buick (1984) Ltd. (appellants/defendants)
(CA033727; 2007 BCCA 150)
Indexed As: Steward v. Berezan et al.
British Columbia Court of Appeal
Donald, Newbury and Chiasson, JJ.A.
March 14, 2007.
Summary:
The plaintiff sued the defendants for damages for injuries suffered in a motor vehicle accident.
The British Columbia Supreme Court, in a decision at [2005] B.C.T.C. Uned. 853, allowed the action. The plaintiff was awarded $90,000 general damages, $70,000 for past income loss and $50,000 for loss of future earning capacity. The defendants appealed from the awards for past income loss and loss of future earning capacity.
The British Columbia Court of Appeal dismissed the appeal from the award for past income loss, but allowed the appeal with respect to the award for loss of future earning capacity. The court reduced the plaintiff’s damages by $50,000.
Damage Awards – Topic 492.1
Injury and death – General damage awards – Pretrial income loss – The plaintiff was awarded damages in connection with injuries suffered in a motor vehicle accident, including $70,000 for past income loss – The defendants appealed from the award for past income loss, arguing that the trial judge did not hold the plaintiff to the burden of proving the fact of the loss and the amount – The British Columbia Court of Appeal dismissed the appeal – The evidence did not compel the conclusion that the result could only have been arrived at by an erroneous approach to the burden of proof – Generally speaking, the plaintiff did not enjoy the same increase in his earnings in a rising market as the other realtors used for comparison – There was a sufficient basis in the record supporting the plaintiff’s claim for past income loss in the amount awarded – See paragraphs 4 to 7.
Damages – Topic 1549
General damages – General damages for personal injury – Impairment of earning capacity – The trial judge awarded the plaintiff damages in connection with injuries suffered in a motor vehicle accident, including $50,000 as “compensation for the impairment of his earning capacity in other occupations that may now be closed to him” – The British Columbia Court of Appeal set aside the award for loss of future earning capacity – When the trial judge referred to “other occupations that may now be closed to him” she must have meant the plaintiff’s former occupation as a journeyman carpenter as the record disclosed no other realistic alternative – The plaintiff was a realtor and there was no evidence that he contemplated a return to carpentry – The plaintiff bore the onus to prove a substantial possibility of a future event leading to an income loss – Based on the record, the court could not see the basis for a substantial possibility giving rise to compensation for diminished earning capacity – There being no other realistic alternative occupation that would be impaired by the plaintiff’s injuries, the claim for future loss had to fail – See paragraphs 9 to 19.
Practice – Topic 8817
Appeals – General principles – Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment – The defendants appealed from the award made to the plaintiff for past income loss, arguing that the trial judge did not hold the plaintiff to the burden of proving the fact of the loss and the amount – The burden of proof error was said to be manifest by an absence of reasons – The British Columbia Court of Appeal dismissed the appeal – The evidence did not compel the conclusion that the result could only have been arrived at by an erroneous approach to the burden of proof – While the trial judge’s reasons relating to past income loss were brief, the failure to discuss a relevant factor in depth, or even at all, was not itself a sufficient basis for an appellate court to reconsider the evidence – The omission was only a “material error” if it gave rise to the “reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected [the] conclusion” – That test was not satisfied – See paragraph 8.
Cases Noticed:
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].
K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 8].
Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (C.A.), refd to. [para. 16].
Parypa et al. v. Wickware et al. (1999), 119 B.C.A.C. 32; 194 W.A.C. 32; 169 D.L.R.(4th) 661 (C.A.), refd to. [para. 16].
Counsel:
M. Wright and J.W. Joudrey, for the appellants;
F.A. Schroeder, for the respondent.
This appeal was heard on March 5, 2007, at Vancouver, British Columbia, before Donald, Newbury and Chiasson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Donald, J.A., on March 14, 2007.
