Swanson v. MacKinnon

2024 BCCA 95 Swanson v. MacKinnon

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Swanson v. MacKinnon, 2024 BCCA 95 Date: 20240311 Docket: CA48662 Between: Lois Della Swanson Appellant (Defendant) And Neil MacKinnon Respondent (Plaintiff) Corrected Judgment: The text of the judgment was corrected at paragraph 49 on March 12, 2024. Before: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler The Honourable Mr. Justice Grauer On appeal from: An order of the Supreme Court of British Columbia, dated October 18, 2022 (MacKinnon v. Swanson, 2022 BCSC 1821, New Westminster Docket M219108). Counsel for the Appellant: S.F. Hoyer R.W. Parsons Counsel for the Respondent: J. Woods Place and Date of Hearing: Vancouver, British Columbia October 31, 2023 Place and Date of Judgment: Vancouver, British Columbia March 11, 2024 Written Reasons by: The Honourable Mr. Justice Grauer Concurred in by: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler Summary: The appellant seeks a new trial on the basis that the trial was unfair. The respondent plaintiff was awarded damages for injuries sustained in a motor vehicle accident. The appellant contends, among other things, that the judge improperly elicited assertive and responsive opinion evidence at trial from expert witnesses and intervened in troubling ways by making critical comments that indicated a prejudgment of the case on its merits. Held: Appeal

dismissed. While some of the impugned actions assessed on their own were problematic, these actions did not cause the trial to be unfair when viewed cumulatively in the context of the entire record. An impartial observer would not conclude otherwise. Table of Contents Paragraph Range 1. INTRODUCTION [1] - [13] 2. PRINCIPLES [14] - [24] 3. FIRST CATEGORY: BREACHING THE PRINCIPLE OF PARTY PRESENTATION? [25] - [87] 3.1 Eliciting new evidence, including new assertive expert evidence re "shaking" [25] - [48] 3.1.1 The impugned interventions [25] - [31] 3.1.2 The appellant's position [32] - [36] 3.1.3 Some observations [37] - [48] 3.2 Eliciting new assertive expert evidence about relative likelihood in the form of percentages [49] - [77] 3.2.1 Overview [49] - [53] 3.2.2 The expert evidence [54] - [58] 3.2.3 The impugned interventions [59] - [64] 3.2.4 The appellant's position [65] - [67] 3.2.5 Some observations [68] - [77] 3.3 Eliciting "new responsive expert evidence" [78] - [87] 3.3.1 Overview [78] - [80] 3.3.2 The impugned intervention [81] - [81] 3.3.3 The appellant's position [82] - [83] 3.3.4 Some observations [84] - [87] 4. SECOND CATEGORY: COMMENT INDICATING PREJUDGMENT OF THE MERITS? [88] - [94] 4.1 The impugned comment [88] - [90] 4.2 The appellant's position [91] - [91] 4.3 Some observations [92] - [94] 5. THIRD CATEGORY: CONFLATING THE TORT DEFENDANT WITH HER

INSURERS? [95] - [107] 5.1 Overview and appellant's position [95] - [98] 5.2 The impugned comments [99] - [102] 5.3 Some observations [103] - [107] 6. FOURTH CATEGORY: ENHANCING MR. MACKINNON'S CLAIM? [108] - [118] 6.1 Overview and appellant's position [108] - [109] 6.2 The impugned comments [110] - [114] 6.3 Some Observations [115] - [118] 7. DISCUSSION [119] - [158] 7.1 The cumulative effect of the interventions -- unfair? [119] - [150] 7.1.1 Overview [119] - [120] 7.1.2 Some relevant factors [121] - [141] 7.1.3 The second, third and fourth categories [142] - [145] 7.1.4 Conclusion [146] - [150] 7.2 Errors of law? [151] - [158] 8. DISPOSITION [159] - [159] Reasons for Judgment of the Honourable Mr. Justice Grauer: 1. INTRODUCTION [1] This appeal concerns trial fairness. [2] The respondent (plaintiff), Mr. MacKinnon, claimed against the appellant (defendant), Ms. Swanson, for damages he allegedly sustained as a result of injuries suffered in a motor vehicle accident that occurred on May 3, 2018. Ms. Swanson admitted liability but disputed the nature and extent of Mr. MacKinnon's injuries, and alleged a failure to mitigate. [3] The most significant injury claimed by Mr. MacKinnon was a disabling somatic symptom disorder that he claimed prevented him from working at his job as a civil engineering technologist. He supported his claim with evidence from lay witnesses, an

economist, and two medical experts: Dr. Mitchell Spivak, a psychiatrist, and Dr. Tony Giantomaso, a specialist in physical and rehabilitation medicine. Ms. Swanson called only one witness, Dr. Ryan Janicki, a neurosurgeon whose practice focused on degenerative and traumatic spinal disorders. [4] Following a seven-day trial, the trial judge ordered Ms. Swanson to pay damages to Mr. MacKinnon in the total of $1,544,136.55. The judge's reasons are indexed at 2022 BCSC 1821. [5] Ms. Swanson appeals. She does not directly challenge the judge's assessment of damages, which, indeed, appear to be reasonable based upon the judge's findings. She asserts, however, that the judge conducted the trial in a manner that would lead a reasonable person to conclude that the trial was unfair-- and that it was, in fact, unfair. She asks us to set aside the judgment and order a new trial. [6] Ms. Swanson advances four categories of conduct that, she submits, contextually and cumulatively lead inexorably to the conclusion that the judge improperly entered the fray, exceeded his proper role, and ran afoul of the principle of party presentation--leading to both the appearance of unfairness and actual unfairness. [7] These four categories, as described by the appellant, are as follows: 1. The judge exceeded his proper role, breaching the principle of party presentation, by eliciting new expert and lay

evidence supporting Mr. MacKinnon's claim. This focuses on three areas: a) During his evidence in chief, Mr. MacKinnon testified about a relatively new condition, a "shaking" or "twitching", which condition the judge observed in the witness box. Mr. MacKinnon's wife also discussed it in her evidence. The judge asked Ms. MacKinnon further questions about her observations. He also directed questions about the twitching to Mr. MacKinnon's expert physiatrist, Dr. Giantomaso, who had not observed it or mentioned it in his expert report (the "new assertive expert evidence"). b) As a further instance of improperly adducing new assertive expert evidence, the judge enlarged the scope of the opinions of both of the plaintiff's medical experts about Mr. MacKinnon's residual earning capacity by questioning them about the precise percentage likelihood of a return to work, thereby shifting their opinions from what was stated in their reports. c) The judge further asked Dr. Giantomaso about whether he agreed with the opinion evidence of Ms. Swanson's expert, Dr. Janicki, though Mr. MacKinnon had served no reply report from Dr. Giantomaso commenting on Dr. Janicki's evidence. The judge thereby elicited what Ms. Swanson calls the "new responsive expert evidence".

2. The judge made comments before hearing the defendant's case that indicated he may have prejudged the merits.

3. The judge made statements to counsel and in his reasons for judgment conflating the tort defendant (Ms. Swanson) with her third party liability insurer (ICBC) and the plaintiff's first party disability benefits insurers (Pacific Blue Cross and ICBC), which, coupled with negative views he expressed about both insurers, gave the appearance of partiality and, therefore, unfairness.

4. The judge made comments to Mr. MacKinnon suggesting ways in which he could enhance his claim. [8] Ms. Swanson says that the first two categories led to actual unfairness, while the third and fourth categories gave rise to unfairness in appearance. She submits, however, that the distinction is of no moment for the purposes of the applicable legal test. The judge's interventions, she maintains, strayed beyond the boundaries of the judicial role to the extent that a reasonable and impartial observer would conclude that the interventions rendered the trial unfair. [9] Alternatively, connected to the first category, Ms. Swanson maintains that the judge erred in law by running afoul of Rules 11-6 and 11-7 of the Supreme Court Civil Rules, which relate to the admissibility of expert evidence. He did so, she says, by eliciting both the "new assertive expert evidence" and the "new responsive expert evidence", all of which was inadmissible in the absence of the notice required by those rules. This error, she submits, affected the outcome. [10] Mr. MacKinnon responds by asserting that, viewed contextually, the trial judge was entirely within his rights to ask the questions he did, and did not indicate any partiality. In particular, he did not enter the fray or violate the principle of party presentation as currently understood. As to the alleged error of law concerning the

admissibility of evidence, expert or otherwise, no objection was taken at the time, and the appellant cannot demonstrate that the result would not have been the same otherwise. [11] Mr. MacKinnon cautions us against "equating lopsidedness with unfairness". He points out that he led a strong case comprising evidence from ten lay witnesses and three experts, whereas Ms. Swanson led a weak case consisting of only one witness, Dr. Janicki: a medical expert whose area of expertise arguably had no relevance to Mr. MacKinnon's claim as presented. [12] It is obvious that it will be necessary to review the trial proceedings in some detail. While doing so, it is important to bear in mind that, while I will be obliged to look at the alleged categories and instances of unfair intervention individually, it is their cumulative effect that I must ultimately consider. [13] Before I turn to those categories, I propose, first, to review briefly the principles of law that apply to the question of trial fairness. The parties agree, and there can be no doubt, that trial fairness is a question of law, reviewable on the correctness standard: see, for instance, R v Luk, 2016 BCCA 403 at para 42, and R v Quintero-Gelvez, 2019 ABCA 17 at para 6. Otherwise, as we shall see, there is no bright line that separates unfair judicial intervention from acceptable judicial intervention, particularly in civil cases.

2. PRINCIPLES [14] The issues in this case are framed by the complaint of trial unfairness, or the reasonable appearance of unfairness. The cases also speak of bias, and the reasonable apprehension of bias. It may be helpful to understand that while bias will invariably give rise to unfairness, unfairness may arise without bias: see, for instance, the discussion in R v Schmaltz, 2015 ABCA 4, with which I respectfully agree: [16] A biased judge may conduct himself or herself impeccably during cross-examination, while an unbiased judge may interject during cross-examination in ways that create unfairness. An allegation of bias (or of reasonably apprehended bias) impugns the judge's impartiality (whether by reason of the judge's motive, preference or other state of mind), while an allegation of unfairness arising from judicial interjections during cross-examination impugns how the trial was conducted. [17] Yet, these two concepts -- trial unfairness and bias -- are related. Properly understood, the right to an independent and impartial court is an aspect of trial fairness: R v. RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 92, 151 DLR (4th) 193; Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Irwin Law, 2012) at 236. As the Supreme Court observed in R v. Teskey, 2007 SCC 25, [2007] 2 SCR 267 at para 20 [Teskey], judicial

impartiality is essential to achieving trial fairness. (See also Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30 at para 12, [2013] 2 SCR 357 [Cojocaru].) A trial before a biased judge is per se an unfair trial. [Emphasis original.] [15] The tension between what is unfair and what is acceptable when it comes to judicial intervention and the principle of party presentation is illustrated in R v Mian, 2014 SCC 54. The context was whether the Court of Appeal of Alberta had erred in raising a new issue and inviting submissions on an issue neither party had raised. Justice Rothstein for the Court said this: [37] There are two potentially competing considerations at the heart of the issue in this case. First, the adversarial system, which is a fundamental tenet of our legal system. Second, the role of the courts to ensure that justice is done. [38] Our adversarial system of determining legal disputes is a procedural system "involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker" (Black's Law Dictionary (9th ed. 2009), sub verbo "adversary system"). An important component of this system is the principle of party presentation, under which courts "rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present" (Greenlaw

v. United States, 554 U.S. 237 (2008), at p. 243, per Ginsburg J.). [39] A fundamental reason for maintaining this system is to ensure that judicial decision-makers remain independent and impartial and are seen to remain independent and impartial. When a judge or appellate panel of judges intervenes in a case and departs from the principle of party presentation, the risk is that the intervention could create an apprehension of bias. This kind of departure from the usual conduct of an appeal could lead the court to be seen to be intervening on behalf of one of the parties, thus impugning the impartiality of the court. As this Court has said, "[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" [citations omitted]. It is for this reason that an important tenet of our appellate system is for the court to respect the strategic choices made by parties in framing the issues [citation omitted]. [Emphasis added.] [16] The point is that the judges should leave it to the parties to present their cases in the manner they see fit, and not intervene in a way that interferes with the parties' presentation. Otherwise, they risk not only creating an apprehension of bias, but also trial unfairness. [17] But there is another side to the discussion. Justice Rothstein went on to say: [40] On the other hand, courts also

have the role of ensuring that justice is done. As Lord Denning explained in the context of trial judges in the United Kingdom: " a judge is not a mere umpire to answer the question 'How's that?' His object above all is to find out the truth, and to do justice according to law " (Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), at p. 159 [emphasis added by Rothstein J.]. [18] This echoes what the Court said in Brouillard Also Known as Chatel v The Queen, [1985] 1 SCR 39 at p 44: First of all, it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. [Emphasis added.] The Court continued at p 46: In short, everyone agrees that a judge has a right and, where necessary, a duty to ask questions, but also that there are certain definite limits on this night. What are those limits? [19] R v Hamilton, 2011 ONCA 399, concerned appeals based on the allegation that interventions by the trial judge compromised the fairness of the appellants' trial, and that these interventions created an appearance of unfairness or bias.

The court offered this guidance, pointing out that the analysis is contextual, and that interventions should not be judged in isolation, but in the context of the entire trial and the record in its totality: [30] When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No.

62. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at para.

72. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness. [31] In Stucky, at para. 71, this court repeated three situations, referred to in Valley at pp. 231-32, where interventions by the trial judge have been found to lead to an unfair trial and have resulted in quashing criminal convictions. These situations are: 1. Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness; 2. Interventions that have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and 3. Interventions that effectively preclude the accused from telling his or her story in his or her own way. [32] While these three situations appear to go some way toward categorizing different types of interventions, the analysis is nonetheless a contextual one. That is, interventions should not be judged in isolation but in the broader context of the entire trial: "[T]he record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences": Stucky, at

para. 72. [Emphasis added.] [20] In Chippewas of Mnjikaning First Nation v Ontario (Minister Responsible for Native Affairs), 2010 ONCA 47, the Ontario Court of Appeal offered further guidance, again emphasizing the need to assess the trial record in its totality and the interventions cumulatively from the objective perspective of a reasonable observer throughout the trial. The court drew a distinction between interventions aimed at controlling the trial process, and interventions interfering with party presentation, and went on to say this: [237] For the most part, trial judges can manage the trial process by asking questions of counsel, making comments or giving directions about the course of the trial [footnote omitted]. Trial judges should be careful about trying to control a trial by examining witnesses. In the normal course, "the trial judge should confine himself [or herself] as much as possible to his [or her] own responsibilities and leave to counsel [his or her] function:" R. v. Torbiak and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-231; see also Valley, at p. 231. [238] On occasion, trial judges may be required to play a more active role in asking witnesses questions. However, when they do, it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or

credibility. [239] When a trial judge has questions for a witness being examined by counsel, it is generally best to leave the questions to a point during the evidence where counsel has completed a particular area or to the end of the witness's evidence. In that way, the judge avoids interfering with the organization and flow of the evidence. Excessive judicial intervention in the examination of a witness, whether in-chief or on cross-examination, may hamper counsel from following a well thought-out and organized line of inquiry. [Emphasis added.] [21] In the context of civil litigation, the Court of Appeal for Ontario also offered helpful guidance in McFarlane v Safadi (2004), 70 OR (3d) 599, a case arising out of a motor vehicle accident claim where the trial, conducted before a jury, concerned only liability. The defendant Safadi maintained that her co-defendant had made an unsafe lane change, cutting her off and causing the accident. Her key witness was the investigating police officer, who had given the co-defendant a ticket for making an unsafe lane change based on that defendant's statement that he felt responsible. Although the officer was cross-examined by very experienced counsel, the trial judge began to intervene early in the cross-examination by asking his own questions, making it clear that he believed that the officer had not conducted a thorough investigation.

Ms. Safadi's counsel moved unsuccessfully for a mistrial. [22] Although other complaints were raised, the Court of Appeal for Ontario "reluctantly" came to the view that the trial judge's interventions during the police officer's presentation of evidence resulted in an unfair trial: [31] The hallmark of a fair trial is that the judge preside with impartiality and neutrality between the parties. The judge must not cross the line and become a participant in the litigation. When he or she does so, his or her impartiality and neutrality are lost. It is at that moment that the trial ceases to be fair. [32] Sometimes a trial judge unwittingly crosses the line without intending to do so. This is a more common error and appears to be what happened in the present case. Unfortunately, unintentional conduct may also result in an unfair trial. [33] In my view, the trial judge made two fundamental errors in his conduct of the trial. [34] The first error of the trial judge is found in his questioning of the police officer. His questions went beyond the permissible limit. A trial judge may ask questions of a witness for the purpose of clarifying issues or amplifying areas of the evidence that require further explanation. However, if a trial judge questions a witness in a manner that gives the impression that he or she is adopting a particular position in opposition to one of the parties, he

or she has gone too far. See James v. Canada (Minister of National Revenue), [2000] F.C.J. No. 2135, 266 N.R. 104 (F.C.A.) at para. 52; Majcenic v. Natale, supra, at pp. 203-04 O.R. [37] The second error of the trial judge is found in his strong expression of opinion concerning the adequacy of the police officer's investigation. This manifested itself in the questioning referred to above, his comments on the motion for a mistrial and in his charge to the jury. [38] Although the trial judge was entitled to express his opinion on the evidence, he had to do so with great care so as not to unfairly influence or appear to unfairly influence the jury. Again, in my view, the trial judge went too far. His leading questions of the police officer left no doubt how he viewed this case. [Emphasis added.] [23] The decision of the Ontario Court of Appeal in R v Valley (1986), 26 CCC (3d) 207, cited in both Hamilton and Chippewas of Mnjikaning, was cited with approval by this Court in both R v CSM, 2008 BCCA 397 at paras 8-9, and R v Russell, 2011 BCCA 113 at para 18. Those two decisions quoted from Valley at length, including the following summation (Valley at 232): Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. The ultimate question to

be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial: see Brouillard v. The Queen, supra; R. v. Racz, [1961] N.Z.L.R. 227 (C.A.). [Emphasis added.] [24] With these principles in mind, I now turn to consider what occurred in this case in order to answer the question of whether, as Ms. Swanson contends, the judge went too far. I will review each category individually, followed by a discussion of their cumulative effect based on the record as a whole. I will then turn to the two alleged errors of law, which arise in relation to the "new assertive expert evidence" and the "new responsive expert evidence" that are the subject of the first category.

3. FIRST CATEGORY: BREACHING THE PRINCIPLE OF PARTY PRESENTATION? 3.1 Eliciting new evidence, including new assertive expert evidence re "shaking" 3.1.1 The impugned interventions [25] During his evidence in chief, Mr. MacKinnon was asked about his symptoms from the time he had moved to Powell River in the fall of 2021 to the time of trial. He answered in part: A The -- the neck pain is still there, shoulder pain is still there, the anxiety is still there, the nausea is still there. As of a few months ago I developed this shaking which is very -- very annoying. Q We'll come back to the shaking in a moment, but can you give the court a sense of how often you experience neck pain? [Emphasis added.] [26] Later in his evidence in chief, Mr. MacKinnon described how the onset of this shaking in late June 2022 caused him to attend the emergency department in Powell River. As a result, he missed a functional capacity assessment in Vancouver for Pacific Blue Cross, his long-term disability insurer through his employment. According to Mr. MacKinnon, Pacific Blue Cross used that as grounds for terminating his long-term disability benefits, which were very important to him and his family. [27] Being relatively recent in origin, this shaking had not been observed or commented upon by Mr. MacKinnon's two medical experts, who had examined Mr. MacKinnon some six months before trial. [28] In

his reasons for judgment, the judge remarked: [26] I should note here that this twitching or palsy condition became apparent during the afternoon of the first day of Mr. MacKinnon's testimony and continued during his cross-examination the following day. There is no doubt that the condition is genuine. Mr. MacKinnon attributes it to "the mental breakdown I am having currently". [29] Having observed this shaking or twitching in the witness box, the judge then proceeded to ask both Mr. MacKinnon's expert physiatrist, Dr. Giantomaso, and later Mr. MacKinnon's wife, about it. [30] At the conclusion of Dr. Giantomaso's evidence in chief, Mr. MacKinnon's counsel told the doctor, as is customarily done: "I understand my friend will have some questions for you". The judge then intervened: THE COURT: Well, before you do, I have a question that I'd like to ask before, and you may wish to ask some questions yourself before defence counsel wishes to explore. You would not have seen this, Doctor, because you weren't here, but I can tell you that when the plaintiff spent the past day and a half in the witness box here, at various times he exhibited a very notable palsy or twitching. And I have to tell you, it was -- it was very notable. Now, obviously you can't diagnose anything from a distance like that, but have you seen that sort of thing occurring in cases of patients with chronic

pain? [31] Dr. Giantomaso answered, in essence, that such movement disorders are rare, but: are thought to be, you know-- it's impossible to prove [sic] but obviously thought to be kind of an extension of their chronic pain or mental health issues related to whatever stress, that could be pain or just stress, that occurs to a person. Generally if you treat their mental health issues a lot of these issues can go away. And similarly when I've treated these people's pain issues, I have seen that, you know, they're in less pain, some of these other completely what seem to be completely disassociated movement [indiscernible; presumably something like, 'disorders can disappear']. 3.1.2 The appellant's position [32] Ms. Swanson argues that until this intervention occurred, neither Mr. MacKinnon's evidence in chief nor the expert evidence linked this shaking or twitching condition to the accident. In its absence, Ms. Swanson submits, there was no medical basis for drawing any association between Mr. MacKinnon's accident-related chronic pain condition and his twitching or palsy, as the judge called it. [33] Then, Ms. Swanson asserts, the judge compounded the unfairness of eliciting this "new assertive expert evidence" by intervening again to elicit corroborating evidence from Mr. MacKinnon's spouse, who had not been asked about the cause of these new symptoms. [34] Ms. MacKinnon had,

however, been cross-examined about Pacific Blue Cross's reasons for terminating Mr. MacKinnon's LTD benefits, which Mr. MacKinnon had linked to the development of his shaking. After the completion of her cross-examination, the judge asked her about the condition, noting that his question "may lead to some follow-up questions". [35] Ms. MacKinnon told the court that the timing seemed to be related to the "Pacific Blue Cross incident" and the fact that his benefits being revoked added to the "great stress" he had been under for four years. She described it as "very hard to watch". The judge went on to ask her about how frequently it occurred and if there was something that she thought was triggering it. She answered: He's calmest in the morning when he wakes up and then if anything sets it off, either a lot of noise from the kids or an unexpected change in the day or discussion about ICBC and what's happening and everything else, it starts. And it gets worse throughout the day. Evenings are worst and -- no, it hasn't gotten better. There hasn't been a day that he hasn't twitched like that since I would think June, maybe July, but definitely around the time of this Pacific Blue Cross. I actually like your word for it, palsy. I looked it up. [Emphasis added.] [36] Following this exchange, counsel for Ms. Swanson asked further questions about the condition. 3.1.3 Some

observations [37] As we have seen, the judge referred to this condition at para 26 of his reasons for judgment, saying that there is no doubt that the condition is genuine, and observing that Mr. MacKinnon attributed it to his current mental breakdown. I disagree with Ms. Swanson's submission that Mr. MacKinnon had not connected the condition to the accident. He spoke of it in precisely that context--what he was experiencing in the period leading up to the trial. Moreover, he connected it directly to the termination of his LTD coverage by Pacific Blue Cross, an issue of some importance to his claims for past and future loss of income earning capacity. [38] The judge later referred briefly to what Dr. Giantomaso had to say in response to the court's inquiry: [51] The Court inquired of Dr. Giantomaso whether there can be any relationship between chronic pain and the type of "twitching" or palsy exhibited by the Plaintiff during his testimony. He stated that, while such movement disorders are rare, they do occur in chronic pain cases and that many of his patients have them. [Emphasis original.] [39] When it came to his findings of fact, however, the judge made no reference to the condition: [61] It is unfortunate that the Court was not provided with comprehensive reports from the Plaintiff's family physicians who have been actively involved in the ongoing assessment and treatment

of Mr. MacKinnon's injuries. These physicians tend to be on the front line regarding the triaging of and referrals to other treatment providers. For a patient such as Mr. MacKinnon whose functioning is severely disabled by a somatoform disorder, proper medical case management and treatment coordination by a supervising medical professional is essential, perhaps all the more so given the challenges posed by today's overwhelmed, some say crumbling, healthcare system. [62] Even so, the reports and testimony of the independent medical experts retained on behalf of the Plaintiff combine with the compelling evidence from both the Plaintiff and the collateral witnesses to overwhelmingly support the conclusion, and I find as a fact, that: · the Accident caused cervical sprain/strain injury giving rise to chronic cervicogenic headaches and pain in the neck, shoulder and back that is now associated with a severe and chronic somatoform pain disorder; · the Plaintiff also sustained a concussion as a result of the Accident, although the main source of the Plaintiff's ongoing disability is the psychiatric component or somatization that is causing chronic pain and suffering that is both very intense and very real; · the Accident has also resulted in anxiety and depression that contributes to the Plaintiff's distress and limits his functionality, whether it be socializing, caring for his

children, or even driving a motor vehicle; · as a result of these conditions, the Plaintiff is no longer competitively employable, and the quality of his life has dramatically deteriorated; · the Plaintiff has been converted from a happy, high functioning husband, father, employee and sportsman into someone who suffers intense chronic pain and emotional distress, and who has significant functional limitations with respect to the normal activities of daily living. [40] Although nowhere in these findings does the judge mention the shaking or palsy condition, Ms. Swanson submits that we should infer that the judge included the condition in the second bullet point above. [41] I see no proper basis for doing so. The judge did not refer to it. The expert witness did not in fact offer the opinion that it was caused by the accident, and indeed the judge acknowledged the likelihood of that state of affairs when he said " obviously you can't diagnose anything from a distance ". [42] As I see it, this instance neatly illustrates the tension discussed above in cases such as Mian and McFarlane. Judges are entitled to intervene to clarify issues or amplify areas of evidence that require further explanation. Judges are also obliged to assess a witness's demeanour, and cannot be expected to ignore what they see. The evidence of Mr. MacKinnon's shaking problem was led from him by Mr.

MacKinnon's counsel without objection in the context of his condition since the accident and the termination of his LTD benefits. These were areas that the judge was entitled to explore further as part of his duty to ensure that justice is done. I see no unfairness arising from this aspect of the impugned interventions. [43] At the same time, judges are likely to cross the line if they question an expert witness, as the judge did here, about an aspect of a plaintiff's physical or medical condition that was not mentioned in either the expert's report or the expert's evidence in chief. Although the judge recognized that a diagnosis would not be possible, he nevertheless sought Dr. Giantomaso's opinion about whether such a condition could be associated with a chronic pain condition such as Mr. MacKinnon's. [44] Opposing counsel are entitled to notice of such an opinion. Having had none, they are left in a difficult position. What are the parameters of the expert's opinion? What is the judge going to take from what the expert said? How is cross-examination now to be conducted? [45] If, as appears to be the case here, the judge wished to learn more from an expert about something he observed that was discussed by Mr. MacKinnon in his evidence, but which the expert had not commented upon, the proper course would be to seek the submissions of counsel and proceed from there. If it

proved to be a matter of sufficient importance, the trial could, if necessary in the interests of justice, be adjourned to permit further expert evidence to be developed. Perhaps the plaintiff would prefer to proceed and have the new condition ignored. Perhaps not. Possibly the defendant would have no objection, and indeed no objection was raised before the judge here. [46] Given the absence of any objection or submissions from defence counsel, and the manner in which the judge dealt with the evidence, I do not see this instance, either, as one that would lead an impartial observer to conclude that the intervention led to unfairness. [47] The absence of objection does not, by itself, render fair what is in fact unfair. But it is an indication that it was not perceived to be unfair at the time and is a relevant factor on appellate review: Katz v Zentner, 2022 BCCA 371 at para 72; Brophy v Hutchinson, 2003 BCCA 21 at paras 49-55; and Cowan v Williams, 2022 BCCA 400 at para 38. The judge was entitled to explore what he saw in front of him given its relevance to the issues, and did not rely on Dr. Giantomaso's comments to the disadvantage of Ms. Swanson. Nothing prevented defence counsel from pointing out the obvious--that the evidence fell short of connecting the shaking causally with the accident. Indeed, the judge did not suggest otherwise, and the condition did not appear to

add anything to the mental breakdown that was already very much part of Mr. MacKinnon's claim. What was significant, from the judge's point of view, was whether it was a genuine problem (caused by the accident or not) in the context of its role in the termination of Mr. MacKinnon's disability benefits by Pacific Blue Cross. [48] Whether this instance, when viewed cumulatively with all of the matters of which Ms. Swanson complains, led to actual unfairness, as Ms. Swanson submits, or the appearance of unfairness, remains to be determined on a review of the whole of the record. 3.2 Eliciting new assertive expert evidence about relative likelihood in the form of percentages 3.2.1 Overview [49] This arises out of the judge's approach to future hypothetical events and contingencies in the assessment of damages. In opening his discussion on this aspect of the case in his reasons for judgment, the judge quoted at length from his own judgment in another motor vehicle accident case, Meckic v Chan, 2022 BCSC 182, in which he "reviewed the relevant legal principles governing the assessment of damages for past and future loss, including the analytic framework endorsed by a trilogy of cases decided by our Court of Appeal" (at para 64). That "trilogy" comprised Dornan v Silva, 2021 BCCA 228, Rab v Prescott, 2021 BCCA 345 and Lo v Vos, 2021 BCCA 421. To these may be added several decided

since, including Steinlauf v Deol, 2022 BCCA 96, Lamarque v Rouse, 2023 BCCA 392, and Murphy v Snippa, 2024 BCCA 30. [50] The judge had given notice to counsel about how he wanted them to approach final argument given the importance of contingencies and future hypothetical events in Mr. MacKinnon's claim. He did so at the end of the first day of trial, following the completion of Mr. MacKinnon's evidence in chief: You folks might want to look at a case that I decided earlier this year called Meckic v Chan. My plan is to give you a memorandum as I do in all my cases to counsel about the manner in which I would like for the final arguments to be structured. I will be specifically directing you to Meckic v Chan and the recent Court of Appeal trilogy on future loss and contingencies because this case is all about contingencies. And so you better study that subject and know it well because I'm going to be insisting that you provide me with all the four scenarios necessary, including alternative positions on the four scenarios for the purposes of me preparing a judgment in this case. All right? [51] In Meckic, the judge observed that this trilogy of cases endorsed a process by which, in essence, the judge should assess, based on the evidence, whether a specific contingency, or future hypothetical event, is a real and substantial possibility, and if so, should then determine, again on

the evidence, the relative likelihood of that event or contingency actually occurring in order to arrive at an appropriate deduction (at para 124 of Meckic, quoted after para 64 of the reasons for judgment in this case). [52] This was, of course, nothing startlingly new, but flowed from previous decisions, including Graham v Rourke (1990), 74 DLR (4th) 1 (Ont CA), Athey v Leonati, [1996] 3 SCR 458, and Grewal v Naumann, 2017 BCCA 158. [53] The issue here concerns the manner in which the judge pressed the experts to express their opinions concerning the likelihood of Mr. MacKinnon returning to employability as a more precise percentage. 3.2.2 The expert evidence [54] Mr. MacKinnon's claim was two-pronged, based on both physical injuries and psychological impairment. The former were addressed by Dr. Giantomaso, while the latter was addressed by Dr. Spivak. [55] In his report, Dr. Giantomaso discussed the association between the motor vehicle accident and Mr. MacKinnon's injuries to the cervicothoracic spine, observing further: Obviously, Mr. MacKinnon has experienced significant psychological impairment post-trauma that persists. This is outside of the scope of my specialty but must be addressed in regard to the holistic management of chronic pain. [56] Dr. Giantomaso went on to make made a number of recommendations and then offered the following comments: It is now essentially

four years post-trauma. The vast majority of improvement through natural history and rehabilitation would have been expected to have occurred in the first 6 to 12 months post-trauma or earlier. Thus, in my opinion on a balance of probabilities, in all likelihood he will continue to experience chronic pain to some degree long-term in the future. By following my recommendations he may experience decreased pain and increased function in the future, however this should be considered part of a long-term pain management strategy and should not necessarily be considered curative. In my opinion, his physical injuries alone related to the accident in question including the cervicothoracic myofascial pain and post-traumatic headaches should be able to be managed in the future and based on these issues alone he is employable to some degree in a sedentary to light work field. However, a significant portion of his ongoing limitations are related to mental health issues including concentration difficulties, depression and somatization disorder. Until these issues are dealt with, it is unlikely that a return to work would be successful. [Emphasis added.] [57] Dr. Spivak's opinion was not dissimilar. He noted that Mr. MacKinnon's "somatic symptom disorder with predominant pain impacts his ability to return to employability". He went on to say this: Mr. MacKinnon's potential for improvement

will correlate substantially with his potential for physical/pain improvement. This is somewhat outside my scope of expertise, and I will defer to the appropriate assessors for more substantial comment around the same. He may potentially be able to appreciate gains from being referred to a multidisciplinary pain program where they may focus on the psychological aspects of his pain (hurt versus harm) as well as provide some multidisciplinary approaches to pain management. While there is a potential for benefit in this respect, I am concerned with the length of time that has passed and the degree to which his perception of pain and disability have become entrenched. While there is potential for some improvement, I do not expect him to reach a full remission, given the amount of time that has passed and the limited improvement that he has demonstrated to date. Given the psychological underpinnings of a somatic symptom disorder diagnosis, I see psychological treatment as being the basis of any potential for improvement for Mr. MacKinnon. Mr. MacKinnon's prognosis is guarded to poor. The likelihood of substantial remission is limited given the length of time that has passed. He may see some gains through appropriately targeted treatment, although I suspect he will never fully return to his previous functioning. Of most substantial concern is his potential for returning to

employability. His prognosis for returning to competitive employment is minimal absent a change in his experience of his physical issues and pain. His current scope of functioning is not compatible with employment at present and it has remained this way for several years now, thus suggesting that the likelihood of return to it is limited. It is difficult to envision what employment he would be able to return to, given his current experience of his limitations. [Emphasis added.] [58] Given this somewhat imprecise evidentiary context, the judge was faced with a challenging task in assessing the contingencies and future hypothetical events relevant to Mr. MacKinnon's claim for damages for loss of future income earning capacity. 3.2.3 The impugned interventions [59] During his cross-examination of Dr. Giantomaso, counsel for Ms. Swanson was exploring the extent to which an improvement in Mr. MacKinnon's impairments would lead to greater functional improvement, which could include return to work. The judge intervened to say this: THE COURT: But before you finish, you know, Doctor, this exercise might seem ridiculously unscientific and -- and speculative, but believe it or not the construct that is imposed upon the courts here in British Columbia by the Court of Appeal recently, and perhaps in Alberta too for all I know these days, is that we, the judge, is required to assess the

percentage of possibilities and probabilities that, you know, the contingencies that will affect the patient who's making the claim here as the plaintiff. And, you know, if there's a 20 percent chance that this will occur, then the damage will get reduced by 20 percent, in the most simplistic of models, but nothing is ever that simple. A Okay THE COURT: But it leads to questions that get asked of physicians, who probably hate them, which are along the following lines: assuming the plaintiff undergoes the recommended treatments that you suggest, based on your experience, what in your opinion is the probability expressed as a percentage of the man returning to work and at what time? Are you able to even hazard something half sensible on that? [60] Dr. Giantomaso answered, in the end, that he would estimate a 50% chance of getting Mr. MacKinnon back to some form of work, even if it is part-time or modified, through management of his headaches with Botox and migraine medications. Ms. Swanson's counsel had no further questions after this exchange. On re-direct, Dr. Giantomaso confirmed that his estimate did not include the odds of Mr. MacKinnon recovering from his psychiatric conditions, which Dr. Giantomaso does not treat. [61] The judge took a similar approach when Dr. Spivak was in the witness box. After counsel for Ms. Swanson completed his cross-examination, the judge proceeded

to ask this: I know you don't like the question but here's the reality. The reality is that our Court of Appeal requires trial judges to undertake an assessment of contingencies. The Court of Appeal -- recent cases in the Court of Appeal require us, believe it or not, to ascribe percentages, determine likelihoods based on percentages and insert those percentages into the analysis, particularly insofar as future loss is concerned, theoretically past losses well. And I know this is not something that doctors are comfortable doing. Frankly, judges aren't comfortable doing it either, but that task has been downloaded to us and I like to download it to you because you're the only one who's able to offer anything informed in that regard. Mine is just guesswork. So in good old plain English, knowing what you know about this fellow and the nature of the condition that he suffers from and which presumably other patients of yours have suffered from in the past, what are the chances of this fellow's condition significantly improving in the future? [62] Dr. Spivak responded: Yeah. No, it's -- Mr. Justice, I had a similar speech given to me by a Queen's Bench judge here [Alberta] where his phrase was well, the buck stops with me so I can't have you guys pretending that neither of you know what the number is. So it was a similar sort of discussion about it. It's -- so before I get to a

number, I would say it's not good. The likelihood is very low. [63] Dr. Spivak then discussed the extent to which Mr. MacKinnon was likely to have access to appropriate interventions, and what would happen in an ideal world, which does not in fact exist. He concluded with this comment: I would suspect that symptomatic [sic - somatic] symptom disorder psychological condition is really entrenched and the actual likelihood is closer to zero to 10 per cent. [64] Notwithstanding this evidence, the judge applied a reduction of 20% to his assessment of both Mr. MacKinnon's non-pecuniary damages (para 83) and his damages for loss of future income earning capacity (para 107) to take into account the possibility of future improvement in Mr. MacKinnon's chronic pain disorder to the extent that would permit a return to employment, noting at para 107: For the purposes of this aspect of the [income earning capacity] award, I would apply the same 20 percent contingency as I applied to the claim for non-pecuniary damages, recognizing that it may even be too high if medical improvement occurs but only permits a return to less remunerative, part-time work. 3.2.4 The appellant's position [65] Ms. Swanson submits that, based upon a "questionable interpretation of leading decisions of this Court", the judge examined the two experts at length on the percentage likelihood of the plaintiff getting

back to some form of work with effective treatment, notwithstanding that the experts had built into their estimates certain assumptions in that regard. In result, Ms. Swanson argues, each expert provided an opinion that shifted, from that found in his report suggesting at least some capacity to return to work, to revised testimonial opinions, based on the invitation of the trial judge, and incorporating real-world estimates approaching zero. [66] According to Ms. Swanson, the utility or even necessity of such opinion evidence is debatable, given the long-standing principle that damages should be assessed on the basis of the whole of the evidence accepted by the judge, not on assumptions adopted by experts who had examined the plaintiff months or perhaps years before trial. But in any event, she asserts, these testimonial opinions constituted evidence that Mr. MacKinnon's counsel would not have been entitled to elicit in direct examination. I interject here to note that counsel would certainly have been entitled to adduce such opinion evidence had it been contained in their expert reports. Nothing confines them to generalities. [67] The result, in Ms. Swanson's submission, was a prognosis that was more dire than either expert indicated in his report. 3.2.5 Some observations [68] The judge's apparent complaint that recent decisions of this Court have required him to assess the

degree of likelihood as a percentage based on evidence, is puzzling. [69] Damages, after all, consist of money. Money is expressed in numbers. If a number is to be reduced or increased to take into account the relative likelihood of a future hypothetical event or contingency occurring, that is most commonly accomplished by the application of percentages or fractions. As the Supreme Court instructed in Athey at para 27, " If there is a 30 percent chance that the plaintiff's injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk." [70] Trial judges have had to cope with assessing deductions and relative contributions in the form of percentages and fractions for as long as they have been awarding damages. The same is true of such judicial tasks as apportioning liability (50:50? 60:40? ⅓:⅔? 75:25?). It is hardly a novel exercise and has always been required to be based on the evidence in the case, rather than speculation, guesswork or the random application of averages. There is no other rational basis for determining relative likelihood or relative fault other than the evidence; for an example, see Murphy at paras 147-148. [71] But, although it may involve arithmetic, nowhere has the exercise been described as one of mathematical or scientific precision, as the judge seems to suggest. Depending on the

evidence, that, indeed, could be an error. The process is one of assessment, not calculation: see, for instance, Reilly v Lynn, 2003 BCCA 49 at para 101, Grewal at para 54, and Steinlauf at para 105. As this Court stated in Morris v Rose Estate (1996), 23 BCLR (3d) 256 at para 28, "[The judge] was to make an estimate of the loss using the guidelines available to him; he was not performing a computation" (emphasis original). [72] This Court's recent decision in Lamarque confirms the importance of basing the assessment on the evidence, while eschewing mathematical computation (at paras 45-53). [73] But it is important not to be distracted by the judge's complaints about the burden downloaded on him. He was correct in stating that this Court and other appellate courts require judicial assessment of the relative likelihood of contingencies and future hypothetical events to be based on the evidence, and one can understand his frustration with evidence that is expressed in very general terms. Nevertheless, in this case, the judge seemed to have little difficulty in assessing the evidence and applying a deduction of 20% to take into account the relative likelihood of substantial future improvement--which assessment, if anything, arguably favoured the defence, given the expert evidence. That figure of 20% was not one proposed by either expert, nor does it appear to have been a rigid

mathematical calculation, or one based on random averages. On the contrary, it seems, quite properly, to have been based on the judge's assessment of the evidence as a whole. Ms. Swanson did not suggest otherwise. [74] The same can be said of the judge's assessment of the without-accident likelihood of Mr. MacKinnon moving to more remunerative private sector employment (30%), notwithstanding the judge's comment at para 105 that: the assessment of the likelihood of this contingency materializing is simply guesswork. There is no scientific way to select a percentage of likelihood based on the generality of the evidence adduced. [Emphasis added.] [75] Scientific precision, however, is not what was required, and will rarely be available. What was required was an assessment based on all of the evidence adduced. That is exactly what the judge then proceeded to do in the same paragraph: For sure, it would have taken Mr. MacKinnon some time to upgrade his academic credentials and, given his history and his interest in the subject matter, his likelihood of doing so was substantial. However, his strong connections to the North Shore, his wife's success at the Volvo auto dealership, and his growing family makes it rather improbable that Mr. MacKinnon would have been seduced by the private sector to move away, absent assured employment elsewhere at a substantially higher than average

remuneration. All in all, I am inclined to assess the likelihood of this future contingency materializing in the range of 30 percent. [76] As this Court stated in Dornan: [134] There is no doubt that the task of the trial judge in circumstances such as these is not easy. By definition, we are dealing with possibilities, and there is no one right answer. But the law provides one right process, which, of course, must be tethered to the evidence . [Emphasis added.] [77] In these circumstances, I see nothing wrong with a judge endeavouring to adhere to this process by attempting to clarify the imprecise statements of experts in order to understand their opinions better. By itself, I do not think an impartial observer would consider the intervention unfair. Whether it nevertheless contributed to unfairness, actual or apparent, as Ms. Swanson submits, will again depend upon a review of all of the matters complained of cumulatively, on the whole of the record. Whether it led to an error of law in eliciting inadmissible evidence will be discussed in a separate section. 3.3 Eliciting "new responsive expert evidence" 3.3.1 Overview [78] This arises out of the judge asking Mr. MacKinnon's expert, Dr. Giantomaso, to comment on the opinion expressed by Ms. Swanson's expert, Dr. Janicki, in his report. As noted above, Mr. MacKinnon had not served any reply report from Dr. Giantomaso

responding to Dr. Janicki's report. [79] As often happens, a copy of Dr. Janicki's report had been handed up to the judge at the beginning of the trial, although it was not tendered and marked as an exhibit until Dr. Janicki testified several days later, at which time he was qualified as an expert in the field of neurosurgery. In his brief report, Dr. Janicki noted that his opinion "is limited to the neurosurgical practice". As presented at trial, none of Mr. MacKinnon's complaints were neurosurgical by nature. [80] Dr. Janicki expressed the following opinion in his report: It is more likely than not that he did suffer whiplash type injury or occipital cervical, cervical thoracic sprain/strain injury which would be common during a rear-and motor vehicle accident. However, the resultant symptoms are self-limited, respond to conservative management, and not caused pronounced disability beyond a period of weeks to months at most. Although ongoing symptoms do occur in a minority of individuals, they would not prevent return to work or recreational activities indefinitely. There is no structural finding on his MRI or CT scan, including x-rays with flexion extension views, to support the idea that he has sustained a permanent injury to his C1-2 joint or any capsular ligaments as discussed by his chiropractor. He is not restricted from full physical activity including contact sports

or return to full employment, including physical labor, based on his imaging and examination. His limitations at this point are subjective in nature. There is no indication to impose formal medical restrictions based on imaging and physical examination. It would be expected that he could return to fulltime employment, returning to his previous job. I do accept that he may require a sit-stand desk and have the ability to take micro breaks to help manage his symptoms. 3.3.2 The impugned intervention [81] After asking questions of Dr. Giantomaso about the palsy/twitching, the judge went on: THE COURT: Okay. Thank you. I have one other question for you. Well, I guess maybe two. Have you -- have you seen the defence report here in this case, by a neurosurgeon by the name of Ryan Janicki? A I'm not sure. I don't remember it right now. But it might be in the list of documents I reviewed. I haven't reviewed it recently, anyway. THE COURT: Yeah, okay. Well, let me read you something. Quotes: It is more likely than not that he did suffer whiplash type injury or occipital cervical thoracic sprain or strain injury, which would be common during a rear-end motor vehicle accident. However, the result and symptoms are self-limited, respond to conservative management, and do not cause pronounced disability beyond a period of weeks to months at most. Although ongoing symptoms do occur in a

minority of individuals they would not prevent return to work or recreational activities indefinitely. Now, I may be reading this report wrong. It hasn't been -- it hasn't been elaborated on because the witness hasn't testified yet, but in plain English and using the vernacular, what I take from this paragraph is that the man suffered a whiplash and should have been all fixed up within a matter of months, and whatever this man suffers from beyond that is not related to the whiplash. Is that an opinion that you would agree with? A Well, you know, that's very super interesting that you bring that up because it's, obviously, very frustrating to a doctor like me to hear that, but it's also why neurosurgeons and orthopedic surgeons should not be giving evidence in soft tissue pain management because they absolutely do not manage soft tissue pain. You can ask this doctor, perhaps, when was the last time he diagnosed and treated myofascial pain and what his outcomes were. But, you know, using his logic let's say kind of like my logic if I was to opine on something I didn't treat, I would look at the numbers and say, 85 percent of these people do recover, so based on a likelihood ratio they recovered. But this person didn't recover so it makes absolutely no logical sense. It's kind of like saying 99 percent of people survive Covid so everybody does. That's what he just said, right? He

said 85 percent of people get better from whiplash so this gentleman did, but that makes no sense. You know, 99 people recover from Covid but 1 percent die, but that's like telling the dead person that he survived, you know, using that -- you know, that neurosurgeon's logic. The fact is the only people that you see in court for chronic pain are already in that segment that did not recover. So you can take 5 percent away that are clearly malingering or exaggerating their symptoms, which has also been studied to be anywhere between, you know, a real study that shows perhaps 5 percent have -- are totally into it for, you know, the money. Let's put it that way. A further 95 percent have symptoms that are ongoing that has not been reputed [sic]. And we are already taking -- those people we've already taken are already the minority that have not improved, so Dr. Janicki's file itself, he says a minority, right? The majority improve, a minority don't. This gentleman is already the minority that don't. So to me everything that statement says is basically a play on words that actually has the answer within the words but is not using logic. It's not actually making any logical sense although it sounds like it makes sense. THE COURT: Okay, thank you. All right. Any clarification? No. All right. [PLAINTIFF'S COUNSEL]: Nothing arising, Mr. Justice. THE COURT: All right. Mr. Dutt [defence

counsel]? [DEFENCE COUNSEL]: Sorry, I don't have any clarification on those points but I .... I can start my cross-examination. I'm ready to do that. THE COURT: Oh, I'm sure you do. Go for it. 3.3.3 The appellant's position [82] In Ms. Swanson's submission, by asking the question he did, the judge elicited responsive expert opinion evidence without any notice to the defence, contrary to Rules 11-6(4) and 11-7(1) and (6) of the Supreme Court Civil Rules. Not only did this result in inadmissible evidence being admitted, but it provided a strategy for cross-examination to Mr. MacKinnon's counsel. That strategy, Ms. Swanson contends, was followed closely, with plaintiff's counsel putting to Dr. Janicki the same COVID survival analogy used by Dr. Giantomaso in answering the judge's question. [83] Moreover, Ms. Swanson asserts, by eliciting evidence from Dr. Giantomaso on whether Dr. Janicki had the necessary qualifications to provide opinion evidence on the plaintiff's constellation of chronic pain symptoms, the judge effectively foreclosed the ability of her counsel to seek leave to adduce late responsive opinion evidence from Dr. Janicki on the question of whether chronic pain was the cause of the shaking/palsy--an opinion the judge had improperly elicited earlier. 3.3.4 Some observations [84] Respectfully, this was a clear violation of the principle of party presentation. It is

for counsel to challenge the qualifications and expertise of an opposing expert, and the judge should leave it to counsel to do so. It cannot be right for a trial judge to proceed to lead opinion evidence from an expert about the opposing expert's opinion and qualifications without any notice having been given as to what that opinion might be. [85] Rule 11-7(6) discusses when the court may dispense with the requirements of the rules concerning expert evidence. One of the conditions is that "the interests of justice require it". That is unlikely to be the case where counsel will have a full opportunity to cross-examine the expert in question as to his qualifications and the basis for his opinion later in the trial, when that expert is called as a witness and his report tendered into evidence. The judge should have left it to counsel. [86] A judge is, of course, obliged to act as a gatekeeper when it comes to the admissibility of evidence, particularly expert evidence: R v Mohan, [1994] 2 SCR 9; White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at paras 1, 16; R v Bingley, 2017 SCC 12 at para 13. If counsel fails to ask appropriate questions about an expert's qualifications, and the judge has concerns, then the judge by all means may intervene to clarify the situation. But that was not the situation here. Dr. Janicki had not yet been tendered as an expert and

his report was not in evidence. There was no need for a pre-emptive strike of this nature. A little patience was required. [87] Accordingly, it seems to me that this intervention, viewed on its own, fell on the wrong side of the line. Whether it in fact contributed or led to actual or apparent unfairness will again depend upon a review of all of the matters complained of cumulatively, on the whole of the record. The effect of the error in eliciting inadmissible evidence will be discussed in a separate section.

4. SECOND CATEGORY: COMMENT INDICATING PREJUDGMENT OF THE MERITS? 4.1 The impugned comment [88] The last witness called in Mr. MacKinnon's case was his wife, Austyn MacKinnon. At one point during her cross-examination, counsel for Ms. Swanson raised the subject of the reason for the termination of Mr. MacKinnon's Pacific Blue Cross long-term disability benefits, which led to a comment from the judge: COUNSEL: And is it your understanding that the assessment that you missed in July, that had something to do with his termination of his benefits? A That is the natural conclusion. Q They actually told him in fact that that was the reason? Are you aware of that? A It seems to me. That seems to be their stance on it. Q And when you say "that seems to be their stance," I'm just going to ask a follow-up question. Were you -- that's a fair assessment in your opinion that they should have terminated his benefits? THE COURT: Well, hang on. That's not a proper question for this witness. COUNSEL: Fair enough. I'll withdraw that question. THE COURT: I'll have something to say about disability insurers in my judgment. COUNSEL: Thank you. Just going to review my notes briefly, Mr. Justice. Thank you. [Emphasis added.] [89] Ms. Swanson objects to the portion I have underlined. [90] In his reasons for judgment, the judge dealt with the matter of Mr. MacKinnon's a long-term disability benefits

through Pacific Blue Cross as follows: [111] The last contingency raised by the parties relates to the value of Mr. MacKinnon's "employee benefits" which Mr. Wickson valued at $7,278 per annum for "employer pension plan contributions" and $4,847 for "other benefits", the present value of which future loss would work out to be $212,000 rounded up. [112] Plaintiff's counsel says he has "struggled" with this question because there is a "strong likelihood that Mr. MacKinnon will be able to successfully appeal the termination of long-term disability benefits by Pacific Blue Cross". He notes, however, that a 10 percent chance that the benefits will not be reinstated equates to an approximate $21,000 present‑value loss which he says would be a fair accounting for the "remote possibility". [113] I infer that Pacific Blue Cross have treated Mr. MacKinnon's refusal to attend Occupational Therapy testing as a breach of some plan condition that triggers termination rights. This would appear to be an extremely harsh decision given the nature and extent of Mr. MacKinnon's somatoform chronic pain disorder which was obviously the foundation for the refusal to attend. I am inclined to agree that, given the evidence at this trial and the conclusions of the Court, it is indeed a "remote possibility" that Mr. MacKinnon's pension and non‑wage benefits arising from his employment with Port Moody

will not be restored and I therefore decline the requested modest increase in the loss of future earning capacity award on this account. [Emphasis added.] 4.2 The appellant's position [91] Ms. Swanson argues that the judge's impugned statement, while seemingly harmless on its face, in fact highlights a deeper problem: that the judge had already determined that Pacific Blue Cross had acted inappropriately before Ms. Swanson had even opened her case. Implicitly, he must have already accepted Mr. MacKinnon's evidence about his condition and the role of Pacific Blue Cross's termination of coverage in exacerbating it. 4.3 Some observations [92] The circumstances of the termination by Pacific Blue Cross of Mr. MacKinnon's long-term disability benefits were clearly relevant. Whether those benefits would be restored or not would have an impact on Mr. MacKinnon's claim for loss of future income earning capacity, as the judge observed at paras 111-113 of his reasons for judgment. If the termination were not reversed, then Mr. MacKinnon's claim against Ms. Swanson would be higher. The judge found that to be a remote possibility, and therefore declined to increase Mr. MacKinnon's claim. [93] As noted, the judge's impugned comment occurred at the end of the plaintiff's case, with only one defence witness to come. Viewed on its own the comment does not seem to suggest very much. At worst, it

might lead an impartial observer to conclude that the judge would have something negative to say about the disability insurer, but that could not reasonably be interpreted as unfair to Ms. Swanson (being careful not to conflate her with ICBC). If the judge concluded that the disability insurer had wrongfully terminated coverage, that would serve only to reduce the damages claimable against Ms. Swanson. The defence did not contest that Mr. MacKinnon's current condition was caused by the accident. The issue was how much it might improve and when. As the judge observed, the case was all about contingencies. [94] Whether the comment could reasonably contribute to a conclusion that the trial had been unfair will, as before, depend upon a review of all of the matters complained of cumulatively, in the context of the whole of the record.

5. THIRD CATEGORY: CONFLATING THE TORT DEFENDANT WITH HER INSURERS? 5.1 Overview and appellant's position [95] Ms. Swanson correctly points out that neither Pacific Blue Cross nor ICBC were parties in this action, and neither was on trial. It was, of course, ICBC, in its capacity as Ms. Swanson's motor vehicle liability insurer, who was directing the defence of Mr. MacKinnon's claim and who would be liable to pay any damages awarded against Ms. Swanson. Moreover, the law requires the court to deduct from those damages amounts that ICBC is obliged to pay by way of benefits in its capacity as Mr. MacKinnon's disability insurer. But Ms. Swanson was the defendant, not ICBC. Accordingly, it is, strictly speaking, the defendant who seeks the deductions reflecting ICBC's obligation to pay benefits, not ICBC: see, for instance, Del Bianco v Yang, 2021 BCCA 315 at para 42. [96] Ms. Swanson concedes that, in a jurisdiction that employs a compulsory motor vehicle insurance scheme in which ICBC has exclusive conduct and control of the defence of motor vehicle claims, the interconnection between the tort defendant and the liability/no-fault benefits insurer is impossible to ignore. [97] She asserts, however, that the judge here went much further. He did so, she says, by expressing disappointment that the bar had yet to take up the invitation he extended in Meckic to "take them on" by

cross-examining ICBC affiants in relation to the claimant's entitlement to future benefits, and by making other obiter comments indicating a bias against ICBC, and, hence, the defendant. These included: · musing about the nature of the motor vehicle compensation scheme as a whole; · expressing cynicism about the legislature's motives in limiting the number of expert reports that can be commissioned; · commenting that legislated provisions are designed to protect the financial interests of ICBC; · insinuating that ICBC had a secretive agenda that needed to be exposed; · questioning ICBC's conduct in relation to the payment of future care damages or Part 7 benefits; and · describing the conduct of Pacific Blue Cross as "extremely harsh" (at para 113; see para 90 above). [98] These comments, Ms. Swanson submits, reasonably give rise to the impression that the judge viewed his role to be a counterweight to what he considered to be systemic unfairness impairing the ability of plaintiffs to obtain full compensation. This would, she says, lead a reasonable person to question whether the judge's broader concerns about the operation of the insurance system would affect his ability to adjudicate the claims made against Ms. Swanson fairly and impartially. 5.2 The impugned comments [99] The bulk of the comments of which Ms. Swanson complains occurred in the course of argument, in the form

of exchanges between Mr. MacKinnon's counsel and the judge. The issue that framed these exchanges was the costs of future care, which in fact Mr. MacKinnon was not claiming. That was the point counsel was addressing. The judge had commented to counsel on the absence of evidence concerning such a claim, including the cost of a chronic pain clinic. The exchange continued: COUNSEL: And if I might, I'm going to answer the second question first. With respect to cost of future care, there was a comment in Meckic that brought a smile to my face, if I might - THE COURT: Sorry? COUNSEL: There was a comment in the Meckic v. Chan decision that brought a smile to my face, if I'm being honest. I've always thought that pursuing a cost of future care claim is -- I don't want to call it a waste of time, but it's pretty close. The section 83 deductions with respect to part 7 benefits, I have seen time and time again, those kinds of awards essentially slashed. So I'm not suggesting that's necessarily the answer with respect to a pain clinic - THE COURT: Well, I'll tell you why. It's because you guys don't challenge them properly. Meckic v. Chan, I invited them to bring on their section 83 application. I told them I was prepared to allow cross-examination of the ICBC affiant and require production of documents from, you know -- internal ICBC documents because now finally the insurer comes out of

the covers and is right in front of you. And, you know, if somebody ever chose to do it and really put the boots to the affiant, who's just signing a standard form affidavit, filled with lawyer speak, you know, you might find some judge prepared to say, "No. I'm not going to give the -- I'm going to let the Court of appeal sort it out." But, you know, in that case, counsel didn't take the invitation. I mean, it wasn't that express, but it was, you know, subtly conveyed, I think, if I do say so myself. And the appetite isn't there to take them on, so, you know, in some cases, you're talking about $1 million for some of these -- the awards in some of these cases are pretty substantial. And when your man is getting, you know, kicked about by his LTD insurer, you know, there's another outfit that -- you've got a subrogated interest, perhaps, but, you know, there's an invitation there. There is fertile ground to be tilled on this topic, which is almost never done, and I don't know why. But, okay, I accept what you're saying that it's just simply not worth it because he's going to lose most of it as a result. I don't know what his benefits are. Obviously, that's usually addressed in the second phase. [100] The judge went on to observe that Mr. MacKinnon had a chronic pain condition that needed treatment, including psychiatric intervention, and noted that the cost of a chronic pain

clinic would be covered under Part 7 benefits--if claimed and paid. He continued: What's going to happen here? I mean, you guys will just have another fight down the road about getting the man into -- I mean, I have to ask these questions of ICBC, too, because it all factors into contingencies. You know, it's all well and fine to say there's a chance it might be cured by or at least remedied in part by a chronic pain program. And so there should be a recognition of that contingency in all future losses. He might be able to get back to work. So, you know, hey, that's a 40 percent contingency, a 40 percent deduction, or whatever the argument is going to be on loss of future income -- or loss of capacity. So, you know, it's a complicated scenario, and it's one that I find myself struggling with quite frequently. Maybe I'm overthinking it, but that's what's going on here in the judicial wind blowing. COUNSEL: Well, I think there are some significant points raised by that, and perhaps the only thing -- and I hesitate to mention it, but I will mention it. Our government is seeing fit to limit the number of expert reports that can be commissioned. THE COURT: Well, no, okay, that's true, and I'm deeply cynical about those motives. You saw what I said in Meckic v. Chan. But on the other hand, you're still allowed to make an application to get additional -- additional reports. And I tell

you if that application was made in front of me in a case like this, I'd say, "Fill your boots." So I'm with you, and it looks like it's a strategy that's had some success. [Emphasis added.] [101] In his reasons for judgment, the judge referred to the position of the disability insurers in discussing the cost of future care. All of this was obiter, because Mr. MacKinnon made no claim for damages respecting the cost of future care and the judge made no award under that heading. [102] Given this state of affairs, the judge understandably found it remarkable that "the final submissions made by ICBC on behalf of the Defendant" included an allowance of $12,583 for reasonable future care costs (at para 117). It was, in short, Ms. Swanson's counsel who opened this particular can of worms. The judge went on to say this: [118] In their submissions, Defence counsel also acknowledged that treatment at a multi‑disciplinary pain clinic was warranted however declined to volunteer payment on that account because "there is a supply of these clinics in the Lower Mainland that are covered for up to 12 months in the MSP program". [119] The Court inquired of Defence counsel whether ICBC, either in its capacity as liability insurer for the Defendant or Part 7 benefits insurer for Mr. MacKinnon, was volunteering to pay the $12,583 expenses referred to above. While acknowledging that these expenses

would be payable under Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 and hence deductible under s. 83 of the Insurance (Vehicle) Act, counsel informed the Court that ICBC was not in fact volunteering to make these payments. These muddled submissions and arguably inconsistent positions taken by ICBC do not reflect well on the Corporation. [120] In Meckic, the Court had the benefit of expert opinion from not only a physiatrist who specialized in the treatment of chronic pain but also from an occupational therapist regarding the availability of "case management assistance" to triage a cohesive treatment plan and to avoid the otherwise usually fragmented approach to treatment that so often accompanies patients with these types of chronic pain conditions, an approach that simply does not work in the experience of those experts. Had a claim for such assistance been made in this case, I would have allowed it, as was the case in Meckic. The present case similarly requires such expert triaging in order for there to be any hope of even partial recovery on the part of Mr. MacKinnon. The Court expects that both ICBC and Pacific Blue Cross will recognise this reality in their future dealings with the Plaintiff. [Emphasis added.] 5.3 Some observations [103] It is evident that the judge was not careful to distinguish between the tort defendant, Ms. Swanson, and ICBC. This was

so from the outset of his reasons for judgment: [1] This is an action for damages for personal injury sustained in a motor vehicle accident that occurred on May 3, 2018 in Port Moody (the "Accident"). ICBC has admitted the accident was the fault of the Defendant driver but disputes the nature and extent of the Plaintiff's injuries and the resulting financial loss. [Emphasis added.] [104] Technically, it was, of course, Ms. Swanson who admitted fault for the accident, and who disputed the nature and extent of Mr. MacKinnon's injuries, not ICBC. If this were a jury trial, perhaps an objection could legitimately be raised. But this was not a jury trial, and it is difficult to see how the mere fact of conflating the insurer with the party can rationally give rise to concern in this jurisdiction in a trial before a judge alone. Comments made by the judge concerning, for instance, the failure of "ICBC" to adduce any evidence in support of the defence of failure to mitigate (at para 76) would have no different effect if the failure had been said to be Ms. Swanson's instead. [105] The interventions of which Ms. Swanson complains seem to me to fall into two categories: obiter comments arising in dialogues with counsel that had no relevance to the result, and concerns largely flowing from the position taken by Ms. Swanson's counsel in relation to future care costs, and what ICBC, as part

7 insurer would or would not pay (the amounts to be paid by ICBC as no-fault insurer being deductible from the claim against Ms. Swanson). The matter of Pacific Blue Cross was not a conflation problem, but a relevant issue for damage assessment. [106] Viewing these interventions on their own, I do not see any indication of a lack of fairness or impartiality in relation to Ms. Swanson (who, of course, must not be conflated with ICBC). Rather, the judge was doing what he considered necessary to ensure that justice was done. [107] Whether, as Ms. Swanson submits, his comments reasonably give rise to an appearance of partiality and therefore unfairness when viewed cumulatively with the other interventions will, again, depend on a review of all of these matters in the context of the whole of the record.

6. FOURTH CATEGORY: ENHANCING MR. MACKINNON'S CLAIM? 6.1 Overview and appellant's position [108] Ms. Swanson raises two instances in which, she says, the trial judge appears to offer Mr. MacKinnon advice on how better to establish or improve his claim for compensation. She also relies on the intervention covered under section 3.2 above ("Eliciting new assertive expert evidence about relative likelihood in the form of percentages"). [109] In Ms. Swanson's submission, the actual effect of the trial judge's interventions on Mr. MacKinnon's claim is beside the point. Individually and cumulatively, she asserts, they gave rise to an appearance of partiality, and hence unfairness. 6.2 The impugned comments [110] These instances both occurred during closing submissions. [111] In the first, Ms. Swanson maintains that the judge offered Mr. MacKinnon advice on how to establish or improve his claim for past loss of income. It unfolded in the context of submissions by Mr. MacKinnon's counsel about a table he had created. The context was a comparison of two scenarios: what Mr. MacKinnon experienced with the collision, and what would have happened without the collision: COUNSEL: And so I really want to take the court to -- and what I think is the most important is page 56 where I've created a table. And I really want to dive into that table and explain what I've done and why because it's --

it's essentially what this whole thing hinges on, or at least this head of damage [past loss of income]. THE COURT: Okay. Did he -- did he back out LTD benefits? COUNSEL: He did not. THE COURT: Have you? COUNSEL: I have not. THE COURT: Because theoretically, the LTD benefits should come out. They are the subject matter of subro. I mean, they are a non-deductible collateral benefit because it's -- it's part of the negotiated union agreement. And so, you know, you may not have thought this through entirely, but you could make -- you could increase the claim for past loss of income accordingly by deducting out the LTD benefits, and you would not necessarily be required to pay them back to Pacific Blue Cross if your man has not been made whole. COUNSEL: I misunderstood the question. He has backed them out. They are not accounted for. THE COURT: Oh. COUNSEL: I've actually in our list of authorities the case of the Supreme Court of Canada from 1994, Cunningham - THE COURT: Wheeler, yeah. COUNSEL: And so, yes, I'm well aware. [112] The second comprises two passages in which, Ms. Swanson submits, the judge offered his thoughts on how a plaintiff could enhance the profitability of a future care claim by properly challenging the available section 83 deductions, even going so far as to prejudge the outcome of an application he invited Mr. MacKinnon to bring to tender additional expert

reports. Both passages are quoted above. I repeat them here for ease of reference. [113] In the first, the judge said this: THE COURT: Well, I'll tell you why. It's because you guys don't challenge them properly. Meckic v. Chan, I invited them to bring on their section 83 application. I told them I was prepared to allow cross-examination of the ICBC affiant and require production of documents from, you know -- internal ICBC documents because now finally the insurer comes out of the covers and is right in front of you. And, you know, if somebody ever chose to do it and really put the boots to the affiant, who's just signing a standard form affidavit, filled with lawyer speak, you know, you might find some judge prepared to say, "No. I'm not going to give the -- I'm going to let the court of appeal sort it out." But, you know, in that case, counsel didn't take the invitation. I mean, it wasn't that express, but it was, you know, subtly conveyed, I think, if I do say so myself. [114] In the second, the judge said: THE COURT: Well, no, okay, that's true, and I'm deeply cynical about those motives. You saw what I said in Meckic v. Chan. But on the other hand, you're still allowed to make an application to get additional -- additional reports. And I tell you if that application was made in front of me in a case like this, I'd say, "Fill your boots." So I'm with you, and it looks like

it's a strategy that's had some success. 6.3 Some Observations [115] I have difficulty in seeing either of these instances as Ms. Swanson would characterize them. [116] As I read the first instance, taking it in context, the judge was not offering Mr. MacKinnon advice about how to enhance his claim. Rather, the judge was seeking to clarify whether the table in front of him had accounted for long-term disability benefits. This was a proper inquiry because, as the judge noted, if the expert had included such benefits as a deduction, the result would have been wrong in law. The full amount would be claimable by Mr. MacKinnon, leaving it to Pacific Blue Cross to assert a subrogated claim for the portion equivalent to the benefits it had paid. [117] The second instance, as I see it, had nothing to do with enhancing any claim. I can't help but conclude, however, that Ms. Swanson's interpretation was fuelled at least in part by the judge's expression of personal opinions that were not helpful in resolving the issues in the case. The context related not to those issues, but rather to points raised by counsel: first, in explaining why his client was not advancing a future care cost claim, and second, in complaining generally about the restriction on expert reports. [118] Whether these comments nevertheless gave rise to an appearance of partiality, and hence unfairness, remains to be determined when viewed cumulatively with the other matters in the context of the record as a whole.

7. DISCUSSION 7.1 The cumulative effect of the interventions -- unfair? 7.1.1 Overview [119] As the authorities discussed above make clear, the assessment of whether judicial interventions cross the line of acceptability into the realm of unfairness (actual or apparent) is not an exercise in cherry-picking. The assessment must be based on the cumulative effect of the impugned incidents when viewed in the context of the record as a whole. [120] As I see it, this case may come close to the line, but it does not cross it. Ms. Swanson is "entitled to a trial that is fair, not one that is free from all imperfections": Tsoukas v Segura, 2001 BCCA 664 at para 76. I conclude that not only was the trial fair, but also a reasonable person attending throughout the trial and viewing the record, including the reasons for judgment, as a whole, would consider that Ms. Swanson had had a fair trial. 7.1.2 Some relevant factors [121] In coming to this conclusion, I note five factors that I consider provide important context that an impartial observer would have in mind in the particular circumstances of this case. [122] First, I bear in mind, as would an impartial observer, that Mr. MacKinnon's claim was very strong. It was supported by two expert witnesses with appropriate specialist expertise in the areas relevant to Mr. MacKinnon's claim. The judge was required to assess this expert evidence,

and did so. He found Dr. Giantomaso to be "an impressive and compelling witness whose opinions I accept without reservation (at para 41)." [123] Mr. MacKinnon's claim was also supported by a number of lay witnesses. The most important of these, of course, was Mr. MacKinnon himself, whose evidence the judge largely accepted, supported as it was by the other lay witnesses and the plaintiff's two medical experts. In addition, the judge found the evidence of Austyn MacKinnon to be (at para 32): deeply personal and compelling. It is not necessary to repeat all the details here but suffice it to say that I accept her testimony without reservation. Just like her husband's life, Mrs. MacKinnon's day-to-day existence has also radically changed. The strain on their relationship is significant. [124] While he felt it unfortunate that the court was not provided with comprehensive reports from Mr. MacKinnon's family physicians (at para 61), the judge nevertheless commented at para 62 (as quoted above at para 39) that the reports and testimony of the plaintiff's experts combined with the compelling evidence from the plaintiff and his collateral witnesses to support the judge's findings "overwhelmingly". [125] Second, I bear in mind, as would an impartial observer, that Ms. Swanson's case was very weak. As the judge observed at para 62, there was no "competing evidence from an appropriately

qualified expert on behalf of the defendant", and, of course, there was no lay evidence at all. Consequently, it is not at all surprising that the judge made the findings he did. Nothing in the defence challenged the evidence of Mr. MacKinnon's witnesses. Apart from proffering the evidence of Dr. Janicki, the defence relied entirely on cross-examination. But a review of the transcript discloses that the plaintiff's witnesses were not touched on cross-examination in any meaningful way. Moreover, nothing was brought out through cross-examination to support the defence of failure to mitigate, of which the defence led no evidence of its own. [126] I do not intend to suggest any criticism of defence counsel's cross-examination. The problem was twofold: the strength of the plaintiff's witnesses, and the absence of evidence from the defence. [127] During the parties' submissions, the judge raised with Ms. Swanson's counsel the problem of the state of the evidence in the context of Pacific Blue Cross's termination of benefits: But many of these arguments that you make about trying to reduce things, I can't help but think, man, you could have called -- you could have put that union agreement in evidence. You could have put the actual LTD policy in evidence. You could have called somebody from Pacific Blue Cross to say he was cut off because the guy unreasonably refused to cooperate. And

for all I know, there's way more to the story, back and forth, back and forth, back and forth. And, you know, they may actually have a defence. And if he -- if it's not excusable because of his medical condition, then, you know, you may -- you may say, well, it's not related to the accident in the true causation sense, and ergo there's no recovery for it. But as with many other aspects of this case, there's simply zero evidence on it beyond the man's own testimony under oath as to this is what happened and this is what I was told, which I think I have to accept. [128] The judge commented upon a similar absence of evidence concerning submissions made by Ms. Swanson's counsel about what Mr. MacKinnon might have done to follow up with mental health professionals: THE COURT: The absence of evidence here is -- because, you know, everything about this court of appeal trilogy is where is the evidence, man. Show me the evidence. And I know you make a bunch of suggestions that are perfectly sensible. I get it. But they kind of lack an evidentiary foundation. COUNSEL: I understand. And, I mean, part of our process was trying to get some of the evidence foundation. Unfortunately, if the evidence is not there, then we work with what we have. THE COURT: Yeah. If it ain't there, it ain't there, I suppose. Okay. All right. Where are we?... [Emphasis added.] [129] As for Dr. Janicki, I

understand that he was selected as an expert because of the disclosure during the course of the pretrial litigation of some evidence from a chiropractor who suggested the possibility of an injury of a neurosurgical nature. But that opinion was not part of his claim at trial. In the circumstances before the judge, I consider that it would have been open to him, in his role as gatekeeper, to exclude Dr. Janicki's evidence altogether as irrelevant, unhelpful, and unnecessary: Ganges Kangro Properties Ltd v Shepard, 2015 BCCA 522 at paras 40, 58; see also Dietterle v Vanguard Mortgage Investment Corporation, 2023 BCCA 425 at para 36. This is not because of any overall lack of expertise on the part of Dr. Janicki, but because his area of expertise did not directly relate to the issues in the case. He was not, the judge found, appropriately qualified. [130] Third, again connected to the evidence of Dr. Janicki, an impartial observer would understand that counsel preparing to cross-examine Dr. Janicki would seek the advice of his own expert (here, Dr. Giantomaso). Accordingly, he would learn nothing from Dr. Giantomaso's answers to the judge's admittedly misguided question that he would not have learned in any event, or that he needed to learn given the obvious shortcomings in Dr. Janicki's expertise and evidence. In fact, under cross-examination, Dr. Janicki agreed that Mr. MacKinnon

was experiencing chronic pain, that in a case like Mr. MacKinnon's he would defer to a physiatrist (like Dr. Giantomaso), that the type of sprain/strain type injuries Mr. MacKinnon suffered can cause chronic pain that results in psychiatric issues, that psychiatric issues can be disabling, and that he would defer to a psychiatrist about such issues. [131] Fourth, an impartial observer would note the absence of any objection by Ms. Swanson's counsel to any of the interventions of which Ms. Swanson now complains. As noted above, the lack of objection does not by itself eliminate the possibility of unfairness. It does, however, give some indication that the interventions in question were not perceived as unfair at the time. [132] For instance, I do not accept the assertion of Ms. Swanson that the judge's elicitation of the "new responsive expert evidence" foreclosed her from seeking leave to adduce late responsive opinion evidence from Dr. Janicki on the question of whether chronic pain was the cause of Mr. MacKinnon's shaking/palsy. Neither the judge nor Dr. Giantomaso in fact made that causal connection, and it remained open to Ms. Swanson's counsel to make all the submissions he wanted about that. Ms. Swanson did not attempt to apply for leave or raise any objection. Again, I consider that an impartial observer, familiar with the case as a whole, would understand, first, that

Dr. Giantomaso had not in fact given an opinion as to the cause of the shaking/palsy, second, that the more important point was whether the condition was a viable explanation for Mr. MacKinnon's failure to meet the requirements of Pacific Blue Cross, and, third, that the main problem defence counsel faced in presenting additional evidence from his expert was Dr. Janicki's lack of expertise in managing patients like Mr. MacKinnon. [133] The reality, which an independent observer would appreciate given the evidence, is that the judge did not elicit anything that Mr. MacKinnon's counsel was not going to elicit anyway. The difficulty Ms. Swanson faced arose not from what the judge did, but from what the defence did not do: tender a credible expert report from a person with appropriate medical expertise and experience. [134] That approach may work where the plaintiff and their witnesses are lacking in credibility and have given evidence wide-open to challenge on cross-examination. That was not the case here. As the judge commented at para 76: The Defence strategy seems to have relied upon effective cross examination of the Plaintiff's expert medical witnesses, an aspiration that was not realized in this case. [135] In my view, an impartial observer would come to the same conclusion. [136] Fifth, an impartial observer would have in mind the submissions made on Ms. Swanson's behalf in

relation to the result. [137] In those submissions, counsel for Ms. Swanson conceded that causation was not an issue, that the evidence established that as a result of the accident, the plaintiff suffered from sprain/strain injury to the neck, post-concussive symptoms that have largely resolved, headaches, and a somatic symptom disorder consistent with the opinion of Dr. Spivak. Counsel submitted that, consistent with the evidence of the plaintiff's experts, the psychological symptoms were of greater concern than the physical symptoms. [138] On the question of non-pecuniary damages, the defence submitted that the appropriate award, reduced for contingencies, would be in the range of $175,000, as compared to the net figure (reduced for contingencies) of $200,000 submitted by Mr. MacKinnon. The judge assessed non-pecuniary damages at $225,000, which he reduced by 20% for contingencies to a net award of $180,000. [139] For past loss of income, the defence agreed to the figure of $178,000 submitted by Mr. MacKinnon but argued that this figure should be reduced to $150,000 to take into account various contingencies, which really amounted to a submission that the plaintiff had failed to mitigate his loss. The judge found the defence of failure to mitigate to be unsupported by the evidence and awarded $178,000. [140] The greatest gap between the parties was, of course, in relation to

the claim for loss of future earning capacity. The parties agreed about the appropriate starting point but differed on the issue of contingencies. As we have seen, the judge assessed the relative without-accident likelihood of Mr. MacKinnon moving to the private sector in order to increase his without-accident income at 30%, as opposed to the 20% submitted by Ms. Swanson, and the 50% for which Mr. MacKinnon contended. He assessed the contingency for future significant medical improvement at 20%, which, as I commented above, arguably favoured the defence given the expert evidence. He declined the invitation of Mr. MacKinnon to award an additional amount for the prospect that his Pacific Blue Cross disability payments would not be restored. [141] Given the lack of evidence led by the defence to support its arguments, as noted above, and the relatively narrow gap between the positions, I do not see how an impartial observer could consider the judge's approach to be unfair notwithstanding the interventions of which Ms. Swanson complains. 7.1.3 The second, third and fourth categories [142] In my view, the group of interventions that Ms. Swanson submits gave an appearance of partiality, and therefore unfairness (the second, third and fourth categories reviewed above), would not reasonably be considered to have had that effect by an impartial observer of the trial as a whole, whether

viewed cumulatively with the first category or on their own. [143] The termination of benefits by Pacific Blue Cross was relevant and, I consider, appropriately dealt with. I see nothing sinister about the judge's comment that he may have something to say about disability insurers in his judgment. Ms. Swanson was not a disability insurer. The matter of the termination of the LTD benefits was raised by the witnesses, and whether that termination was justifiable was relevant to the assessment of the claim for loss of future income earning capacity. The judge's ultimate conclusion that the termination was likely wrongful reduced the plaintiff's claim against Ms. Swanson. [144] As discussed above, the judge did fail to distinguish between the role of Ms. Swanson as tort defendant and the role of ICBC as third-party liability insurer/no-fault benefits insurer. But, again, viewed cumulatively in the context of the record as a whole, I do not see that the judge's asides in this regard would contribute to a conclusion that Ms. Swanson had not had a fair trial. As I noted above, mere conflation is a problem of form rather than substance. Comments that suggested a concern about coverage for future care costs, as set out in paras 118-120 of the reasons for judgment (see para 102 above), would not, I think, have that effect because (a) Mr. MacKinnon was not advancing a claim for future

care costs, (b) Ms. Swanson nevertheless raised the issue as an argument, and (c) Ms. Swanson failed to lead appropriate evidence to support her submissions (see the judge's comments in paras 118 and 120 of his reasons for judgment). [145] Turning finally to the interventions described by Ms. Swanson as offering Mr. MacKinnon advice on enhancing his claim, I reiterate what I said above at paras 115-118. I do not think an impartial observer of the trial as a whole would interpret these comments in the way Ms. Swanson would have it. The first was a proper inquiry to ensure that the judge properly understood the expert evidence and that the table in front of him complied with the law, while the second comprised responses to counsel which came down to pointing out that it was open to counsel to make applications if they did not like the state of affairs of which they complained. 7.1.4 Conclusion [146] In conclusion, on this part of the appeal, it is my view that the judge's impugned interventions, viewed cumulatively in the context of the entire record, did not cause the trial to be unfair to Ms. Swanson, and an impartial observer of the trial as a whole would not conclude otherwise. [147] It is true, as I discussed above, that the judge should have left it to counsel to deal with any flaws in the opinion of Dr. Janicki, but there can be no doubt in the circumstances that nothing

would have changed if the judge had done so. It would also have been better, again as I discussed above, if the judge had sought submissions from counsel before proceeding to ask Dr. Giantomaso about the matter of Mr. MacKinnon's twitching/palsy. But Dr. Giantomaso did no more than to say that the palsy could be related to the chronic pain. It was clear that he could not say that it was so related. Given the lack of an objection and the fact that the judge did not incorporate the evidence into his assessment, both of which would be known to an impartial observer, I do not see a risk of an appearance of unfairness. [148] Considering the nature of the issues and the evidence at this trial, including the defence concessions, I am satisfied that the impugned interventions were not of a type that, as discussed in the cases reviewed above, made it impossible for defence counsel to perform their duty in advancing the defence, nor were they such as to suggest that the judge had placed the authority of his office on the side of the plaintiff. They did not preclude any party from telling their story in their own way (Ms. Swanson, of course, did not testify) or give rise to a reasonable impression that the judge had prematurely adopted a particular position in opposition to one of the parties. Rather, they seemed to arise largely out of concern with the lack of evidence adduced on Ms.

Swanson's behalf. [149] Importantly, viewing the interventions cumulatively, I do not think an impartial observer would conclude that the judge unfairly gave some advantage to Mr. MacKinnon over Ms. Swanson that did not arise naturally out of the state of the evidence the parties chose to adduce. [150] I would not accede to this ground of appeal. 7.2 Errors of law? [151] This section further addresses the complaints concerning the "new assertive expert evidence" and the "new responsive expert evidence". [152] Although Ms. Swanson characterizes these as errors of law, they are all evidentiary. The submission is that the judge erred in admitting the evidence when it was not compliant with the Rules of Court concerning the admissibility of expert evidence. [153] This Court has held that whether the preconditions of admissibility for an expert opinion are met is a question of mixed fact and law, for which, in accordance with Housen v Nikolaisen, 2002 SCC 33, the standard of review is palpable and overriding error: see Lush v Connell, 2012 BCCA 203 at paras 36-37. [154] As I indicated above, it would have been preferable for the judge to seek the submissions of counsel before asking Dr. Giantomaso about the shaking the judge had observed in the witness box and which was the subject of evidence from Mr. MacKinnon's wife. Although I think it fair to describe it as a palpable error for

the judge to ask Dr. Giantomaso, without notice or consultation with counsel, about whether he had seen such a thing in cases of chronic pain, the judge recognized that Dr. Giantomaso could not diagnose the problem and did not elicit expert evidence about any impact of this condition or its cause. What he sought was an understanding of what he had observed. He did not base his findings on anything Dr. Giantomaso said on the subject. The error, in short, had no impact on the result, and was therefore not an overriding one. [155] As to the matter of asking the experts to do their best to assess relative likelihood of future events in percentages, I have already said that a judge is entitled to attempt to clarify the imprecise statements often made by experts. The result may or may not be helpful. Experts can only do the best they can. But if they can be more specific, then I see nothing wrong with the judge encouraging them to be so, nor do I see what happened here as effecting a change in their opinions, as opposed to clarifying them. Moreover, whatever obiter complaints the judge may have made about the task he was obliged to undertake, he completed that task correctly and fairly. I do not see any error here. [156] I have already stated that in asking Dr. Giantomaso to comment upon Dr. Janicki's report, the judge violated the principle of party presentation (see paras 84-87

above) and in essence elicited expert evidence without appropriate notice. As such, what the judge did amounted to a palpable error. [157] I have also found that this error did not give rise or contribute to unfairness because of the state of the evidence. Dr. Janicki's report was arguably inadmissible in any event, and Mr. MacKinnon's counsel, with the advice of Dr. Giantomaso, would inevitably have made exactly the same points through cross-examination without the judge's intervention, given the report's shortcomings. For the same reason, I conclude that the error had no impact on the outcome of this case and, again, was therefore not an overriding error. [158] Accordingly, I would not accede to this ground of appeal.

8. DISPOSITION [159] For the reasons set out above, I would dismiss the appeal. "The Honourable Mr. Justice Grauer" I AGREE: "The Honourable Mr. Justice Fitch" I AGREE: "The Honourable Mr. Justice Butler"