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In the recent Court of Appeal decision of Thomasson v. Moeller (2016 BCCA 14), the defendant appealed the judgement for a variety of reasons, one of which was the  respondent’s duty to mitigate her damages by undertaking cognitive behavioural therapy (“CBTˮ).

On January 9, 2011, Ms. Thomasson was injured as a passenger in a crash. What was disputed was the course of the plaintiff’s psychological treatment and failure to mitigate. The defence argued that the plaintiff failed to take CBT at an early opportunity which delayed her recovery from her injuries. The plaintiff’s counsel had retained Dr. Corney to provide a medical-legal report. In his report, Dr. Corney gave a treatment recommendation of CBT. Defence argued that the plaintiff failed to mitigate her losses by not following through with the CBT. The trial judge disagreed  and concluded that Ms. Thomasson had not behaved unreasonably and concluded “Obviously, when dealing with psychotherapy or psychiatry, there is a great deal of room for conjecture as to what might have happened had a particular course of therapy been undertaken. In this case, the plaintiff sought and accepted many types of therapy in what I find was a genuine effort to recover her pre-accident condition. I do not find that the evidence satisfies me that there was even a likely improvement possible as a result of cognitive behavioural therapy. At best, it suggests that it is a therapy that had some possibility of being effective. I do not accept that the plaintiff has failed to mitigate her damages by not taking cognitive behavioural therapy.”

In her appeal ruling, in discussion on a separate matter of adverse inference, Madam Justice Kirkpatrick discusses the recommendation of Dr. Corney that the plaintiff undergo CBT:

[39]         It is also, in my opinion, a leap in logic in these circumstances to ask the court to infer that Dr. Jones did not provide CBT because she did not receive Dr. Corney’s report. This proposition rests, in part, on the implication that it was Ms. Thomasson’s obligation (or her counsel’s) to ensure that Dr. Jones received Dr. Corney’s report. In my opinion, such an implication should not be sustained. Dr. Corney was retained by plaintiff’s counsel to provide a medical-legal report. He was not a treating physician whose recommendations Ms. Thomasson was obliged to follow, nor was she obliged to tell her treating psychologist, Dr. Jones, of Dr. Corney’s recommendation for CBT.

Madam Justice Kirkpatrick goes on to discuss mitigation:

[41]         It is trite law that the question of whether a refusal of treatment is reasonable or not is a question for the trier of fact: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 172. It is similarly trite law that an appellate court cannot interfere with a trial judge’s finding of facts “unless a palpable error leading to a wrong result has been made by the trial judgeˮ: Housen v. Nikolaisen, 2002 SCC 33 at para. 4.

[42]         As can be seen from the judge’s reasons, he was guided by the authorities that required the defendant to prove two things: that Ms. Thomasson acted unreasonably in not taking CBT, and the extent to which her damages would have been reduced, if at all, had she acted reasonably.

[50]         It was within the judge’s discretion to accord the appropriate weight to the various modalities of treatment, including CBT, taken by Ms. Thomasson.

[51]         In my opinion, it cannot be said that the judge made a palpable error in his findings of fact with respect to mitigation. The burden was on the defendant to establish that the wide variety of therapies that Ms. Thomasson underwent did not satisfy her obligation to mitigate her damages. It was open to the judge to find that this burden was not met.

[52]         I would not accede to this ground of appeal.