In Insurance Corporation of British Columbia v. Liang, 2026 BCCA 263, the BC Court of Appeal dismissed ICBC’s appeal from a jury award arising from a 2019 motor vehicle accident. The Court reiterated the importance of making evidentiary objections at trial giving considerable deference to the jury’s $4.09 million assessment.
The claimant was a passenger in a vehicle stopped at a red light when it was struck at high speed. Following a nine-day jury trial, the claimant was awarded $509,000 for past loss of earning capacity, $3,111,150 for future loss of earning capacity and $465,242 in non-pecuniary damages. ICBC sought a new trial, principally challenging evidence concerning the claimant’s substantial pre-accident earnings in China.
Admissibility of the Chinese Income Documents
An important part of the claimant’s loss of earning capacity case was a group of Chinese tax and income records. The documents indicated that between 2014 and 2017 the claimant earned approximately $1.41 million Canadian.
At trial, ICBC objected to the documents on the basis of authenticity. However, it did not make the broader hearsay and procedural fairness objections it later advanced on appeal. ICBC did not request a voir dire or seek to cross-examine the claimant before the documents were entered as exhibits. It also agreed with the procedure proposed by the trial judge for dealing with the documents.
New Evidentiary Objections on Appeal
The Court of Appeal refused ICBC’s new arguments concerning hearsay and procedural unfairness.The difficulty for ICBC was that these were not the objections it made when the evidence was tendered.
A party cannot ordinarily proceed at trial on one evidentiary position and then, after an unfavourable result, advance different objections for the first time on appeal.
This aspect of the decision is not new law but important for trial practice. Evidentiary objections must be clearly identified when the evidence is tendered so that the trial judge has an opportunity to rule on the issue and the opposing party has an opportunity to respond or correct any deficiency. ICBC’s failure to do so was fatal to this ground of appeal.
Deference to the Jury’s Damages Award
ICBC further argued that the jury’s loss of earning capacity award was unsupported or perverse. The Court of Appeal also rejected this argument.
There was evidence independent of the disputed documents supporting the claimant’s earnings history. Both the claimant and his wife testified regarding the income he earned in China, and this evidence was not challenged in cross-examination. Significantly, the jury awarded less than the claimant had sought and less than his historical Chinese earnings might otherwise have supported. The verdict therefore had an evidentiary foundation and was entitled to appellate deference.
The Court referred to Niescierowicz v. Brookes, 2026 BCCA 186, wherein the Court stated, “an appellate court must not interfere with a jury verdict unless the jury has come [to] a conclusion that no reasonable person could have arrived at: Ferrill v. Cockburn, 2024 BCCA 245, at para. 3, referring to McCannell v. McLean, [1937] 3 S.C.R. 341, 1937 CanLII 1. The question is “whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to evidence precludes the conclusion reached by the jury”: Albert v. Politano, 2013 BCCA 194, at para. 36, citing R v. H. (W.)., 2013 SCC 22, at para. 2. Evidentiary conflicts are to be resolved in favour of the respondent: Albert, at para. 28.”
ICBC also applied to introduce fresh evidence from an accountant regarding the claimant’s tax residency, which the Court again rejected.
Outcome
The appeal was dismissed and the jury award remained intact.The case is a useful reminder that an appeal is not an opportunity to repair trial strategy or advance evidentiary objections that could have been made at trial.
This case also illustrates how a powerful monopoly such as ICBC can use the appeal process, even where the governing law is clear, to impose further delay, expense and uncertainty on a claimant who has already succeeded at trial, effectively turning the litigation process itself into an additional form of punishment.
