A plaintiff failed to discharge her burden of proving her case in an uncontested trial. Her appeal was dismissed as the trial judge’s analysis of the evidence presented and conclusions reached were sound.
Background
The appellant provided attendant care services to the respondents, who had been injured in a 2011 motor vehicle accident in the United States of America. They had an oral agreement that the respondents would pay the appellant $2,000 per month for these services. According to the appellant, the oral agreement provided that she would invoice the respondents for the work she performed and they would pay the invoice out of any settlement funds received in their personal injury actions.
In total, the appellant was paid $66,500. The appellant claimed that the value of her services based on her time sheets and invoices was actually $642,633.77. The respondents did not pay this amount and the appellant sued them for the balance of her fees and claimed punitive damages in the amount of $50,000.
Trial Decision
A pre-trial direction stated that all evidence in chief was to be provided by affidavit. Neither respondent attended at trial and their affidavit evidence was not accepted. The trial judge proceeded with the uncontested trial based on the appellant’s affidavit and a document book containing her invoices, timesheets and other documents.
The trial judge dismissed the appellant’s action.
There were significant evidentiary issues with the claim. There was no documentary evidence of any oral agreement modifying the terms of the appellant’s compensation. The time sheets and invoices were inadmissible as they were not properly authenticated and the trial judge found that they were exaggerated, if not fabricated. Evidence of correspondence from one of the respondent’s former legal counsel was also rejected as they were subject to solicitor client privilege and there was no clear waiver of privilege from the respondent.
The trial judge concluded that the oral agreement was for the respondents to pay $2,000 per month for attendant care services and that the money already paid more than covered the balance owed. She dismissed the claim for general damages.
The trial judge also rejected the claim for punitive damages. The claim rested on legal documents that had not been proven at trial. The appellant did not satisfy the test for punitive damages as there was no evidence of an “actionable wrong” in addition to a breach of contract.
Issues on Appeal
Did the trial judge err by failing to properly consider r. 52.01(2) of the Rules of Civil Procedure, which provides that where a plaintiff attends trial and the defendant fails to attend, the trial judge may “allow the plaintiff to prove the claim”?
Held
There was no error. The appeal was dismissed.
Discussion
Rule 52.01(2) allowed the trial to continue without the defendants. The plaintiff still had the burden of proving her case. The trial judge allowed the plaintiff an opportunity to try to prove her case, but she had insufficient evidence to do so. Rule 52.01(2) does not require the trial judge to find in favour of the plaintiff. The evidence must still be considered and weighed.
The appellant argued that she did prove her case to the trial judge, based on the invoices, time sheets and other documents.
The Court of Appeal rejected this argument. The trial judge examined the uncontested evidence of the appellant, declined to consider inadmissible evidence and provided clear reasons for why the appellant failed to prove the oral contract, its breach and corresponding loss.
Since there was no breach of contract with corresponding loss, there was no basis for an award of punitive damages based on the same documents.
The trial judge’s analysis was sound. The appeal was dismissed.
