Executive Summary: Key Legal and Evidentiary Issues

• ICBC appealed a jury's damages award to Yuan Kuo "Michael" Liang for past and future loss of earning capacity following a 2019 motor vehicle accident in which he was seriously injured as a passenger.
   
• Central to the appeal was the trial judge's admission of Chinese tax documents (the "Chinese Documents") recording Mr. Liang's income earned in China from 2014 to 2017, which ICBC argued were improperly admitted and used for an inadmissible hearsay purpose.
   
• Procedural fairness grounds were rejected because ICBC failed to raise its objections — including the lack of a voir dire and late production of the translated documents — at trial.
   
• Allowing ICBC to introduce post-trial expert opinion evidence from an accountant on Mr.Liang's Canadian tax reporting obligations was refused, as this raised a new issue never advanced at trial and would have been prejudicial to the interests of justice.
   
• Both parties' applications to adduce additional evidence of pre-trial communications and procedures were allowed, as that evidence went to the procedural fairness issue raised by ICBC on appeal.
   
• Jury verdicts are subject to a highly deferential standard of review, and the award of $509,000 for past loss of earning capacity and $3,111,150 for future loss of earning capacity, along with $465,242 in non-pecuniary damages, was supported by the evidence and was not perverse.

Facts of the case

Yuan Kuo "Michael" Liang was born in China and came to Canada as an international student in 2003. He graduated from Simon Fraser University in 2011 with a Bachelor of Arts in Economics and, after working as a realtor's assistant earning approximately $40,000 per year, obtained his real estate licence in BC in 2012. He married in 2013 and has two children, born in 2016 and 2021 respectively. From 2014 to 2017, Mr. Liang became involved in a business venture in China importing and selling maternity and baby products and children's clothing. Over those four years, he earned a total equivalent to approximately $1,411,056 CAD, or approximately $352,764 on average per year, as recorded in Chinese tax documents (the "Chinese Documents") issued by Chinese tax authorities. In 2017, he returned to Vancouver and opened a high-end children's clothing store (the "Business") in 2018, with long-term plans to franchise in Canada and China.

In 2019, Mr. Liang was a passenger in a vehicle stopped at a red light when another driver struck it at high speed. His injuries were severe enough that his position at trial was that he would be unlikely to work again, while ICBC's position was that he might eventually manage part-time work. ICBC defended the claim as the third party insurer. The underlying action was tried by jury before the Supreme Court of British Columbia commencing March 31, 2025, running for nine court days (Liang v. Faysal, Vancouver Docket S215089). The jury awarded Mr. Liang $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 appealed to the Court of Appeal for British Columbia.

Policy terms or legislative provisions at issue

The evidentiary dispute centred on the admissibility of the Chinese Documents. ICBC argued on appeal that the documents did not satisfy the common law business records exception, nor the statutory business records exception under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. ICBC further argued that the documents were admitted for an impermissible hearsay purpose and that the trial judge's jury charge — which described the Chinese Documents as "supporting" Mr. Liang's evidence — reinforced that improper use. On the separate question of whether ICBC could raise a new issue on appeal, the court applied the test from Gorenshtein v. British Columbia (Employment Standards Tribunal), 2016 BCCA 457, which requires consideration of whether the issue is truly new, whether the evidentiary record is sufficient to decide it, and whether the interests of justice support granting an exception to the general rule against hearing new issues on appeal.

Reasoning and analysis

ICBC's sole objection at trial to the Chinese Documents was as to authenticity, and it was brief and unelaborated. Counsel for ICBC did not request a voir dire, did not complain at trial that the formal translation had been provided only five days before trial commenced, and did not object to the trial judge's draft jury charge referring to the Chinese Documents as supporting Mr. Liang's evidence. On appeal, ICBC advanced procedural fairness objections, hearsay objections, and complaints about the jury charge — all of which were new arguments not made at trial. The Court of Appeal noted that where no objection is taken at trial, the assumption is that any transgression could not have been seriously misleading or unfair: Brophy v. Hutchinson, 2003 BCCA 21. The Court further found that ICBC had not demonstrated any prejudice from the timing or process, noting that ICBC's counsel had received the substance of the Chinese Documents — Mr. Liang's annual Chinese income — in a letter from Mr. Liang's counsel dated May 12, 2023, nearly two years before trial.

On the hearsay use issue, the Court held that even if the Chinese Documents had been erroneously admitted for a hearsay purpose, this would not warrant appellate interference given the oral evidence of both Mr. and Ms. Liang — neither of whom was challenged in cross-examination as to the Chinese earnings — and corroborating circumstantial evidence including Mr. Liang's purchase of a Lamborghini for approximately $300,000 and the use of his savings to capitalize the Business. A properly instructed jury acting reasonably would necessarily have reached the same conclusion.

ICBC's application to introduce post-trial expert opinion evidence from accountant Tony Volpe — opining that Mr. Liang, as a likely Canadian tax resident at the time, should have reported his Chinese income on his Canadian tax returns — was dismissed. The Court found that this raised a wholly new issue that ICBC had never advanced at trial, that the evidentiary record was insufficient for the court to determine the issue's relevance to credibility, and that it would be highly prejudicial and contrary to the interests of justice to permit ICBC to raise it on appeal.

On the question of whether the jury verdict was perverse, the Court applied the highly deferential standard confirmed in Wolber v. Ivanova, 2024 BCCA 203: a jury verdict will not be set aside unless it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. The Court found the jury award was supported by the evidence, noting it was considerably less than what Mr. Liang's expert economist Darren Benning had identified as average earnings for a male with an economics degree, and was premised on earnings considerably less than what Mr. Liang had earned in China.

Ruling and overall outcome

The Court of Appeal, per Justice Griffin (Justices Winteringham and Riley concurring), dismissed ICBC's appeal in its entirety. Both parties' applications to adduce additional evidence of pre-trial communications and procedures were allowed; ICBC's application to adduce Mr. Volpe's expert opinion evidence was dismissed. The successful party was Mr. Liang. No costs order is specified in the judgment; the quantum of costs was not stated.