Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.
This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – Law360™ Canada – Posted: April 22, 2024
A motor vehicle collision occurred on August 6, 2018, injuring both motorists. The appellant was not satisfied with the outcome of the trial and appealed. She alleged that the respondent and an independent witness colluded to lie to the court and place the blame for the collision on her. Her appeal was dismissed, and she was ordered to pay ordinary costs to the respondent.
Trial decision
Alexander Shamtanis started a lawsuit against Silja Leung for the damages he sustained in the collision. Leung counterclaimed against Shamtanis, claiming that he was responsible for the collision.
The main action was resolved, and the counterclaim proceeded to trial. Three witnesses were called at trial: Shamtanis, Leung and an independent witness.
Shamtanis and the independent witness testified that Shamtanis was driving eastbound through an intersection on a green light. They testified that Leung was driving northbound through the intersection on a red light. The independent witness was facing westbound at the intersection and saw the east-west lights turn green before Shamtanis entered the intersection. The independent witness further testified that there were other stopped vehicles in the north and southbound lanes.
Leung testified that she did not run a red light and that the independent witness was not, in fact, independent but had been a passenger in Shamtanis’s vehicle. She argued that they colluded to blame Leung for the accident.
The trial judge rejected Leung’s evidence and accepted the corroborated evidence of Shamtanis and the independent witness. The trial judge found that Leung was 100 per cent responsible for the collision and dismissed her cross-claim.
Leung appealed.
The appeal
In Shamtanis v. Leung 2024 BCCA 12, the appellant argued that the trial judge made multiple errors in dismissing her counterclaim. She alleged:
- the judge did not take an objective approach to the evidence, and he ignored evidence that was helpful to the appellant’s case;
- the evidence that was ignored by the judge not only established that the respondent was at fault for the accident, but also that he and the independent witness lied in their evidence, thereby committing perjury, and were engaged in a fraudulent scheme to wrongly cast blame on the appellant; and
- the judge erred in finding that the appellant had not established that she had suffered damages that were causally related to the accident.
The standard of review was palpable and overriding error unless it was clear that the judge made an extricable error in principle. This standard applies to appellate review of inferences drawn by a trial judge and to findings of credibility. It is not the role of an appellate court to retry the case or to substitute its views of the evidence for the views of the trial judge.
The appellant argued that there were inconsistencies in the respondent and witnesses’ testimony that were not considered by the trial judge. For example, the police report did not mention the injuries the respondent sustained in the collision, the witness’s statement about where the vehicles collided with each other was different at the time of trial and there was inconsistent evidence about where the respondent parked after the collision.
The Court of Appeal was satisfied that the trial judge made the necessary findings of fact based on the evidence as a whole. He fully explained his reasons for his credibility findings that the appellant was 100 per cent responsible for the collision. There were no legal errors in his analysis or palpable or overriding errors.
Costs
The respondent sought special costs against the appellant for her conduct in the appeal. Special costs are intended to chastise a party for reprehensible, scandalous or outrageous conduct, whether in the circumstances giving rise to the cause or action, or in the course of litigation.
The respondent sought special costs because the appellant accused him and the independent witness of perjury and fraud without evidence. The Court of Appeal noted that it was open to the appellant to challenge the credibility of the other witnesses, but that her allegations of perjury and fraud clearly go beyond a mere challenge to credibility.
The Court of Appeal declined to award special costs because the appellant was self-represented and did not understand the court process. Ordinary costs were awarded to the respondent.
Takeaway
The court will give some leeway to self-represented litigants for otherwise improper conduct. The appellant’s arguments on appeal were a function of her genuinely held belief that the outcome of the trial was unjust, combined with her lack of understanding of the court process. In these circumstances, her conduct was not considered so egregious as to warrant an award of special costs.