Court of Appeal Grants Our Client a New Trial, Overrules Insurance Company Victory Due to Unfair Tactics

Posted on by Mussio Goodman

We are pleased to announce that the British Columbia Court of Appeal has ruled in our client’s favour in Han v. Park 2015 BCCA 324.

In 1999, our client was involved in an car accident which caused significant injuries and substantial wage loss over the following years.

Prior to hiring our firm, she was represented by another lawyer during her initial trial in 2013. Unfortunately, and in part to several strategic and legal mistakes, our client was awarded only a fraction of what she sought, and what her claim is actually worth.

Understandably, our client sought to challenge what she believed was a miscarriage of justice. We agreed to help and successfully appealed the jury’s decision to the BC Court of Appeal on several grounds.

The Court of Appeal agreed that the trial judge was in error by allowing the jury to read several documents that were largely irrelevant to her case and only served to prejudice our client. It is not unusual for an ICBC defense lawyer to attempt such tactics, but unfortunately our client’s previous lawyer did not raise any objections.

However, we argued and the Court agreed that the trial judge should have properly exercised her function as a gatekeeper and prohibited such inflammatory evidence from being viewed by the jury. The Honourable Madam Justice Stromberg-Stein, writing for the unanimous three-judge panel, ruled as follows:

[34] …The inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35] The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36] In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37] On this ground alone, it is in the interests of justice to order a new trial.

Our client has been fighting for fair compensation from ICBC for over 15 years, and we are proud to have played a supporting role in her journey. This case is also a reminder from the highest Court in our province that the unfair tactics employed by ICBC and their lawyers will not be tolerated.