S.M. v. D.D.R., (1996) 79 B.C.A.C. 81 (CA)

• Judge: Southin, Newbury and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 04, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 79 B.C.A.C. 81 (CA)

S.M. v. D.D.R. (1996), 79 B.C.A.C. 81 (CA);

    129 W.A.C. 81

MLB headnote and full text

S.M., also known as S.M.C., S.M.R. and S.L. (plaintiff/appellant) v. D.D.R. (defendant/respondent)

(CA019465)

Indexed As: S.M. v. D.D.R.

British Columbia Court of Appeal

Southin, Newbury and Huddart, JJ.A.

July 26, 1996.

Summary:

The plaintiff sued her stepfather for dam­ages for sexual assaults by him when she was from age five to 14. The trial judge dismissed the action for lack of proof on a balance of probabilities that the assaults took place. The plaintiff appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting, allowed the appeal and ordered a new trial.

Evidence - Topic 125

Degree, standard or burden of proof - Burden of proof - Burden of proof in civil actions - Evidence equally balanced - The plaintiff sued the defendant for damages for sexual assaults - The only issue was credibility - The trial judge was unable to decide if the abuse took place or not - He ruled the plaintiff failed to prove her case on a balance of probabilities - The British Columbia Court of Appeal held that the onus of proof was the determining factor here, where the evidence was otherwise equally balanced - Because the trial judge misapprehended one item of evidence, and thus drew an adverse inference against the plaintiff, the balance of probabilities was unfairly tipped against the plaintiff and the judge's conclusion wrong - The court ordered a new trial.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 4].

Robins v. National Trust Co., [1927] A.C. 515 (P.C.), refd to. [para. 5].

Steele-Wells v. Mahood et al. (1995), 56 B.C.A.C. 192; 92 W.A.C. 192; 4 B.C.L.R.(3d) 57 (C.A.), refd to. [para. 16].

Smith v. Smith and Smedman, [1952] 2 S.C.R. 312, refd to. [para. 29].

Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257; 49 B.C.R. 28 (C.A.), refd to. [para. 47].

Morrison v. Coulter et al. (1991), 1 B.C.A.C. 48; 1 W.A.C. 48; 56 B.C.L.R.(2d) 353 (C.A.), refd to. [para. 47].

Morrison v. Hicks - see Morrison v. Coulter et al.

Mandzuk v. Vieira (1983), 43 B.C.L.R. 347 (S.C.), refd to. [para. 49].

Counsel:

B.J. Yates, for the appellant;

J.W. Williams and A.G. Strang, for the respondent.

This appeal was heard in Vancouver, British Columbia, on June 4, 1996, before Southin, Newbury and Huddart, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on July 26, 1996, and the following opinions were filed:

Huddart, J.A. (Newbury, J.A., concur­ring) - see paragraphs 1 to 18;

Southin, J.A., dissenting - see para­graphs 19 to 79.