The appeal arose from an assessment of damages following a motor vehicle accident. The respondents had admitted liability but at trial, the judge reduced several heads of damage, including special damages, by 70% based on a finding that the appellant had failed to mitigate her losses by not taking advantage of available pharmaceutical treatments.

The appellant argued that the trial judge failed to apply the correct test for mitigation, misapprehended evidence, and improperly assessed witness credibility.

The appeal was dismissed, except as it related to the 70% reduction applied to special damages, a point conceded by the respondents as those damages would have been necessary even if the appellant had properly mitigated her losses. The key arguments in support of the 70% reduction in other damages for failure to mitigate were accepted.

The key findings were:

• The trial judge applied the correct test for mitigation and his conclusion that the pharmaceutical treatments would have improved the appellant’s condition was supported by the evidence as a whole. 
• The appellant had not demonstrated the trial judge erred when assessing the amount of reduction to the contested parts of the damages award.
• The trial judge did not misapprehend the evidence of the expert witnesses; he was entitled to prefer one doctor’s evidence over others.
• The trial judge did not make a palpable and overriding error when assessing the appellant’s credibility.

In the result, the 70% reduction in the contested heads of damage was upheld.

View the full decision: Padgham v. Ram, 2025 BCCA 100.

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In this case, involving a 6-week jury trial and verdict regarding the extent of personal injuries and quantum of loss, Robert Brun, K.C. and Ryan Monty successfully represented the defendants in defeating an application by the plaintiff for a mistrial and preserved the jury’s verdict.

The plaintiff was injured in a motor vehicle accident and took issue with the jury awards claiming:

1. There was a conflict in ordering $0 for past loss of income and awarding any damages for loss of future income earning capacity, cost of future care, and special damages.
2. There was an inconsistency in awarding $0 for past loss income and the full amount of special damages.
3. The jury verdicts on past loss of income and loss of future earning capacity were unsupported by any evidence and were inordinately low.

The case involved jury instruction and interpretation of conflicting testimony provided by the experts on earnings projections called by the parties. The jury was found to have been properly instructed on how to approach the expert testimony and the trial judge walked through how the jury findings were not in conflict. Moreover, the trial judge held that juries are not obliged to accept the arguments of counsel or numbers (quantum) proposed by counsel nor is it for a trial court to justify precisely how a jury arrives at an award.

In this case, the plaintiff argued there was no evidence to support the jury verdicts and that in the case of the award for future earning capacity, in particular, the award was also too low. The court reviewed a variety of scenarios that the jury could have followed to arrive at its verdict based on the evidence that was before them. The key takeaway is that trial courts have very limited jurisdiction to refuse to enter judgment in accordance with a jury’s verdict.

Further, the court underscored that it is not within the scope of a trial judge’s jurisdiction to order a mistrial on the basis of a party’s argument that a jury award is too high or inordinately too low. That is the role of the Court of Appeal.

The application was ultimately dismissed with costs to the defendants.

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We know from personal experience that Jennifer is a thoughtful and dynamic leader. We are happy to see that she is being recognized for these qualities further afield. From her persuasive advocacy skills representing our clients to consistently contributing her time and expertise to the professional development of her colleagues and the evolution of our legal institutions, Jennifer is the epitome of a dedicated, modern leader. Congratulations Jennifer on recognition that is well-deserved.

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Although there was no direct evidence of the plaintiff using either substance before the first accident, there was sufficient evidence to allow the court to draw the inference that the plaintiff had started using the substances before the first accident. The evidence supporting the plaintiff’s position – that her addiction developed following the accidents – presented a considerable challenge to the defence: there was no evidence of addiction before the accidents; there was no evidence of impairment of the plaintiff’s vocational or personal functions before the accidents; the plaintiff’s family, friends and colleagues had not observed any signs of addiction before the accidents; and the plaintiff’s addiction-driven behaviour (criminal activity, seeking prescription opioids) all manifested after the first accident.

Despite the absence of direct evidence, the defendants demonstrated through the use of indirect and circumstantial evidence that the plaintiff was either already suffering from an addiction when the first accident occurred or would have gone on to develop an addiction, notwithstanding the accidents, given her risk factors including a history of substance use and access to drugs. Chief Justice Hinkson agreed with the defendants that the cause and trajectory of the plaintiff’s addiction were only temporally and not causally related to the accidents. The plaintiff was found to be a crumbling skull in the context of the addiction issue.

While the plaintiff sought an award of $743,040 at trial, the Court awarded the plaintiff $41,035.40 for all heads of damages for the two accidents. Post-judgment deductions from the award under s. 83 of the Insurance (Vehicle) Act, and costs, were resolved by consent.

The defendants were represented by Harris & Brun lawyers.

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Jennifer is one of the youngest practising lawyers ever to receive this honour.  She was called to the Bar of BC in 2010, and practised with a leading insurance defence firm in Vancouver, until coming to Harris & Brun Law Corporation in 2016, where she became a director in 2019. She was President of the Canadian Bar Association Young Lawyers from 2012-2013, and was on the Provincial Council and Board of the Canadian Bar Association BC Branch, serving as President from 2020-2021. In December 2021, Jennifer was appointed to the British Columbia Supreme Court Civil and Family Rules Committee, a highly influential position in governance of civil trial practice in the province.

She is very experienced in health law, and is the leader of the firm’s health law practice. Jennifer is the third lawyer in the firm to have “taken silk”:  proud father Robert Brun, QC, was first appointed as a Queen’s counsel in 2004, and fellow founder Lyle Harris, QC, received his appointment in 2009. Daughter and father have become a lethal “tag team” of lawyers in appearances in the Supreme Court and Court Of Appeal.

With Jennifer and strong fellow directors Erin Haupt, Mike Wilhelmson and Rebecca Buchanan, we have a team of senior barristers capable of effectively handling almost any civil trial assignment.  Your HBLC directors look forward to many more years of serving the public together.

Read the full news release from the Attorney General: Thirty lawyers appointed as Queen’s Counsel

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With great pride, the Directors of Harris & Brun Law Corporation congratulate fellow director Jennifer Brun on her appointment by the Attorney General to the British Columbia Supreme Court Civil & Family Rules Committee to represent the Canadian Bar Association – BC Branch. The Provincial Government describes the purpose of the Committee in the following terms:

The British Columbia Supreme Court Civil & Family Rules Committee (the “Rules Committee”) provides advice and makes recommendations on changes to the Supreme Court Rules that are fair, sustainable and have the public’s confidence.

The Rules Committee evaluates court rules changes proposed by members of the judiciary, the legal profession, government ministries and the public. It engages the legal profession, members of the public and other users of the courts. It also advises the Attorney General on issues affecting access to justice that might be addressed through the court rules.

Click to read the Committee’s Terms of Reference

The appointment of members from the private bar to the Committee is made by the Attorney General after appropriate consultation including reviewing formal expressions of interest and interviewing shortlisted candidates. To receive this appointment is an honour and an accomplishment. Jennifer’s five-year appointment to the Rules Committee is effective November 22, 2021 and runs to December 31, 2026.

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Jennifer Brun had the opportunity to give her thoughts to the Vancouver Sun on behalf of the Canadian Bar Association (BC Branch). She noted that civil juries provide important substantive individual rights. As such, Jennifer explained that the CBA(BC)’s view is that decisions affecting individual rights, particularly decisions that impact access to justice, should be based on empirical evidence. In this case, she noted a lack of actual statistical data, which is a concern that should be addressed as part of the decision-making process.

Read the full article: Legal groups concerned about possible abolition of civil juries in B.C.

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The Path to Reconciliation

I have always been a proud Canadian. When I backpacked internationally, I was certain to display my embroidered Canadian flag. I was taught that Canada’s social fabric is a mosaic, not a melting pot. Brightly coloured pieces of ethnicity, culture, language, racial identity, sexual orientation, and gender identity inlayed side-by-side, creating harmonious beauty. That everyone is equal before and under the law, and has the right to the equal protection and equal benefit of the law without discrimination. Recently, however, my utopian vision of Canada has been shattered.

In recognition of National Indigenous History Month in June, more than 500 radio stations across Canada collaborated to amplify, elevate, listen to, and learn from Indigenous voices with A Day to Listen on June 30. The collaboration followed public announcements of the remains of Indigenous children being found buried on the grounds of residential school sites within Canada. As I listened that day, I was struck by an elder citing the Christian hymn Amazing Grace. She spoke of the hymn having been written by the English poet and Anglican clergyman, John Newton. Briefly, Newton was conscripted into the Royal Navy, later became involved in the Atlantic slave trade, and after a near-death experience became an abolitionist. Amazing Grace was written to illustrate a sermon he delivered on New Year’s Day of 1773. The elder quoted from the first verse of the hymn, stating:

I once was lost, but now I’m found.
Was blind, but now I see.

She inferred that as Indigenous children are being found, Canada is no longer blind.

Canada’s residential school system was an education system in name only. These “schools” were created to weaken family ties and cultural underpinnings. They aimed to indoctrinate Indigenous children into the culture of the legally dominant Euro-Christian Canadian society.¹ The residential school experience has been hidden for most of Canada’s history, until survivors found the strength and courage to bring their experiences to light culminating in the largest class-action lawsuit in Canada’s history.

While many Canadians expressed shock and horror upon hearing of Indigenous children’s unmarked graves, Indigenous communities have known and shared this truth for decades while searching for their loved ones. The Truth and Reconciliation Commission (“TRC”) reported in 2015 that at least 6,000 children never returned home from attending residential schools. The CBA continues to call on government and the churches involved to fully implement and resource the TRC’s Calls to Action 71-76, which focus on missing children and unmarked burials. As CBA President Brad Regehr, member of the Peter Ballantyne Cree Nation in Saskatchewan, states: “Finding and returning these missing children is a necessary step toward healing for Indigenous peoples and communities — and for Canada as a whole — as well as a critical part of this country’s reconciliation journey.”

The historical and ongoing devastation of colonization experienced by Indigenous peoples in Canada remains prevalent. The systemic challenges — particularly in the criminal, child protection, and family justice sectors — demand our attention as a profession. Indigenous children continue to be removed from their families and communities today. We must do better. As the TRC executive summary preface states: “Getting to the truth was hard, but getting to reconciliation will be harder. It requires that the paternalistic and racist foundations of the residential school system be rejected as the basis for an ongoing relationship. Reconciliation requires that a new vision, based on a commitment to mutual respect, be developed.”

This is my last column as CBABC President and I would like to take this opportunity to personally acknowledge, with sorrow and regret, the significant harm done to Indigenous peoples as a result of the role the legal profession played in the implementation and enforcement of assimilationist government laws and policies. This happened under our watch.

Reconciliation will take time and effort from each of us. As lawyers — as warriors of justice — we are well positioned to lead the charge. We must work to atone for the role we played in Canada’s dark history and to achieve true reconciliation. Only then can we restore pride in our country and profession.

It has been an absolute honour and privilege to serve as your president. I am a better person and lawyer for having had the opportunity. Thank you.

1. Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015, Preface. |

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The plaintiff respondent, Ms. McColl, was a 25-year-old woman who had been injured in two car accidents. At the time of the accidents, she was building a career in the film and television industry. At trial, damages for loss of future earning capacity were directed to be calculated using male labour market contingencies, which had not been included in the expert evidence. The judge also directed the parties to calculate and agree to the present value of the plaintiff’s future loss on the basis of a set of assumptions and directions she provided, failing which the calculation was to be referred to the Registrar. The judge, having given no leave to return before her, left it to the parties to calculate a figure that was incorporated into the order without further submissions as to the overall fairness of the calculation.

We advanced two grounds of appeal.  First, that the trial judge erred in concluding that Ms. McColl’s award for loss of future income earning capacity should be calculated relying solely on labour market contingency tables for Canadian males; and second, in instructing the parties to calculate Ms. McColl’s loss of capacity on the basis of a list of directions and then delegating the resolution of any disagreement between the parties as to the correct calculation to a Registrar of the court.

The court found the trial judge’s reliance on the male statistics was “troublesome” and that male statistics should not be considered a default position. At para. 43, the court confirms that gender-specific statistics may incidentally align with a plaintiff’s gender but not invariably so. For example, female economic multipliers reflect a greater likelihood of leaving the workforce to care for children, so they may be appropriate for a male plaintiff who intends to be a “stay at home dad”.  Those same statistics may be inappropriate for a female plaintiff who intends to remain in the workforce without interruption. In every case, the burden is on the plaintiff to demonstrate their future losses. The legal framework to be applied with respect to the use of gender-based statistics is concisely summarized at para. 41.

It was also held the trial judge erred in failing to assess the overall fairness of the award and the court remitted the award for loss of future earning capacity for reconsideration to the trial judge in accordance with these reasons.  The court stated that armed with the present value calculation of the future loss, the parties should have been entitled to make further submissions to the judge as to the overall fairness and reasonableness of the loss of future earning capacity award taking into account all of the evidence. The court enunciated the factors that should be considered in such submissions at para. 79. Ultimately the court stated the judge’s judgment for loss of future earning capacity may approximate the present value calculation or it may be higher or lower. It is for her to decide taking into account all of the evidence and submissions from the parties.

Read the full decision McColl v Sullivan, 2021 BCCA 181

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The pandemic led to major disruptions in the justice system, but it also galvanized the court system and the legal profession to use available technologies and take the leap to virtual conferencing and hearings. The success of a step that was taken out of necessity has demonstrated that it is possible to move more quickly towards modernizing the province’s justice system and opened the door to other possibilities.

Jennifer notes that, “[we] now have a unique opportunity to make significant changes that ensure access to justice and fairness for all British Columbians.” The report provides a roadmap for capitalizing on that opportunity.

Read: Canadian Bar Association’s B.C. branch releases report outlining agenda for justice in the province.

Jump to the report: Agenda for Justice 2021

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