Background
Kelsey Salerno brought a personal-injury claim arising from a motor vehicle collision. She sought more than $1.5 million at trial, but the jury awarded $174,000: $100,000 in non-pecuniary damages, $50,000 for loss of future earning capacity, and $24,000 under other pecuniary heads.
In its earlier decision, Salerno v. Sahota, 2026 BCCA 182, the Court allowed Salerno’s appeal on one of two grounds. It rejected her challenge concerning references to fibromyalgia but held that the trial judge had incorrectly instructed the jury that future earning-capacity loss was usually valued as a multiple of annual income. The Court set aside the $50,000 award under that head and remitted it for judge-alone reassessment. These supplementary reasons addressed whether Salerno’s partial victory entitled her to appeal costs.
The Court’s Holding
The Court held that Salerno was substantially successful and awarded her the costs of the appeal. Substantial success does not require success on every ground and is not determined by simply counting successful and unsuccessful arguments. The Court instead assesses the judgment’s overall effect, exercising discretion in light of a broad range of factors.
Although Salerno succeeded on only one ground, that success set aside the $50,000 future earning-capacity award and secured a limited retrial before a judge alone. At that reassessment, she may seek a potentially much higher award, having argued at trial for between $512,640 and $776,739 under that head. The practical significance of this relief amounted to substantial success.
Key Takeaways
- Substantial success on appeal is assessed by the judgment’s overall effect, not by tallying the grounds won and lost.
- An appellant may receive appeal costs despite succeeding on only one of multiple grounds.
- Setting aside a damages award and obtaining a new assessment that could produce a materially higher award constituted substantial success here.
Why It Matters
The decision underscores the practical, outcome-focused approach Canadian appellate courts may take when allocating costs after mixed success. A party’s failure on a broader ground does not preclude costs where the relief actually obtained is significant.
For litigators, the reasons also show that the financial and procedural consequences of a successful ground—including the opportunity to pursue a substantially larger damages award on reassessment—can outweigh a numerical comparison of issues won and lost.