Cron v Libby, 2024 ABCA 25

In the Court of Appeal of Alberta Citation: Cron v Libby, 2024 ABCA 25 Date: 20240123 Docket: 2301-0091AC Registry: Calgary Between: Jonathan Cron Appellant - and - Brittany Libby Respondent _______________________________________________________ The Court: The Honourable Justice Michelle Crighton The Honourable Justice William T. de Wit The Honourable Justice April Grosse _______________________________________________________ Memorandum of Judgment Appeal from the Decision by The Honourable Justice C.J. Feasby Dated the 24th day of March, 2023 ( 2023 ABKB 167 , Docket: 2101 12896)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [1] This is an appeal from a decision dismissing the appellant’s action for defamation against the respondent, granting therespondent’s counterclaim, and ordering the appellant to pay punitive damages: Cron v Libby, 2023 ABKB 167. The matter was heard byway of

summary trial. The trial judge heard viva voce evidence as well as affidavit evidence. The appellant was represented by counselat trial and is now self-represented. [2] The defamatory statements relate to two incidents where the respondent’s truck was vandalized. The respondent madestatements to others that the appellant had vandalized her truck. The respondent testified that on the first occasion, she viewed imagesfrom a camera recording showing a person of similar build to the appellant near the truck. She also testified that she observed theappellant next to her truck on the second occasion.

The appellant denied he vandalized the respondent’s truck and asserted an alibiplacing him out of town at the time the second act of vandalism occurred. [3] The trial judge applied the test for defamation set out in Grant v Torstar Corp, 2009 SCC 61 at para 28, as affirmed in Bent vPlatnick, 2020 SCC 23, and concluded that the appellant had established the elements of defamation and further held that the respondenthad established the defence of justification. He found that on the civil standard balance of probability, the appellant had vandalized therespondent’s truck.

The trial judge disbelieved the appellant’s alibi. [4] On the counterclaim, the trial judge granted the respondent $8,968.74 for the cost to repair the damage to her truck. The trialjudge also granted the respondent $5,000 for punitive damages. The appellant’s current partner and the respondent are embroiled in afamily law dispute.

The trial judge held that the appellant committed the acts of vandalism to intimidate the respondent, cause herfinancial harm, and prevent her from exercising the court-ordered access to the child. [5] On appeal, the appellant argues that the trial judge erred in his credibility assessments, that his counsel was ineffectiveresulting in a miscarriage of justice, and that the respondent perjured herself. [6] The appellant filed an application to admit new evidence on appeal to support the ground that ineffective assistance ofcounsel resulted in trial unfairness.

Where an appellant claims ineffective assistance of counsel, the test for admitting fresh evidence iswhether the admission of the fresh evidence is in the interest of justice: CB v BM, 2021 ABCA 266 at para 76. The test for admissionunder Palmer v The Queen (1979), (SCC), [1980] 1 SCR 759, 50 CCC (2d) 193, is less applicable. [7] In this case, it is unclear which of the fresh evidence supports an ineffective assistance of counsel claim. The evidence isunsworn and could have been adduced at trial. The appellant has not advised his former counsel of his allegations of ineffectiveassistance.

Moreover, we see nothing in the new evidence package that could reasonably, when taken with the other evidence adduced attrial, be expected to support a claim or would have affected the outcome on this record. [8] Turning now to the merits of the appeal. [9] The appellant argues that the trial judge erred in finding the respondent a credible witness and accepting her version ofevents. Credibility was a key issue at trial in determining whether the respondent had established the defence of justification. Therespondent testified she saw the appellant vandalize the truck; the appellant denied that he did.

Thus, the question before the trial judgewas whether it was more likely than not that the appellant vandalized the respondent’s truck. [10] The parties in a civil case must establish the case on a balance of probabilities. This is unlike the standard in criminal cases ofproof beyond a reasonable doubt. The balance of probabilities is a well-known standard, and requires that the evidence be “clear,convincing and cogent”: FH v McDougall, 2008 SCC 53 at para 46.

The trial judge did not, and was not, required to make a finding thatit was proven beyond a reasonable doubt that the appellant vandalized the respondent’s truck. [11] A trial judge’s credibility findings are owed great deference because a trial judge is in a distinctly privileged position when itcomes to assessing the credibility of witnesses: Housen v Nikolaisen, 2002 SCC 33 at para 25.

Further, it is well-established thatassessing credibility is not a science. “It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”: FH at para72, citing R v Gagnon, 2006 SCC 17 at para 20. [12] There are a number of factors a court will consider when assessing credibility. Some factors will be more probative thanothers depending on the circumstances of the case.

Of particular relevance to this case is whether a witness has a motive to lie and theinherent improbability and implausibility of the witnesses’ evidence: see, for example, Bradshaw v Stenner, 2010 BCSC 1398 at para186. It is for the trial judge to scrutinize the evidence to determine the extent to which the circumstances suggest that an alleged event isinherently improbable and to take that improbability into account in assessing whether it is more likely than not that the event occurred:

FH at para 48. There is also no rule as to when inconsistencies in a witnesses’ evidence will cause a trial judge to conclude that a witnessis not credible or reliable.

While minor inconsistencies on their own may not diminish the credibility of a witness, a series ofinconsistencies may become quite significant: FH at para 57, citing R v B(RW) (1993), 24 BCAC 1, 19 WCB (2d) 260 at para 29. [13] In Faryna v Chorny (1951), (BC CA), [1952] 2 DLR 354 at 357, 4 WWR (NS) 171, the British ColumbiaCourt of Appeal framed the test for credibility in the following terms: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [14] Here, the trial judge disbelieved the appellant’s alleged alibi, finding the appellant’s story implausible, at para 31: It is possible that Mr. Cron and Mr.

Grippo made an impromptu and very brief trip to Whiteswan Lake Provincial Park on the night ofJuly 1, 2021. If this were a criminal case, I might be left with a reasonable doubt. But this is a civil case and the story seems veryunlikely to me to be true. Specifically, I find it difficult to believe that Mr. Cron and Mr. Grippo started a long motorcycle trip late onCanada Day to a campground approximately four hours away knowing that Mr. Cron had to be back in Calgary at work by 8am thefollowing day.

The lack of any corroboration in the form of contemporaneous text messages, photographs, or receipts for gas only makesthe story less plausible in my view. [15] The trial judge also found that the appellant had a motive to lie because the appellant admitted to bringing this lawsuit toimpose financial hardship on the respondent. [16] On the other hand, the trial judge believed the respondent’s evidence.

He found the respondent arrived at reasonableconclusions regarding her observations and the connection between the two incidents, he accepted her evidence that she did not vandalizeher own truck, and he found that her evidence was corroborated by the testimony of other witnesses. [17] The trial judge had the benefit of seeing the appellant and respondent testify in court. He conducted a rigorous assessment ofthe appellant and the respondent’s credibility in light of all the other evidence presented at trial.

The appellant has failed to identify apalpable and overriding error in the trial judge’s credibility assessment and we dismiss this ground of appeal. [18] The appellant next argues that he had ineffective assistance of counsel.

He argues that his lawyer failed to submit evidencethat supported his alibi, failed to submit evidence regarding the underlying family law dispute, failed to follow instructions, and failed tobring to the court’s attention inconsistencies in the respondent’s testimony. [19] While a miscarriage of justice caused by ineffective assistance of counsel can be a ground of appeal in criminal cases, it maybe a ground of appeal in only the rarest of civil cases: CB v BM at paras 72-73.

As noted in CB v BM, in the civil context, decisions inother provinces have limited this ground of appeal to cases involving some overriding public interest or engaging the interests ofvulnerable persons. This is not one of those cases. The appellant’s complaints about the quality of legal representation can be addressedthrough other means. [20] There are sound policy reasons for the general rule that appellate courts are not generally permitted to second-guess counsel’strial strategy in civil cases.

If courts routinely reconsidered strategic choices of counsel it would result in needless duplication of judicialproceedings, prejudice to litigants with fewer resources, and frustrate the goal of providing an efficient and effective remedy for theparties: see Mallet v Administrator of the Motor Vehicle Accident Claims Act, 2002 ABCA 297 at paras 58-60 per Fruman JA(concurring), citing Housen at para 16. Further, whether counsel followed instructions is an issue between the appellant and his triallawyer, not the respondent. The respondent is entitled to receive the benefit of the judgment she has won.

This is different from acriminal case where the liberty of the accused is at stake. [21] As stated earlier, we are satisfied that there is nothing in the new evidence package that could reasonably be expected to haveaffected the result. In closing submissions at trial, counsel for the appellant made clear that his client’s position was that the respondentwas not credible or reliable. Counsel highlighted the evidence he said supported his client’s position, including alleged inconsistencies inthe respondent’s evidence.

For those reasons, we dismiss this ground of appeal. [22] The additional relief sought by the appellant in his factum is not properly before this Court and we decline to address it. [23] The appeal is dismissed. Appeal heard on January 18, 2024 Memorandum filed at Calgary, Alberta this 23rd day of January, 2024

Authorized to sign for: Crighton J.A. de Wit J.A. Grosse J.A. Appearances: Appellant, J. Cron Respondent, B. Libby