IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120224

Docket: M081915

Registry:
Vancouver

Between:

Aaron Jeffrey
Cliff

Plaintiff

And

Maureen Evelyn
Dahl, Aggressive Auto Towing Ltd.,
Terry Snelgrove, Trevor Evan Ivor Jones, Peter Alan Weaver
and Brett Unger

Defendants

And

Trevor Evan Ivor
Jones, Peter Alan Weaver
and Brett Unger

Third
Parties

– and –

Docket: M114364

Registry:
Vancouver

Between:

Aaron Jeffrey
Cliff

Plaintiff

And

Derek Alexander
Holmes

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Dahl applies to strike the jury notice filed by the plaintiff, Mr.
Cliff. The defendants, apart from Mr. Snelgrove and Aggressive Auto Towing
Ltd., support her application. Mr. Weaver’s counsel and Ms. Dahl’s counsel both
made submissions to the court. For simplicity, I will refer to Ms. Dahl’s
argument as presented for both parties but treat this proceeding as a joint
application by these parties. Mr. Snelgrove and Aggressive Auto Towing Ltd.
take no position with respect to the application. Mr. Cliff opposes the
application on its merits and due to the delay in bringing on the application
and giving notice thereof. Mr. Cliff was involved in a second motor vehicle
accident and has commenced Action No. M114364 against Mr. Holmes. The
parties agreed that these two actions will be heard at the same time. Mr.
Holmes supports the application to strike the jury notice.

[2]            
Ms. Dahl’s application is pursuant to Supreme Court Rule 12-6(5)(a)(i)
and (ii). This rule provides that where a party is served with a jury notice
under Rule 12-6(3), a party has seven days to apply to the court for an order
striking the jury notice on three grounds: (1) the issues require
prolonged examination of documents or accounts or a scientific or local
investigation that cannot be made conveniently with a jury; (2) the issues
are of an intricate or complex character; or (3) the extra time and cost
of a jury is disproportionate to the amount involved in the action. Ms. Dahl
does not rely on the third ground.

BACKGROUND

[3]            
This action involves a motor vehicle accident that occurred on January
21, 2007, when Ms. Dahl’s vehicle struck Mr. Cliff, who at the time was a
pedestrian. Mr. Cliff was standing in the northbound lane of Bradner Road in
Abbottsford, B.C. when he was struck by Ms. Dahl. Mr. Cliff was assisting Mr.
Snelgrove, a tow truck driver, to load three disabled vehicles onto a tow
truck. Aggressive Auto Towing Ltd. is a defendant because of an allegation
that, as Mr. Snelgrove’s employer, the company is vicariously liable for his
negligent acts in the course of employment.

[4]            
The third parties, Mr. Weaver, Mr. Unger and Mr. Jones were present at
the scene of the accident and the owners or operators of the disabled vehicles.
Ms. Dahl maintains the third parties caused or contributed to the accident by
their negligence. The third party notice was filed on June 1, 2010. Mr. Cliff
subsequently added the third parties as defendants to ensure he could claim
damages against them in the event they were found to have caused or contributed
to the accident.

[5]            
As a result of the collision, Mr. Cliff suffered serious and permanent
injuries, including a traumatic brain injury.

[6]            
On May 25, 2010, Mr. Cliff served Ms. Dahl with a jury notice. At this
time the trial was scheduled for four weeks. On September 8, 2010, at a Case
Planning Conference (“CPC”), Ms. Dahl indicated her intention to apply to
strike the jury notice. Dates for the application could not be set at that
time.

[7]            
A second CPC was held on February 11, 2011, and at that time I directed
Ms. Dahl to bring on her application to strike the jury notice within a
reasonable period of time. However, this could not be done until after the
newly added third parties and defendants filed pleadings and exchanged their
lists of documents. The parties agreed that this application would be heard on
March 30, 2011; however, the notice of application was not filed and served in
time for the hearing. The application was subsequently reset for January 27,
2012, which was the earliest date that all counsel and the court were
available. On March 30, 2011, the court held a third CPC, at which time there
was a discussion concerning the new defendants and whether the time set for
trial would be sufficient. On June 24, 2011, there was a fourth CPC, at which
time the trial dates were vacated and reset for five weeks commencing October
1, 2012.

[8]            
On July 31, 2011, Mr. Cliff was involved in a second motor vehicle
accident and commenced an action against Derek Alexander Holmes. Mr. Cliff
maintains he suffered new injuries and an aggravation of his existing injuries
from the first accident while he was a passenger in Mr. Holmes’ vehicle, which
vehicle was involved in a single car accident.

PRELIMINARY OBJECTION

[9]            
Ms. Dahl acknowledges that her application to strike the jury notice is
outside of the seven day time limit. However, she argues that the assigned
trial judge has the authority to strike the jury notice on application
regardless of whether the seven day time limit has been observed: Patterson
v. Rankel, 2001 BCSC 952; Lomax v. Weins, 2003 BCSC 396; and Adamson
v. Charity, 2006 BCSC 1642. See also, Rule 12-6(5)(a). Ms. Dahl maintains
that Mr. Cliff has known of her intention to have the jury notice struck since
September 8, 2010, when the issue was discussed at a CPC. Further, Ms. Dahl
maintains this action has become more complicated since the jury notice was
served by the addition of the three third parties and defendants and by the
second action arising out of the July 31, 2011 motor vehicle accident.

[10]        
Mr. Cliff argues that Ms. Dahl has brought her application to strike the
jury notice more than 19 months after the time period in Rule 12-6(5)(a)
expired. Further, at a CPC held on February 11, 2011, the court directed Ms.
Dahl to bring on her application within a reasonable period of time. While the
application was scheduled for March 30, 2011, due to Ms. Dahl’s failure to
serve her materials on time, the application did not go ahead. In these
circumstances, Mr. Cliff argues the delay should preclude the application. Mr.
Cliff notes that Ms. Dahl has not applied for an extension of the time limits
pursuant to Rule 22-4(2).

[11]        
In addition, Mr. Cliff argues the action has not become more complex
since the service of the jury notice on May 25, 2011. The defendants were aware
of the third parties since the spring of 2009. At Mr. Cliff’s discovery on
April 16, 2009, information concerning the identity of the owners of the
disabled vehicles was disclosed. The nature and extent of Mr. Cliff’s injuries
were known to the defendants from the outset of the proceedings. Although
another action is now to be heard with this proceeding, Mr. Cliff argues that
having two actions heard together does not render the case too complicated for
a jury: Harder v. Nikolov, 2001 BCSC 1101.

[12]        
Under the old Rule 35(4)(a), a pre-trial conference judge, the trial
judge or a master could make an order that a trial be heard without a jury. The
court interpreted this provision broadly; it permitted the application to be
made outside the seven day time limit imposed in old Rule 39(27), which is for
the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a)
does not appear to have found its way into the new rules, the rationale behind
permitting applications outside the strict seven day time limit remains
consistent with the intent and purpose of the new rules. The ability to apply
to strike the jury notice outside the strict time limit was necessary to ensure
a fair trial and the court’s ability to respond to a change in circumstances
surrounding the conduct of a trial. Further, it is apparent that a trial management
judge has authority to grant the relief claimed by Ms. Dahl without any
reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a
discretion to extend time limits in appropriate circumstances without the
necessity of a separate application: Rule 22-4(2).

[13]        
In the circumstances of this case, there is no evidence of any prejudice
to Mr. Cliff attendant upon the delay. Mr. Cliff was aware of the intention to
bring on this application as early as September 2010. The nature of these
proceedings has changed significantly since the first trial dates were set;
three new defendants and third parties have been added and a second action will
be heard at the same time. Accordingly, for these reasons I dismiss Mr. Cliff’s
preliminary objection to the application.

APPLICATION TO STRIKE THE JURY NOTICE

[14]        
Ms. Dahl argues the jury notice should be struck because:

1.  The issues will require prolonged examination of documents that
cannot be made conveniently with a jury.

2.  The issues will require a scientific investigation that cannot be
made conveniently with a jury.

3.  The issues
are of an intricate and complex nature.

[15]        
Ms. Dahl argues that the jury will be required to undertake a prolonged
review of numerous and lengthy expert reports, test results, and other
documentation. To date there are 38 expert reports and there will likely be 50
at the date of trial. The defence anticipates expert evidence will be tendered
by Mr. Cliff addressing the cost of future care, economic loss, damage to his
vision, as well as additional expert reports from his physiatrist and a
vocational consultant. The neuropsychologists’ reports are particularly
complicated due to the large number of tests administered, the lengthy
interviews of Mr. Cliff and family members, and their document review. In
support of this ground, Ms. Dahl cites Gulamani v. Chandra, 2009 BCSC
1042; Cochrane v. ICBC, 2005 BCCA 399; Pratt v. Langley Memorial
Hospital Society, [1992] B.C.J. No. 1572 (S.C.); Adamson; Sjoblom
v. Dueck Chevrolet Oldsmobile Cadillac Ltd., 2006 BCSC 2002; and Liu v.
Chu, 2007 BCSC 974.

[16]        
Ms. Dahl argues this case will involve an assessment of complicated
scientific expert reports addressing liability and causation issues. Liability
for both accidents is seriously in dispute. The jury will be required to
examine engineering evidence regarding the approach speed of Ms. Dahl’s
vehicle, the lighting at the scene and the possibility of accident avoidance.
To date, Ms. Dahl has served an accident reconstruction report and a lighting
report. A further report will be served concerning the duties of a tow truck
driver. It is anticipated that Mr. Cliff and Mr. Snelgrove will obtain
engineering opinions and their own expert reports concerning the duties of a
tow truck driver.

[17]        
In addition, Ms. Dahl argues that while the extent and nature of Mr.
Cliff’s injuries are not disputed, the experts disagree about his prospects for
some level of recovery. Ms. Dahl says the jury will have to understand
complicated medical, psychiatric, and psychological terms, the reasons for the
tests administered and the foundation for their opinions to properly assess
whether Mr. Cliff remains competitively employable. In support of this ground,
Ms. Dahl cites Lomax and Patterson.

[18]        
Ms. Dahl argues it is not “convenient” to have this trial heard by a
jury because they will have difficulty retaining an understanding of the expert
evidence over a lengthy period in a way that will permit them to make a timely
assessment of it at the end of the case. This is particularly problematic when
the evidence is interrupted. In this case, Mr. Cliff’s evidence may have to be stood
down because he tires easily. In support of this ground, Ms. Dahl relies upon Siple
v. Davis, 2000 BCSC 298; Clower and Sexton v. Poeckert, 2007 BCSC
409; Gulamani; Davies v. Degiano, 2007 BCSC 2; Nikal v. Caira,
[1993] B.C.J. No. 277 (S.C.); and Gwon v. Tan et al, 2002 BCSC
1476.

[19]        
Adding to these factors, argues Ms. Dahl, is the multiplicity of parties
and defence counsel (six), a multiplicity of standards of care, the need to
determine liability and apportion fault, the need to interpret different legislation,
and to apply the but for test. In addition, the jury must assess complex legal
concepts in future loss and care. Moreover, Ms. Dahl says it is the combined
impact of all these factors that dictate the jury notice be struck: MacPherson
v. Czaban, 2002 BCCA 518; MacDonald v. Smith (1983), 48 B.C.L.R. 285
(S.C.); Wipfli v. Britten, [1982] 1 W.W.R. 709 (B.C.S.C.); and
Sivertson (Guardian ad litem of) v. Dutrisac, 2011 BCSC 562.

[20]        
Mr. Cliff argues it is a fundamental right to have a civil trial by jury
and this right is deeply rooted in our legal history and traditions. It is a
substantive right that should not be taken away without cogent reasons: King
v. Colonial Homes Ltd., [1956] S.C.R. 528. The onus rests with the
applicant to establish those cogent reasons clearly: Nichols v. Gray
(1978), 9 B.C.L.R. 5 (C.A.); Forde v. Royal Inland Hospital, 2009 BCSC 254;
and Bateson v. Surrey Memorial Hospital Society, [1989] B.C.J. No. 134
(S.C.). On the other hand, Mr. Cliff says the right to serve on a jury is a
reciprocal right of citizenship.

[21]        
Mr. Cliff maintains a jury is well equipped to decide this case because
today juries are far more sophisticated and better educated than in the past: R.
v. Mezzo, [1986] 1 S.C.R. 802; and R. v. W. (D.), [1991] 1 S.C.R.
742, “Today’s jurors are intelligent and conscientious, anxious to perform
their duties as jurors in the best possible manner”, per Cory J. at 761. See, R.
v. Starr, [2000] 2 S.C.R. 144 at para. 31 and more recently, Cahoon
v. Brideaux, 2010 BCCA 228 at para. 4.

[22]        
Mr. Cliff argues the applicant’s burden is not satisfied by mere
speculation as to the number of documents a jury will have to examine. The
applicant must do more than provide a list of potential problems that the jury
may face. Instead, the applicant must provide some concrete examples of the
difficulties they anticipate with respect to these matters. The burden is not
met by simply listing a number of tests that have been done and asserting that
because the jury must look at the tests in the course of their deliberations,
the case is unsuitable for a jury: Dorus v. Teck Corporation, 2008 BCSC
1112.

[23]        
Mr. Cliff argues that there is insufficient specificity in Ms. Dahl’s
application to grant the relief claimed. First, of the 38 expert reports, there
are only seven in Ms. Dahl’s materials. All of the experts who authored these
reports agree that Mr. Cliff suffered serious, life changing injuries,
including a severe brain injury. The only issue in regard to damages is whether
Mr. Cliff will be able to work at an unskilled and low level job at some point
in the future. The difference of opinion between the experts is not significant
in regard to his future employability. In addition, Mr. Cliff says Ms. Dahl
exaggerates the mounds of documents the jury will have to review. Clinical
records, for example, are rarely led at trial in bulk.

[24]        
While Ms. Dahl says the evidence at trial will involve scientific
investigation of a complex nature, she does not identify what the complex
issues are and why the jury will have difficulty understanding them. While Ms.
Dahl says the jury will have difficulty understanding these expert opinions,
Mr. Cliff argues it is the task of counsel and the judge to simplify the
evidence for the jury and to restrict the amount of documentary evidence that
is presented to them: Harder. Simply because medical, economic and
actuarial evidence is to be called does not give rise to a scientific
investigation or render the issues complex: Reischer v. Love, 2005 BCSC
1352. Mr. Cliff says this case does not involve a scientific investigation;
rather, it is an investigation into human conduct: Andersen v. Porter et al,
2000 BCSC 1000.

[25]        
Mr. Cliff says it is the character of the evidence, rather than its
volume, that may render a trial too complex for a jury: Furukawa v. Allan,
2007 BCSC 283. The fact that the jury may have to address causation,
contributory negligence and other legal issues does not render it unsuitable
for a jury. The judge must explain the legal principles to a jury and direct
them as to how they must be applied: Aberdeen v. Langley (Township of) et
al., 2006 BCSC 1980; and Daynes v. British Columbia Electric Railway Co.
(1914), 49 S.C.R. 518. The jury will need to decide what happened as between
the parties and the judge will tell them how to apportion liability, instruct
them on how to apply the standard of care, and instruct them on the test for
causation. The judge will also instruct the jury, where necessary, on the
proper interpretation and application of legislation: Dorus. Further,
the court must assume that trial management of issues will be effective, but if
it becomes clear during the trial that the jury cannot be expected to manage
the evidence, they may be discharged mid-trial.

[26]        
Mr. Cliff argues that this application should be dismissed and cites
three judgments where an application to strike the jury notice was dismissed on
similar grounds: Forde; Sartore v. Beckley, 2002 BCSC 21; and Aberdeen.

DISCUSSION

A.  General Legal Principles

[27]        
Rule 12-6(5)(a) provides that a party may apply to strike a jury notice
on three grounds; however, only the first two grounds are relevant to this
case:

(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.

[28]        
There is a presumptive right to a trial by jury and Mr. Cliff should not
be deprived of that right unless there are cogent reasons to do so. The onus
rests with the applicant to clearly satisfy this heavy burden. As Arnold-Bailey
J. concluded in Gulamani at para. 43:

In my view, the point to be drawn
from Reischer is clear: juries in this province are held to be informed
and intelligent and capable of assessing expert evidence where it is properly
presented.  In other words, the threshold for determining whether a prolonged
examination of documents or a scientific investigation is necessary and whether
it can be conveniently done by a jury (Rule 39(27)(a)(i)), or whether the
issues are of a complex or intricate nature (Rule 39(27)(a)(ii)), is
relatively high even in the context of a long trial with many difficult legal
questions.

[29]        
Turning to the case for the applicant under Rule 12-6(5)(a)(i), the
authorities support a two-step process, as described by Arnold-Bailey J. in Gulamani
at paras. 28, 29, 31 and 32:

[28]   First, the court must determine whether the issues
require “prolonged examination of documents or accounts or a scientific or
local investigation.”  That the materials in evidence are lengthy does not,
however, necessarily mean that a prolonged examination of them is required.  In
Wipfli (Guardian ad litem of) v. Britten, [1981] B.C.J. No. 1706 (S.C.),
at para. 14, Chief Justice McEachern expressed doubt that a 715-page record and
hospital procedure manuals would require a detailed or prolonged examination,
citing the following statement made by Hutcheon J. in a previous unreported
decision:

The common experience is that in most cases the
hospital records, having been made an exhibit, play very little part in the
proceedings.

[29]   To determine whether a prolonged examination would be
required by the trier of fact, rather, the court must consider more carefully
what the evidence will actually be. …

…

[31]   When the finding is made that a prolonged examination
or investigation will be necessary, the court must then turn to the second part
of the test, which is whether or not that examination can be made “conveniently
with a jury.”  In Wipfli at para. 30, McEachern C.J.B.C. clarified that
convenience in this context “does not refer to physical or personal
convenience”, but rather “to the proper conduct of the trial including an
understanding of the issues and evidence, the submissions of counsel, and the
Judge’s charge.”  The Chief Justice further described this at para. 26:

Convenience, in the sense in which that word is used
in the Rule does not depend solely upon whether or not the jury can be made to
understand the evidence. […]  What is required before it is convenient to
have a scientific investigation made with a jury, is the ability to have a
proper trial, which includes not just an understanding of the evidence as it is
being given, but also an ability to retain this understanding throughout a long
trial in a form which permits an analysis of the evidence in relation to the
difficult questions which must be decided at the end of the case.

[32]   In other words, convenience includes the ability of a
jury to both understand evidence and retain that understanding such that
a fruitful analysis will be possible at the end of the trial.  It is
reasonable, I would add, to infer that the longer the trial and the more
prolonged and complex the scientific investigation or examination of documents
or accounts, the more difficult it will be for a jury to retain a clear
understanding of the evidence to the conclusion of the trial.

[Emphasis
in original.]

[30]        
Rule 12-6(5)(a)(ii) was also considered by Arnold-Bailey J. in Gulamani
at paras. 34-36:

[34]   The other ground for striking a jury notice is found
in Rule 39(27)(a)(ii).  The question for the court, in considering this
alternate route, is whether “the issues are of an intricate or complex
character.”

[35]   These issues will need to be considered in the context
of the entire case and the other issues at bar, rather than in isolation.  In Yewdale
v. Insurance Corp. of British Columbia, [1994] B.C.J. No. 2835 (S.C.),
Cohen J. found at para. 16 that the combination of the issues in that case made
them sufficiently complex that the matter should be tried without a jury:

…when I consider that the trier of fact will have
to weigh the evidence and apply the law in an emerging field of jurisprudence
to a series of issues complex in character involving different sets of
defendants with different sets of duties and standards, allegations of breach
of contract, consider a volume of documents, consider alternative legal
theories, may have to apportion liability and consider contributory negligence,
I am persuaded that this is an appropriate case for determination by a judge
without a jury…

[36]   In that case, which arose
in relation to a motor vehicle accident, there were four different sets of
defendants.  The trial by judge and jury was set for three weeks and was to
involve multiple causes of action, a large volume of documents, alleged
breaches of different duties, various time periods involving different
standards of practice, different theories of liability, issues of
admissibility, and novel legal issues.

B.  Arguments in Favour of Striking the Jury Notice

[31]        
Ms. Dahl describes several reasons why the court should strike the jury
notice in this case based upon Rule 12-6(5)(a)(i) and (ii) in her written
argument at page 7. Ms. Dahl elaborates upon each of these reasons in her
written argument. I will address each of these reasons individually and
collectively as Ms. Dahl argues it is the multiplicity of difficulties that a
jury will encounter in this case that renders the matter inappropriate for a
jury.

[32]        
First, Ms. Dahl maintains a trial of five weeks’ duration is too long
for a jury to retain a clear understanding of the complicated medical and
scientific evidence that will be led during the trial. In my view, a five week
trial is not overly long; juries routinely hear civil and criminal trials well
beyond this length. Even when a long trial involves complicated factual and
legal issues, the length of trial alone is not a sufficient ground for striking
the jury. It is merely a subsidiary factor that may tip the balance one way or
the other.

[33]        
Second, Ms. Dahl argues the trial will involve numerous and complex
questions of fact and law on the issue of liability, causation, apportionment
of fault, and damages. In particular, Ms. Dahl says the jury will be required
to address the negligence of multiple defendants; the causal connection between
the purported negligence of the defendants and Mr. Cliff’s injuries; the
allocation of contributory negligence; the application of the “but for” test;
the interpretation of various statutes and standards of care; negligence and
apportionment of fault in the second accident and as between the two accidents;
the extent of Mr. Cliff’s cognitive recovery; and whether he can return to
remunerative employment.

[34]        
While this list of the jury’s tasks, viewed collectively, appears
daunting, many of these issues are resolved by the division of responsibilities
between the judge and the jury. It is the judge, with the assistance of
counsel, who must instruct the jury concerning the legal principles applicable
to the facts determined by the jury. If legislation such as the Workers
Compensation Act and the Occupational Health and Safety Regulation are
relevant to the issues in dispute, it is the judge who must instruct the jury
on its interpretation and application as a matter of law. Similarly, statutory
and common law duties and standards of care are also a matter of law to be
determined by the judge. Moreover, the comments by Hinkson J. (as he then was)
in Dorus at para. 31 are applicable to this case. The applicant
does not satisfy the burden of proof by simply listing a number of statutes and
then asserting that the case is unsuitable for a jury to decide. Ms. Dahl has
not provided any specific examples of the difficulties the jury will have
interpreting or applying these various statutes.

[35]        
Similarly, Ms. Dahl recognizes that the judge will be responsible for
defining the legal principles concerning apportionment of fault and the “but
for” test; however, she does not identify the problems a jury would have
applying these legal concepts to the facts of this case. In my view, while it
may be difficult for the jury to determine what occurred from an evidentiary
perspective and equally difficult for a judge, the application of the law to
the factual conclusions they come to will not be overly complicated. The legal
principles applicable to this case are not in a field of emerging law; nor are
they overly complex.

[36]        
Third, Ms. Dahl argues the case will involve prolonged examination of
lengthy reports, test results and other documents dealing with conflicting
medical, psychological and vocational expert opinions. In my view, Ms. Dahl
overstates the complexity of the medical opinion evidence in this case.
Although Mr. Cliff suffered a severe traumatic brain injury, in addition to
several other physical injuries, there is no dispute among the various medical
experts in regard to the extent of his injuries and the impact of those
injuries on his life. The jury will not be required to determine whether Mr.
Cliff suffered a severe traumatic brain injury by wading through complex
medical reports and test results. In regard to the question of damages, the
dispute between the parties is a narrow one; that is, to what extent can Mr.
Cliff’s quality of life and employment prospects be improved by psychiatric and
psychological therapy addressing the organic and psychological causes of his
fatigue, depression, and mood disorder. This is an issue that juries are
regularly called upon to decide. Rarely will they be required to study test
results administered by various experts to determine how Mr. Cliff will fare in
the future with the proper medical assistance. The experts’ views about the
future are primarily based on assumptions, albeit supported by their training
and expertise, that may or may not be realized. The differences between them
are only a matter of degree.

[37]        
Fourth, Ms. Dahl argues the case will require the jury to undertake a
prolonged examination of conflicting expert reports of a scientific nature
relating to the pre-impact speed, reaction time, accident avoidance and
lighting. This argument is based on an assumption that Mr. Cliff will be
presenting the jury with expert reports that conflict with the accident
reconstruction report authored by Mr. Isling and the lighting report authored
by Mr. Inch, both of which were commissioned by Ms. Dahl. It is difficult to
assess whether a prolonged examination of these reports will be necessary because
there are no conflicting reports in existence at this time. I note that these
experts have been given notice that they are required for cross-examination at
trial and thus it may be a fair assumption that Mr. Cliff intends to present
the jury with competing opinions.

[38]        
However, I have read the two reports commissioned by Ms. Dahl and I do
not find them to be overly complex or difficult to understand. In argument,
counsel was unable to provide me with an example, by reference to the reports,
of something that would be too complicated for the jury to understand and
retain throughout the trial. Moreover, I agree with the comments at para. 25
of Harder, citing MacKinnon v. Ebner, [1997] B.C.J. No. 364
(S.C.), that it is the responsibility of counsel to ensure that expert opinion
evidence is understandable and it is the job of the expert to simplify
documentary evidence for either a judge or a jury. As MacKenzie J. (as she then
was) says in MacKinnon at paras. 24 and 26:

… A reasonably informed and intelligent jury is as capable
of assessing expert evidence as is a single judge. It is up to counsel to
ensure it is presented so that a jury can understand it. Indeed, the very
purpose of expert evidence is to assist lay people to understand technical
evidence. …

…

Juries are sophisticated enough
today that, with the assistance of counsel and instructions of the trial judge,
they will not find this evidence beyond their abilities to comprehend, retain
and apply to the case …

[39]        
Fifth, Ms. Dahl argues this case will involve prolonged examination and
understanding of actuarial/economic expert opinion evidence based on Mr.
Cliff’s pre and post-accident career path and earning stream when determining
damages for loss of future earning capacity. Although Ms. Dahl has listed the
38 reports already exchanged, including a work capacity report and an economic
report, these reports were not attached to her application. As a consequence, I
have not read the reports addressing future economic loss and future care
costs. While counsel’s statements about the complexity of the reports may be
sufficient in cases where there is general agreement as to what the reports
say, in this case counsel disagree about the complex nature of the reports and
whether the jury will be required to closely examine all of them. Further, Ms.
Dahl does not specifically identify the basis for her assertion that these
matters are too complicated for the jury to comprehend.

[40]        
There is also no indication as to whether the defendants will provide
conflicting expert opinion evidence in response to Mr. Cliff’s expert reports.
While the defendants may commission their own expert reports addressing future
care costs and loss of future earnings, there is no certainty that their
experts’ views will be substantially different from the opinions provided by
Mr. Cliff’s experts. In general terms, I have never found actuarial evidence of
future loss of income to be overly complicated. Given well established
parameters, it is a relatively straightforward mathematical exercise to
determine the range of future loss of income. It is really the underlying facts
that are more difficult to determine. For example, what were Mr. Cliff’s
employment prospects before the accident and how has that changed since the
accident? In my view, a jury is particularly well suited to the task of
determining the evidentiary foundation for an award of damages under the
headings of future loss of earning capacity and cost of future care.

[41]        
Lastly, Ms. Dahl argues that the fatigue experienced by Mr. Cliff may
require him to give evidence in stages and over a period of days. This
disruption in the evidence, argues Ms. Dahl, will make it difficult for a jury
to maintain continuity of the evidence. While this may be a factor to consider,
along with all of the other circumstances, the fact that a witness may require
breaks while giving evidence is not a proper basis upon which to strike a jury
notice.

[42]        
It is not sufficient for the applicant to list expert reports and assert
that these will require the jury to spend prolonged periods of time studying
them. As the authorities cited by Mr. Cliff and Ms. Dahl indicate, the raw data
and background materials underlying expert opinion evidence are often not
presented to the jury. This evidence is culled and simplified for the trier of
fact regardless of whether it is a trial by judge alone or judge and jury. The
onus is on the applicant to demonstrate why, in the circumstances of this case,
the jury will be required to spend prolonged periods of time examining the raw data
in support of the various expert opinions. Further, the onus rests with the
applicant to demonstrate, if there will be a need for prolonged examination of
documentary evidence, that it is inconvenient for the jury to do so in this
particular case. As the court said in Gulamani, the mere fact that there
will be a need for a prolonged examination of documents does not automatically
lead to a conclusion that it will be “inconvenient” for a jury to do so. The
question is whether a jury can be made to understand the evidence and to retain
this understanding until the end of the trial. On the facts of this case, Ms.
Dahl has failed to demonstrate that either part of the Rule 12-6(5)(a)(i) test
has been satisfied.  She has also failed to demonstrate the “intricate or
complex character” of the issues as required by Rule 12-6(5)(a)(ii).

[43]        
At the present time it is not known precisely what evidence will be
placed before the jury. Nor is it known with any certainty whether there will
be material differences between the experts with respect to the issues
impacting liability and damages. Should the court determine in the course of
the trial that the proceedings are in fact too intricate or complicated for the
jury to understand or require a prolonged examination of documents that is not
“convenient” for a jury, the matter may be revisited and the court may order
the trial to proceed without the jury if the interests of justice requires such
an order: Dorus at para. 24.

[44]        
The parties have cited numerous authorities in support of their
respective positions. The result in each case turned on its unique
circumstances and particular facts. No two cases are identical. Each trial
presents its own complicating and neutralizing factors. It is difficult to say
that because a jury notice was struck in a similar case, it should also be
struck in this case due to the inevitable presence of unique circumstances. In
addition, the results in the authorities often depend on the view taken by the
judge or master as to the specific issues raised by the pleadings and the
presence of multiple parties and actions. The exercise of discretion is not a
scientific process. There will always be a range of possible results based on
the facts of any given case when the court is called upon to exercise a discretionary
authority.

[45]        
Accordingly, on the particular facts of this case, I must conclude that
the applicant has failed to satisfy me that the jury notice should be struck
based on the grounds articulated in Rule 12-6(5)(a), either alone or
collectively. It may well be that this application is premature given the
uncertainty surrounding the evidence that will ultimately be led at trial. Ms.
Dahl has leave to renew her application if, during the course of the trial,
there is a material change in circumstances affecting the jury’s ability to
hear this case.

[46]        
The application is dismissed. Mr. Cliff shall have his costs at Scale B,
in any event of the cause.

“Bruce J.”