IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110404

Docket: M053189

Registry:
Vancouver

Between:

Gerald
Wayne Enns, Personal Representative of

Joshua James Gerry
Enns, Deceased

Plaintiff

And

Joel
Michael Cahan

Defendant

Before: The Honourable Madam
Justice Gray

Oral Reasons for Judgment

In
Chambers

[1]          
THE COURT: The respondent, Mr. Cahan, has applied for an
order striking the jury notice given by the claimant, Mr. Enns. Joshua
Enns died following a car accident on October 2, 2002. I will refer to him as
Joshua to distinguish him from his father, who I refer to as Mr. Enns.

[2]          
Joshua was 24 years old when he died. The respondent, Mr. Cahan,
was the driver of the other vehicle which collided with Joshua’s vehicle. This
lawsuit is a proceeding under the Family Compensation Act, R.S.B.C.
1996, c. 126. Mr. Enns brought the lawsuit for the benefit of himself
and his wife, who was Joshua’s stepmother. The trial is set for ten days
starting May 2, 2011.

[3]          
Mr. Cahan’s application raises both a procedural and a substantive
question. The procedural question is whether Mr. Cahan is entitled to
bring this application as he has, which is as an application to a trial
management judge. If he is entitled to apply, the substantive question is
whether the Court should strike the jury notice. I understand that the
application was originally set before a trial management judge, but was
rescheduled when insufficient time was available at the trial management
conference. This application proceeded before me for a half-day.

[4]          
I begin with the procedural point. Certain cases cannot be heard by a
jury. Included are cases such as foreclosures and custody cases, and cases
proceeding as fast-track actions. With respect to other cases, Rule 12-6(5)(a)
provides that a party can apply to strike a jury notice on three grounds, which
are as follows:

(i)  the issues require prolonged examination of documents or
accounts or a scientific or local investigation that cannot be made
conveniently with a jury,

(ii)  the issues are of an intricate or complex character, or

(iii)  the extra time and cost
involved in requiring that the trial be heard by the court with a jury would be
disproportionate to the amount involved in the action

[5]          
Ordinarily, an application to strike a jury notice on the basis of those
three grounds must be brought within seven days after service of the notice
requiring a trial by jury. However, Rule 22-4(2) provides that the Court may
extend or shorten any period of time provided for in the Supreme Court Civil
Rules even though the application for the extension is made after the
period of time has expired.

[6]          
In this case, the notice of trial by jury was filed on November 19,
2009, which was about one and a half years ago. Mr. Cahan did not apply
within seven days to set aside the jury notice. His application is
predominately based on a report dated February 7, 2011, which Mr. Enns has served on the basis that it is an expert report. The report states that it was
prepared by Christopher J. Bruce, Ph.D, and Derek W. Aldridge, MA, of Economica
Ltd. I understand that Dr. Bruce and Mr. Aldridge are economists. I
will refer to the report as the Bruce-Aldridge report. Mr. Cahan also
relies on the statement of claim. Mr. Cahan brought his application to the
trial management judge.

[7]          
The trial management procedure arose from the Supreme Court Rules,
which came into effect on July 1, 2010, and it is therefore a relatively new procedure. Section 12-2(9) states that:

(9)  The judge presiding at a trial management conference may
consider the following and, without limiting the ability of the trial judge to
make other orders at trial, may, whether or not on the application of a party,
make orders respecting one or more of the following:

(b) whether or not the trial or any part of it is to be
heard without a jury, on any of the grounds set out in Rule 12-6 (5)[.]

[8]          
A few moments ago, I read out the grounds for striking a jury notice
which are set out in Rule 12-6(5). The case law prior to July 1, 2010, provided
that the time limit of seven days following receipt of the notice of trial did
not apply to a judge at a pretrial conference:  see for example, Patterson
v. Rankel, 2001 BCSC 952 at para. 18 where Mr. Justice Cohen
wrote:

[18]      Thus, Robitaille
and Sadowick, supra, establish that the judge at a pre-trial
conference not only has a wide discretion in deciding whether to order that the
trial of an action be heard by the court without a jury in order to ensure a
fair trial, but also that the court is not restricted by the timeframe set out
in Rule 39(27). Accordingly, I find that the plaintiff’s application is not out
of time. I turn next to the merits of the plaintiff’s application.

That timeframe that he was
referring to is the same seven-day timeframe that is now set out in Rule 12-6.

[9]          
Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a
trial management conference,

(a) hear any application for which
affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10]       
Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his
application could proceed without affidavit evidence and on the basis of
submissions by counsel alone. Mr. Brun provided the Court with a copy of
the Bruce-Aldridge report and seeks to rely on that and the statement of claim as
the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns
that Mr. Cahan’s application requires evidence and that it is therefore
one of the prohibited orders set out in Rule 12-2(11).

[11]       
The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to
secure the just, speedy and inexpensive determination of every proceeding on
its merits.

(2)  Securing the just, speedy and inexpensive determination
of a proceeding on its merits includes, so far as is practicable, conducting
the proceeding in ways that are proportionate to

(a) the amount involved in the
proceeding,

(b) the importance of the issues in
dispute, and

(c) the complexity of the proceeding.

[12]       
The new Rules have procedures which enable the court and the
parties to design the procedure necessary to resolve a particular issue which
is in question. The question of whether an application requires affidavit
evidence will not always be determined by what remedy is sought. The question
of what is in dispute will play a role, as well. In this case, Mr. Brun’s
submissions are based on the Bruce-Aldridge report and the statement of claim. It
is not necessary to require the parties to go to the trouble and expense of
preparing affidavits when counsel can simply provide the court with a copy of
the report in question and the pleadings.

[13]       
In my view, requiring affidavit evidence would not be consistent with
the object of securing the inexpensive determination of every proceeding on its
merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns
as a report he intends to rely on at trial as an expert report. As I have said,
that report, together with the statement of claim, form the basis of Mr. Brun’s
submissions. As a result, Mr. Cahan’s application can proceed as an
application before the trial management judge.

[14]       
There may be other cases where a party applying to strike a jury notice
would require affidavit evidence. I expect that in those cases the applicant
would rely on Rule 22-4(2), perhaps arguing that the basis for the application
to set aside the jury notice arose after the period ending seven days following
service of the jury notice.

[15]       
Having resolved the procedural question here, I turn to the substantive
issue. Mr. Brun argues that the purported expert report, the
Bruce-Aldridge report, together with the statement of claim has the effect that
the case is too legally complex to proceed before a jury. He argued that the Court
will be required to decide whether all or any of the Bruce-Aldridge report is
admissible, and that if any is admitted, that the law will be too complex for
the jury. He also referred to paragraph 7 of the statement of claim, as
follows:

As a consequence of the death of
the deceased due solely to the negligence and fault of the defendant, the
plaintiff and the deceased’s stepmother have suffered a loss of past and future
income and financial support. At the time of his death, the deceased was the
eldest son of the plaintiff. He was employed on a full-time basis as a
structural steel detailer at Dowco Consultants. The deceased had excellent
prospects of taking over the family contracting business and the plaintiff
intended him for that position. He was in good health and supported his father,
the plaintiff, with services to both the household and the family enterprise.

[16]       
Mr. Brun argued that the allegations in paragraph 7 are
contradictory to the Bruce-Aldridge report and will confuse the jury and make
the case legally complex.

[17]       
Mr. LeBlanc argued that paragraph 7 and the Bruce-Aldridge report
set out non-conflicting claims. He argued that Mr. Enns will be claiming
pecuniary damages formulated both pursuant to the Bruce-Aldridge report and
paragraph 7 of the statement of claim. As noted by the Court of Appeal in Ruiz
v. Bouaziz, 2001 BCCA 207, a beneficiary’s recovery is limited to the
actual or expected loss of the pecuniary benefits arising from the relations
which would be derived from the continuance of the life of the deceased. In
essence, the award to survivors for a fatal accident is intended to compensate
them for a pecuniary loss rather than to provide solace.

[18]       
I have read the Bruce-Aldridge report. The authors write that “choosing
to have a child ultimately means that the parents believe that the future
benefits associated with having the child will exceed the future costs”.

[19]       
The authors go on to estimate the cost that Mr. Enns and Joshua’s
mother (rather than his stepmother) incurred in raising Joshua and then to
estimate the benefits the parents expected to receive over the course of their
lifetime. The authors then allocate that in amounts the parents would have
expected to receive before and after the trial date.

[20]       
A party who has issued a jury notice is entitled to proceed by jury
unless the party opposing the jury satisfies the requirements of Rule 12-6(5). Therefore,
the question for determination is whether the issues are of an intricate or
complex character such that they are unsuitable for a jury. The trial judge is
the gatekeeper of what evidence will be admitted at trial. The trial judge will
apparently have to rule on the admissibility of the Bruce-Aldridge report. I
cannot pre-empt that ruling or make any ruling about that.

[21]       
If the Bruce-Aldridge report is held admissible in whole or in part, the
trial judge will be required to instruct the jury appropriately. In my view,
there is nothing about the Bruce-Aldridge report which makes it inappropriate
for a jury to consider if it is held to be admissible. The report is straightforward
and short, being in fact only nine pages long including all tables and the
title page. Presumably, the trial judge would instruct the jury that they
should consider whether the assumptions that the expert relied on are proven. That
might include the question of whether having a child means that the parents
believe that the future benefits associated with having the child will exceed
the costs. Juries are often required to assess the weight to give to an expert
report including whether the assumptions made by the expert are proven.

[22]       
The trial judge must instruct the jury on the relevant law. That law may
reflect policy to some extent. Our law regarding remoteness of damages and
causation is something that the judge will probably explain to the jury. It
appears the judge will also have to explain that hypothetical events are to be
given weight according to their relative likelihood. All of that is part of
typical instructions to a civil jury.

[23]       
In my view, the Bruce-Aldridge report has not made this case so complex
that it should not be heard by a jury. In my view, there is nothing about
paragraph 7 of the statement of claim that makes this case too complex for a
jury either taken alone or with the Bruce-Aldridge report. The jury will have
to struggle with the question of whether Joshua’s father and stepmother have
suffered any pecuniary loss as a consequence of Joshua’s death. The trial judge
will have to rule on whether the jury can consider some or all of the
Bruce-Aldridge report. The trial judge will have to give instructions about how
to consider expert evidence and about how to assess damages. In my view, those
are the typical questions a jury must consider and the trial judge will be able
to give the necessary instructions.

[24]       
As a result, I am dismissing Mr. Cahan’s application to strike the
jury notice.

[25]       
Thank you, counsel. Interesting problem.

[26]       
MR. LEBLANC:  My Lady, liability is an issue so could we address
the issue of costs of this application?

[27]       
THE COURT:  Yes, you may, Mr. LeBlanc.

[28]       
MR. LEBLANC:  The plaintiff’s position is that costs should be to
the plaintiff in any event.

[29]       
THE COURT:  Yes, Mr. Brun.

[30]       
MR. BRUN:  In my respectful submission, costs should be in the
cause.

[31]       
THE COURT:  I am now asked to make a ruling on costs. The question, really,
is whether the plaintiff is entitled to costs even if it were to lose at the
trial. The plaintiff’s position is that it should be entitled in any event of
the cause and the defence position is that it should be costs in the cause.

[32]       
This is an application that the plaintiff succeeded on. The defendant
sought to strike the jury notice. That is not the kind of application that is
normally required for the progress of a case. In my view, because the plaintiff
has succeeded, he is entitled to his costs in any event of the cause.

[33]       
Was there anything else, counsel?

[34]       
MR. LEBLANC:  No, My Lady.

[35]       
MR. BRUN:  My Lady, as this is a case management conference,
normally the recording is not available to anybody without a court order. Perhaps
that needs to be addressed in light of the fact Your Ladyship gave oral reasons
for judgment in this matter.

[36]       
MR. LEBLANC:  Yes, I am thankful, as well, My Lady. The plaintiff
will probably want a copy of those reasons for judgment as I am sure my friend
will.

[37]       
MR. BRUN:  Yes, I believe the ruling—I will try as I can to ignore
the second aspect of the ruling, and the ruling on the first part, I believe is
of use to the profession and will be of use to my client and so I agree that we
should be able to able to obtain a transcript.

[38]       
THE COURT:  I order that reasons be transcribed.

“Madam
Justice Gray”