The Court of Appeal for British Columbia has upheld a trial ruling that sharply reduced a cyclist's injury claim after the judge found him not credible and his family doctor an advocate.
In Malakoe v. Harris, 2026 BCCA 227, released May 26, 2026, the Court of Appeal for British Columbia dismissed Jesse Malakoe's challenge to the damages awarded for a slow-speed June 12, 2015 collision in which his bicycle was struck from behind by a vehicle driven by Bruce Harris. The Insurance Corporation of British Columbia is listed as Respondent (Third Party) in the appeal.
At a nine-day trial, the judge found Malakoe was not a credible or reliable witness and concluded he had exaggerated his evidence regarding his accident-related injuries. She also found his family doctor, Dr. Crosby, was "more of an advocate for the plaintiff than she was an impartial expert witness" and decided not to rely on the doctor's testimony.
Those findings carried real money. Malakoe sought $140,000 in non-pecuniary damages, $103,384.94 for past loss of income and earning capacity, $325,864 for future earning capacity, $32,250.96 for future care, and $14,815.92 in special damages. The trial judge awarded $60,000 in non-pecuniary loss, $2,500 for past loss of earning capacity, $3,260 in future care, and $1,894.70 in special damages. Nothing was awarded for future loss of earning capacity.
The credibility analysis turned on a string of contradictions. A massage therapy intake form completed roughly six weeks before the accident showed Malakoe seeking treatment for left hip, glute and shoulder issues, with handwritten notes referencing left-side sciatica. He testified he did not recall mentioning sciatica to the therapist. He also claimed his injuries prevented him from lifting heavy weights, yet 2016 Instagram photos showed him dressed as Tarzan, lifting an actress dressed as Jane over his shoulders. He denied excessive marijuana use that counselling records suggested otherwise, and gave inconsistent accounts of a possible PTSD diagnosis.
On Dr. Crosby, the trial judge pointed to resistant cross-examination answers, including the doctor's suggestion that Malakoe's return to playing soccer within two years of the accident might be him exploring his limitations rather than resuming the sport. The judge concluded Dr. Crosby tried to explain away discrepancies in the plaintiff's testimony.
Writing for a unanimous panel, Justice Dickson said trial judges are best placed to assess credibility and that their findings attract considerable appellate deference. The panel found there was an evidentiary basis capable of supporting the trial judge's finding that Dr. Crosby sometimes crossed the line into advocacy, though it called the trial judge's choice of the word biased unfortunate given its implications for the doctor's professionalism.
The appeal court did flag one error: the trial judge should not have wholly rejected Dr. Crosby's factual evidence on her objective findings of injury, such as tenderness and pelvis misalignment. But Justice Dickson said the error was not material because the judge still found accident-related myofascial injuries to Malakoe's neck, back, left hip and left Achilles.
The court held that trial judges are in the best position to assess credibility, that their findings are entitled to considerable appellate deference, and that there was an evidentiary basis capable of supporting the trial judge's finding that Dr. Crosby sometimes crossed the line into advocacy.
