Defendant who perjured himself and presented phony witness still successful in arguing contributory negligence

In a somewhat-bizarre decision released today, the court in Dizon v. Losier, 2017 BCSC 431, dealt with a defendant who admitted to perjuring himself and presenting a phony witness during the course of a personal injury trial.  The facts in Dizon involved a relatively routine rear-end motor vehicle accident.  Unfortunately for the defendant, however, he had forgotten to renew his car insurance at the time of the accident, and therefore had no insurance coverage.  As such, the defendant was forced to defend the action himself.  During the course of the trial the defendant presented a phony witness who claimed he had witnessed the crash, and that the plaintiff was at fault.  This witness also claimed he had never met the defendant.  Somewhat predictably, both the defendant and the witness crumbled under further questioning, and both admitted they knew each other and had made the whole thing up.  Despite this admitted perjury from both men, the trial judge still found the plaintiff 15% at fault for the rear-end collision.  Somewhat strangely, it does not appear that the defendant or the witness were charged with perjury as a result of their testimony, with the only sanction being the awarding of special costs for one day of the trial.  In giving reasons, Madam Justice Russell said as follows:

[1]             On August 26, 2014, the plaintiff, Charlston Dizon, suffered injury as a result of his Mercedes SUV being hit from behind by the truck of the defendant, Joseph Losier.

[2]             The defendant’s truck was uninsured. This was due to him inadvertently re-insuring the wrong vehicle. Mr. Losier drives two vehicles, and the insurance for the truck he was driving during the accident expired the day before the insurance for his other vehicle.

[3]             As a consequence, the defendant represented himself at trial, contesting both liability and damages.


[13]         The defendant alleges that the plaintiff was contributorily negligent. This is because, he maintains, the plaintiff stopped suddenly and for no reason, thus neglecting to act reasonably for the care of others on the road.

[14]         A unique issue that has arisen in this case is that of the defendant’s perjury. Its effect on the court’s ability to weigh any of his evidence is an issue in contention, and must be assessed by this Court.


[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[50]         ... I find that the evidence supports the defendant’s contention that the plaintiff played a key role in causing the accident. The plaintiff’s statement to the RCMP undermines the idea that, at the time of the accident, the light was amber. Instead, I find that, in suddenly braking, the plaintiff failed to take reasonable care for his own interests, an action that was causally connected to his injuries. The nature of the plaintiff’s injuries is consistent with those one would suffer from being rear ended after suddenly braking. Consequently, this was a foreseeable risk directly related to the plaintiff’s carelessness, and so there are no remoteness issues.


[52]         The defendant bears 85% responsibility for the accident and for the damages that flow from it. The plaintiff, due to his sudden braking, bears the responsibility for the remaining 15%.


[83]         The plaintiff will have his costs of the action, subject to any submissions.

[84]         In addition, the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

The full decision can be found here: