IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120309

Docket: S102876

Registry:
Vancouver

Between:

Wayne Francis
Persall

Plaintiff

And

Peter Buxton

Defendant

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment
In Chambers

[1]            
The defendant applies pursuant to Rule 12-6 to strike the plaintiff’s
jury notice. The principal basis for the application is the issues are said to
be more intricate or complex than is appropriate for a jury trial.

[2]            
The plaintiff alleges he was injured in an accident in September 2006 in
the City of Surrey (“Surrey”) when the vehicle he was driving was struck by
another vehicle in an intersection. Shortly thereafter the defendant in this
action, who at the material time was a lawyer practising in Surrey, began to
advise the plaintiff in regard to a potential action to recover damages for his
injuries. The plaintiff alleges the defendant, in breach of his duty, failed to
investigate adequately the circumstances of the accident; failed to advise the
plaintiff of the potential liability of Surrey for the alleged faulty design,
construction and/or maintenance of the intersection at which the accident
occurred, and failed to provide notice of the damage claim to Surrey within two
months of the date of the accident as required by the Local Government Act,
R.S.B.C. 1996, c. 323 [Act].

[3]            
The defendant ceased to represent the plaintiff in March 2007 when other
legal representation was provided to the plaintiff for about a year. In early
2008 the plaintiff instructed Michael Slater, Q.C., to act for him in a claim
for damages against the other driver, Ms. Bond, and Surrey.

[4]            
In March 2008, Mr. Slater delivered notice of the damage claim to
Surrey. In July 2008, Mr. Slater commenced action no. M083034, Persall v.
Bond and City of Surrey (the “Personal Injury Action”). Surrey successfully
applied to strike out the claim against it arguing that the plaintiff had
failed to give timely notice as required by s. 286 of the Act. In
early 2010, the plaintiff settled his damage claim with Ms. Bond and in April
the plaintiff sued Mr. Buxton in this action alleging his breach of duty.

[5]            
I heard submissions initially on September 22, 2011, on the question of
whether the jury notice should be struck out. At that time I did not have the
amended statement of defence of the defendant Bond in the personal injury
action. On reviewing that pleading I noted that defendant had alleged the
negligence of the plaintiff and I then sent a memorandum to counsel on this
application inviting them to make submissions on the implications for the
application to strike the jury notice of that contributory negligence
allegation and in particular any implications arising from paragraph 10 of the
statement of claim in the solicitor’s negligence action which reads as follows:

The plaintiff claims that as a
result of the defendant’s negligence and breach of the Retainer, the plaintiff
has suffered loss and damage including the opportunity to recover his full
damages from the City of Surrey for its tortious conduct, or, in the
alternative, to recover some of his damages from the City of Surrey by way of
either settlement or judgment.

[6]            
Counsel provided helpful written outlines of argument following my
memorandum and on March 6, 2012, I heard brief oral submissions.

[7]            
In deciding this application I am invited by the defendant to find the
complexities of a trial within a trial as required in this particular solicitor’s
negligence action ought to persuade me to strike the jury notice.

[8]            
In Han v. Cho, 2008 BCSC 1192, Griffin J., under the heading “General
Principles Regarding the Right to a Jury” observed the following at paras.
12-15:

[12] There is a common law right to a jury. A
party ought not to be deprived of this important right except for cogent
reasons: King v. Colonial Homes Ltd., [1956] S.C.R. 528 at 533.

[13] In Nichols v. Gray (1978), 9
B.C.L.R. 5 (C.A.), Craig J.A. explained the plaintiff’s entitlement to a jury
in civil cases (at 10):

A plaintiff is entitled to trial by jury, except in certain
types of cases specified in the Rules, and he can be deprived of this right
only if a party opposing a trial by jury establishes "clearly" that
one of more of the exceptions in R. 39(20) [the predecessor to Rule 39(27)] is
applicable. McDonald v. Inland Natural Gas Co. (1966), 57 W.W.R. 87 at
95.

[14] In McDonald v. Inland Natural Gas
Co. (1966), 57 W.W.R. 87 (B.C.C.A.), Branca J.A. commented at 95 that
“while the right of a trial by jury goes back far and is imbedded deeply in the
history of our law, and while a litigant is not to be deprived of that right
unless he is clearly within an exception created by law, where such an
exception applies, that right should be refused.”

[15] The onus is
on the applicant seeking to set aside a jury notice to show that the party who
selected trial by jury is not entitled to that mode of trial: Creasy v.
Sweny (1942), 57 B.C.R. 457, [1942] 3 W.W.R. 457 (C.A.).

[9]            
Counsel for the plaintiff draws my attention to the reasons of Madam
Justice Bruce in Cliff v. Dahl, 2012 BCSC 276. Bruce J. declined to
strike out a jury notice in two complex personal injury actions to be heard at
the same time. I accept that a jury is capable of hearing and deciding such
actions but the added complexities in the case before me of a trial within a
trial, and the implications of the plaintiff’s potential contributory
negligence in the personal injury action and the approach the counsel would
take to negotiating a settlement, the possibility of which is alluded to in
paragraph 10 of the statement of claim, lead me to the conclusion that Cliff
v. Dahl has several points of distinction from the application before me
and does not assist in my decision.

[10]        
There are inherent complexities in a solicitor’s negligence action. In Nichols
v. Warner, Scarborough, Herman & Harvey, 2009 BCCA 277, the Court of
Appeal commented on them as follows:

[26] In a case of this kind, the court is
required to essentially conduct a trial within a trial to the extent possible:
the first to determine whether the solicitor has been negligent in respect of
the litigation undertaken; the second to determine, if so, what loss the
solicitor’s negligence has caused the client. In some instances, whether there
has been a loss and what it was can be readily established. In others, however,
the prospect of success and recovery may not be easily shown due to
uncertainties of proof and perhaps legal consequences inherent in any given
case. Indeed, the mere passage of time may render the conduct of a trial within
a trial virtually impossible. What the court must do in such circumstances
where the prospect of recovery in the original action is inconclusive is to
quantify as best it can the value of what the authorities regard a lost
opportunity. The Alberta Court of Appeal summarized the approach to be taken in
Fisher v. Knibbe, [1992] 5 W.W.R. 385 at para. 12, 3 Alta. L.R. (3d) 97:

After conducting the “trial within a trial” to determine
what damages, if any, a negligent solicitor is liable for missing a limitation
period, three results are possible. First, the trial judge could find that had
the case gone to trial the plaintiff would have been successful and in such
case 100 per cent of the lost damages would be awarded against the solicitor. Second,
the trial judge could find that the plaintiff would not have been successful
therefore only nominal damages may be awarded against the solicitor. Finally,
where time has passed to such an extent that a “trial within a trial” would be
impossible, then the court must to the best of its ability calculate the value
of the opportunity lost to the plaintiff and award damages against the
solicitor on that basis.

[27] At least in
this jurisdiction, the threshold for recovery of a lost opportunity appears to
be one of a “reasonable possibility” that something was in fact lost. That was
the term used in Papageorgiou v. Seyl (1990), 45 B.C.L.R. (2d) 319
(C.A.) at 326. In Trinden Enterprises Ltd. v. Ramsay, 2009 BCCA 125 at
para. 22, Graybriar Industries Ltd. v. Davis & Co. (1990), 46
B.C.L.R. (2d) 164 (S.C.), aff’d (1992), 72 B.C.L.R. (2d) 190 (C.A.), was cited.
There, on a consideration of the authorities, it was said (at 193) the client
is entitled to an award if the claim said to have been lost is “not merely
‘fanciful’” but is established as a possibility. Once the threshold is met, it
remains for the court to assess the strength of the possibility, having regard
for the exigencies of the litigation.

[11]        
A jury should be assumed to be capable of trying the plaintiff’s personal
injury action if it had gone to trial. However, the defendant argues the extra
complexity arising from the need to determine whether the defendant Mr. Buxton
breached a duty to the plaintiff, which breach deprived the plaintiff of the ability
to join Surrey as a defendant, and which now mean a jury would need to assess
damages for that lost opportunity, ought to tip the balance against trying the
solicitor’s negligence action with a jury.

[12]        
I do not accept that a jury in this case would find its task overly
complex if it was asked to decide if the failure to give notice to Surrey of
the potential damage claim should be characterized as a breach of duty by the
defendant’s solicitor. Nevertheless, there are other difficulties with a jury
trial which lead me to conclude a trial by a judge alone is more suitable in
this case.

[13]        
In Lopushinsky v. Spraggs, 2000 BCSC 222, Sigurdson J. considered
the suitability of a jury trial in a complex case as follows at para. 19:

[19] The principles pertinent to this application, I think,
have been conveniently marshalled and aptly stated by Cohen J. in Yewdale
v. Insurance Corporation of British Columbia (1994), 1 B.C.L.R. (3d)
278 at 285 (S.C.), where he discussed the possibility that a case that requires
organized and deliberate consideration of complex issues might not be suitable
for trial by a jury:

I think that the disposition of this application falls
squarely within the words of McEachern C.J.S.C. (as he then was) in two
decisions. First, in Dunne v. Kokan (Unreported), September 8, 1982,
Vancouver Registry Nos. C801301, C801387, a case involving medical malpractice
allegations against multiple defendants, the Chief Justice said at p. 4:

In view of the foregoing I have a discretion to order that
the trial be heard by a Judge without a jury, and I so order because, in my
respectful view, all parties have a better chance of a satisfactory trial by
Judge alone, notwithstanding the presumed superior "wisdom" of a
jury. Wisdom is not the question. It is rather a question of managing
facts and issues for which a trial by Judge alone is more suitable in a case
such as this.

Secondly, in Macdonald v. Smith (1983), 48 B.C.L.R.
285 (S.C.), where the issues involved occupiers’ liability on the part of two
sets of defendants, negligence against four sets of defendants, breach of
statutory duty against two sets of defendants, possible contributory negligence
and assessment of damages, the Chief Justice said at p. 288:

Briefly, I think a case of this complexity cannot
conveniently or suitably be tried and a proper conclusion assured to the
parties when there is no opportunity for thoughtful and timely consideration
and reconsideration, particularly after several days of evidence and the other
proceedings which follow the completion of evidence. There must, in a
case such as this, be an opportunity for thoughtful review after preliminary
conclusions have been reached and there is too much risk of a compromise
verdict being accepted by the jury or a majority of the jury under pressures of
time and other personal consideration.

[Emphasis added by Sigurdson J.]

[14]        
The plaintiff’s claim is for damages for loss of the opportunity to
recover additional damages from Surrey, by way of settlement or trial, which he
alleges he could not recover because of the breach of duty of the defendant.
Paragraph 10 of the statement of claim against Mr. Buxton speaks of the lost
opportunity to recover damages from Surrey “by way of either settlement or
judgment.”

[15]        
In assessing damages the plaintiff will ask this Court to look at his claim
against the alleged negligent solicitor as if he had properly joined Surrey. If
that had been done, the plaintiff asserts he could have been compensated by
Surrey for losses that he could not obtain from the defendant Bond.

[16]        
A difficulty with this assertion, for the purpose of the present
application, arises from Ms. Bond’s allegation in the personal injury action
that the plaintiff was contributorily negligent. If the negligence of the
plaintiff was proven, the liability of the defendants, Bond and Surrey, if any,
would have been several only. The plaintiff could look to the defendants to
compensate him only to the extent of their respective degrees of fault. If
there was no contributory negligence found, the defendants’ liability would be
joint and the plaintiff could look to either defendant for all of his damages.
See Leischner et al v. West Kootenay Power and Light Company et al (1986),
70 B.C.L.R. 145 at 172.

[17]        
In negotiating a settlement, in the event Surrey had been joined, the
plaintiff’s legal advisers would need to consider the risk there would be a
finding of contributory negligence and therefore several liability only. I have
no means of assessing the extent of that risk but if it had become a reality,
the outcome could have led to the plaintiff recovering less than the full
measure of his damages. If, for example, the plaintiff was found 10% at fault;
Bond 50% at fault; and no fault attached to Surrey, the plaintiff would be
entitled to only one half his damages.

[18]        
On hearing the trial judge’s instructions on paragraph 10 of the
statement of claim, a jury would need to understand the approach to the
negotiations to settle the Personal Injury action taken by reasonably competent
legal advisers which could have led to a settlement with a better outcome for
the plaintiff than the one actually achieved. Having reached a conclusion on
that difficult question, the jury would need to turn its mind to assessing
damages in this action keeping in mind the trial judge’s instructions that the
assessment of damages for a lost opportunity is to be undertaken as described by
the Court of Appeal in the Nicols v. Warner, Scarborough, Herman
& Harvey, supra.

[19]        
Those questions would require most anxious consideration by a judge
alone and would make the task of charging the jury very onerous indeed.

[20]        
In Skretting Canada Inc. v. Westaqua Commodity Group Ltd., 2010
BCSC 1614, Verhoeven J. struck out a jury notice in a products liability action
saying, at para. 77:

[77] In a case like this it can
be difficult enough for a judge sitting alone to properly instruct himself or
herself as to the law applicable to the decision to be made. A judge sitting
alone is able first to determine the real and necessary issues of fact and law
applicable to the case. However, a judge sitting with a jury must charge the
jury on one occasion on all of the law that may be applicable, depending upon
what view of the numerous issues the jury may take. In this case, there is such
a multiplicity of issues that the task of a judge in charging the jury would be
all but impossible. In turn, the task of the jury would be overwhelming.
Moreover, since the jury gives no reasons for its decision, no matter the
result there is likely to be a difficult appeal.

[21]        
Those words apply with equal force to the application before me.
Accordingly, the jury notice will be struck. The defendant is entitled to his
costs of this application in any event of the cause.

“Affleck
J.”