Pacheco v. Antunovich, 2015 BCCA 100
| Judge | Bauman, C.J.B.C., D. Smith and Harris, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | February 20, 2015 |
| Jurisdiction | British Columbia |
| Citations | 2015 BCCA 100;(2015), 368 B.C.A.C. 236 (CA) |
Pacheco v. Antunovich (2015), 368 B.C.A.C. 236 (CA);
633 W.A.C. 236
MLB headnote and full text
Temp. Cite: [2015] B.C.A.C. TBEd. MR.030
Pearl Kharenn Pacheco (appellant/plaintiff) v. Anthony J. Antunovich and Ante Antunovic (respondents/defendants)
(CA041605; 2015 BCCA 100)
Indexed As: Pacheco v. Antunovich
British Columbia Court of Appeal
Bauman, C.J.B.C., D. Smith and Harris, JJ.A.
March 10, 2015.
Summary:
The plaintiff sued for damages for injuries and losses sustained as a result of a motor vehicle accident. The plaintiff's vehicle was rear-ended by a vehicle owned by one defendant and operated by the other. Liability for the collision was admitted. The sole issue at trial was the assessment of damages.
The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 176, dismissed the action. The plaintiff had failed to prove on a balance of probabilities that she was injured as a result of the collision. The plaintiff appealed.
The British Columbia Court of Appeal allowed the appeal and ordered a new trial. The court held that the trial judge made palpable and overriding errors of fact regarding the mechanical nature of the collision, the lack of objective evidence of the plaintiff's injuries, and in rejecting her evidence because it was "grossly exaggerated".
Practice - Topic 8800
Appeals - Duty of appellate court regarding findings of fact by a trial judge - See paragraphs 1 to 45.
Practice - Topic 9224
Appeals - New trials - Grounds - General - See paragraphs 1 to 45.
Cases Noticed:
R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 23].
Jezdic v. Danielisz, [2008] B.C.T.C. Uned. H03; 2008 BCSC 1863, refd to. [para. 28].
Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 28].
Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), refd to. [para. 29].
Maslen v. Rubenstein (1993), 33 B.C.A.C. 182; 54 W.A.C. 182; 83 B.C.L.R.(2d) 131 (C.A.), refd to. [para. 29].
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, appld. [para. 33].
van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 1999 BCCA 6, refd to. [para. 33].
Fisher v. Fisher et al. (2009), 280 B.C.A.C. 293; 474 W.A.C. 293; 2009 BCCA 567, refd to. [para. 34].
Brown v. Golaiy (1985), 26 B.C.L.R.(3d) 353 (S.C.), refd to. [para. 39].
Counsel:
R.E. Rhodes, for the appellant;
J. Simon, for the respondent.
This appeal was heard on February 20, 2015, at Vancouver, B.C., by Bauman, C.J.B.C., D. Smith and Harris, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following decision for the court on March 10, 2015.
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Koltai v. Wang, [2015] B.C.T.C. Uned. 1346
...and the impact on medical evidence where a plaintiff's testimony is rejected by the trier of fact. [214] In Pacheco v. Antunovich , 2015 BCCA 100 the Court of Appeal overturned a trial judge's conclusions on a plaintiff's credibility. The Court focused on additional comments in Farnya that ......
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Ham v. Dhaliwal,
...R. v. H.C., 2009 ONCA 56; Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296; Pacheco v. Antunovich, 2015 BCCA 100. [48] This Court’s observations in Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10 are a......
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Mallier v. Falcomer,
...R. v. H.C., 2009 ONCA 56, Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296; and Pacheco v. Antunovich, 2015 BCCA 100. In Karim v. Li, 2015 BCSC 498 at para. 89, Justice Abrioux (as he then was) set out additional principles to be taken into consideration when ass......
-
L.C.T. v. R.K., 2017 BCCA 64
...conclusions as to credibility that are overly reliant on demeanour: R. v. N.S., 2012 SCC 72 at paras. 91-107; Pacheco v. Antunovich, 2015 BCCA 100 at para. 41-44. However, in this case, the judge’s comments on the appellant’s demeanour were situated within extensive evidence from both lay a......
-
Koltai v. Wang, [2015] B.C.T.C. Uned. 1346
...and the impact on medical evidence where a plaintiff's testimony is rejected by the trier of fact. [214] In Pacheco v. Antunovich , 2015 BCCA 100 the Court of Appeal overturned a trial judge's conclusions on a plaintiff's credibility. The Court focused on additional comments in Farnya that ......
-
Ham v. Dhaliwal,
...R. v. H.C., 2009 ONCA 56; Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296; Pacheco v. Antunovich, 2015 BCCA 100. [48] This Court’s observations in Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10 are a......
-
Mallier v. Falcomer,
...R. v. H.C., 2009 ONCA 56, Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296; and Pacheco v. Antunovich, 2015 BCCA 100. In Karim v. Li, 2015 BCSC 498 at para. 89, Justice Abrioux (as he then was) set out additional principles to be taken into consideration when ass......
-
L.C.T. v. R.K., 2017 BCCA 64
...conclusions as to credibility that are overly reliant on demeanour: R. v. N.S., 2012 SCC 72 at paras. 91-107; Pacheco v. Antunovich, 2015 BCCA 100 at para. 41-44. However, in this case, the judge’s comments on the appellant’s demeanour were situated within extensive evidence from both lay a......