ICBC claimed bias of the trial judge in the following ICBC injury case. The Court of Appeal disagreed with ICBC, BC’s auto insurance monopoly. In particular ICBC claimed, without success that it was unfair that the judge:
- Expressed cynicism about the legislature’s motives in limiting the number of expert reports that can be commissioned;
- Commented that legislated provisions are designed to protect the financial interests of ICBC;
- Insinuated that ICBC had a secretive agenda that needed to be exposed; and
- Questioned ICBC’s conduct in relation to the payment of future care damages or accident benefits.
Responsive Opinion Evidence
The case Swanson v. MacKinnon, 2024 BCCA 95, dealt with the issue of responsive opinion evidence within the context of trial fairness. The appellant, ICBC defendant Swanson, sought a new trial, claiming that the trial judge’s interventions and elicitation of expert evidence led to an unfair trial. The primary legal contention revolved around whether the judge improperly elicited assertive and responsive opinion evidence from expert witnesses, thus breaching the principle of party presentation.
Breaching the Principle of Party Presentation
Eliciting New Evidence
The first category of concern was the judge eliciting new expert evidence, particularly regarding Mr. MacKinnon’s shaking condition observed during the trial. Mr. MacKinnon testified that he developed shaking a few months before the trial, which was not noted by his experts, Dr. Mitchell Spivak and Dr. Tony Giantomaso, who examined him months before. The judge, having observed the shaking, questioned Dr. Giantomaso about it. The appellant argued that this intervention introduced new evidence that the defence was unprepared for and had not been disclosed prior to the trial, thus breaching the principle of party presentation.
In asking Dr. Giantomaso to comment upon Dr. Janicki’s report, the Court of Appeal found the judge violated the principle of party presentation and elicited expert evidence without appropriate notice. As such, what the judge did amounted to a palpable error. However, the Court of Appeal concluded that the error had no impact on the outcome of this case and was therefore not an overriding error.
Eliciting Percentage Likelihoods
The second concern involved the judge asking the experts to express the likelihood of Mr. MacKinnon’s return to work as a percentage. Dr. Giantomaso estimated a 50% chance of partial return to work, while Dr. Spivak assessed a 0-10% likelihood of significant improvement. The appellant contended that this shifted the experts’ opinions from their original reports, creating new evidence that was not part of the pre-trial disclosures.
Eliciting Responsive Expert Evidence
The third issue was the judge asking Dr. Giantomaso to comment on the opinion of Ms. Swanson’s expert, Dr. Ryan Janicki, without prior notice. Dr. Giantomaso criticized Dr. Janicki’s conclusions, emphasizing the latter’s lack of experience with chronic pain management. ICBC argued that this elicited new responsive expert evidence, again without proper notice, which was inadmissible under the rules governing expert evidence.
Comment Indicating Prejudgment of the Merits
ICBC also took issue with the judge’s comments, suggesting a potential bias. During the cross-examination of Mr. MacKinnon’s wife, the judge remarked that he would have something to say about disability insurers in his judgment. The appellant argued that this indicated the judge might have prejudged the merits of the case before hearing the defence’s evidence.
Conflating the Tort Defendant with Her Insurers
The appellant claimed that the judge made comments that conflated the tort defendant (Ms. Swanson) with her insurer (ICBC). This included musings about the nature of the motor vehicle compensation scheme and expressing cynicism about the legislature’s motives in limiting expert reports. These comments, according to the appellant, created an appearance of partiality and thus unfairness.
Enhancing Mr. MacKinnon’s Claim
The appellant highlighted instances where the judge appeared to advise Mr. MacKinnon on how to improve his claim. This included suggesting that LTD benefits should be backed out of past income loss calculations and expressing willingness to allow additional expert reports to challenge ICBC’s deductions. These interventions, argued the appellant, gave an appearance of the judge aiding the plaintiff, which could be seen as partial.
Cumulative Effect and Conclusion
The Court of Appeal considered whether these interventions, viewed cumulatively, rendered the trial unfair. It concluded that while some interventions were problematic individually, they did not cumulatively amount to unfairness. The trial judge’s actions did not significantly disadvantage the appellant, given the strength of the plaintiff’s case and the weaknesses in the defence. Thus, the appeal was dismissed, affirming the trial’s fairness despite the imperfections.
Conclusion of the Court of Appeal
The Court of Appeal found that the trial judge’s interventions, although occasionally crossing the line, did not cumulatively render the trial unfair. As Judge Grauer points out:
[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)
