Background
Yuan Kuo Michael Liang was seriously injured in 2019 when another driver struck the vehicle in which he was a passenger at high speed. He claimed that his injuries left him unlikely to work again. At the time of the accident, Liang was in the early stages of operating a high-end children’s clothing store in Vancouver. Critically, from 2014 to 2017 he had worked in China in the import and sale of maternity, baby, and children’s products, earning the equivalent of approximately $1.41 million CAD over those four years — a fact he disclosed in Chinese tax records (the “Chinese Documents”) produced to ICBC nearly two years before trial.
At trial, ICBC’s sole objection to the Chinese Documents was one of authenticity. Mr. Liang testified that he received the documents from Chinese tax authorities, and his wife corroborated his Chinese earnings of $300,000–$350,000 per year. ICBC did not challenge either witness on those figures in cross-examination, and circumstantial evidence — including Liang’s purchase of a roughly $300,000 Lamborghini and use of savings to fund the Business and living expenses after the accident — was consistent with the claimed income. The jury awarded Liang $509,000 for past loss of earning capacity and $3,111,150 for future loss of earning capacity. ICBC, as the third-party insurer, appealed.
On appeal, ICBC raised arguments it had never advanced at trial: that the Chinese Documents were inadmissible hearsay, that the trial process for their admission was procedurally unfair, that the jury charge was deficient, and that Liang’s failure to report his Chinese income on Canadian tax returns undermined his credibility. In support of that last point, ICBC sought to introduce a new expert opinion from an accountant concluding that Liang was a Canadian tax resident obligated to report his Chinese earnings in Canada.
The Court’s Holding
The Court of Appeal (Griffin J.A., Winteringham and Riley JJ.A. concurring) dismissed the appeal. The court held that ICBC’s procedural-unfairness and hearsay arguments were new issues that had never been raised at trial, and it declined to entertain them on appeal. Applying the three-part framework from Gorenshtein v. British Columbia (Employment Standards Tribunal), 2016 BCCA 457, the court found that permitting ICBC to advance those new grounds would be contrary to the interests of justice: ICBC had ample notice of the Chinese Documents and the income figures well before trial, agreed to the process by which the documents were admitted, and never sought a voir dire, cross-examination of Liang before admission, or any alternative procedure. Any authenticity objection was, in any event, adequately answered by Liang’s own testimony identifying the documents.
Even assuming the Chinese Documents had been erroneously admitted for a hearsay purpose, the court held there was no substantial wrong or miscarriage of justice. Both Mr. and Ms. Liang testified without contradiction about his Chinese earnings, ICBCs own closing address acknowledged it was for the jury to decide what weight to give the documents, and unchallenged circumstantial evidence was consistent with the claimed income. A properly instructed jury would necessarily have reached the same conclusion.
The court allowed both parties’ applications to introduce evidence of pre-trial communications, which confirmed that Liang had disclosed the Chinese Documents and their income figures — as well as the fact that he had not reported that income in Canada — nearly two years before trial. However, the court rejected ICBC’s application to adduce the new accountant’s opinion regarding Liang’s Canadian tax-reporting obligations. That issue had not been raised at trial, would require new fact-finding, and could not be characterized as a matter going to trial fairness rather than a wholly new substantive argument.
Key Takeaways
- Evidentiary objections must be made at trial or they are forfeited on appeal: ICBC’s sole trial objection was to authenticity, and the Court of Appeal refused to entertain new hearsay and procedural-fairness arguments raised for the first time on appeal.
- Where a party agrees to the process for admitting disputed evidence at trial and raises no further objection, courts will be highly reluctant to find a miscarriage of justice on appeal arising from that same process.
- New expert evidence will not be admitted on appeal to support an argument that was never made at trial; the interests of justice do not favor allowing a party to raise entirely new substantive theories at the appellate stage simply because it lost below.
- Unchallenged oral testimony corroborated by circumstantial evidence can independently sustain a jury’s damages award even where documentary evidence is disputed, as long as the verdict is not perverse.
Why It Matters
This decision reinforces the strict BC appellate rule against raising new issues on appeal in civil jury trials. Insurers and other civil litigants must identify and articulate all evidentiary objections — including hearsay, procedural notice, and credibility concerns arising from inconsistent tax filings — at the time evidence is tendered. The failure to make a timely, particularized objection forecloses appellate relief even when the evidentiary ruling may have been open to challenge. The case also confirms that threshold authenticity of foreign documents can be established by the recipient’s testimony alone, without embassy certification or formal business-records foundation, leaving it to opposing counsel to pursue cross-examination if they wish to test reliability.
For practitioners in personal injury litigation, ICBC v. Liang is a reminder that pre-trial discovery of foreign-source income documents — and the opportunity to seek production, further examinations, or court orders to compel authentication — places the burden squarely on the opposing party to act before trial. Sitting on those rights and hoping to spring new arguments on appeal is a strategy the courts will not reward.