IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20121119

Docket: M084600

Registry:
Vancouver

Between:

Daniel A. Wallman

Plaintiff

And

John Doe, Jack Doe
Company Ltd.,

Insurance
Corporation of British Columbia,

Rajinder S. Gill,
British Columbia Transit,

Resort
Municipality of Whistler, and Whistler Transit Ltd.

Defendants

Before:
The Honourable Mr. Justice Willcock

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff applies for leave to extend the time
within which an application may be brought to strike the jury notice and for an
order striking the notice in this case on the grounds the issues require the
prolonged examination of documents and accounts or a scientific investigation
that may not be conveniently conducted by a jury and on the ground the issues
are of a complex character.

History of the Proceedings

[2]            
The action was commenced by writ of summons and statement of claim filed
on November 20, 2008.  The plaintiff alleges that on December 4, 2006, at the
intersection of Lorimer Road and Highway 99 in Whistler, he was unable to
advance on a green light because the intersection was blocked by a snowplough
that entered the intersection against a red traffic signal.  He says the
vehicle he was driving was then rear-ended by a bus driven by the defendant
Gill.  He sues both Gill and the driver of the snowplough in negligence.  He
alleges BC Transit, Whistler, and the unidentified owner of the snowplough are
vicariously liable for the negligence of the driver of the bus and snowplough,
respectively.  ICBC is named as a nominal defendant pursuant to s. 24 of
the Insurance Vehicle Act.

[3]            
The plaintiff is an emergency physician by training and was so employed
prior to the accident.  He claims to have suffered mild traumatic brain injury,
generalized imbalance, vertigo, and post-concussion syndrome, among other
injuries, as a result of the accident.  These are said to have led to impaired
sleep, impaired concentration, and impaired short-term memory, all of which are
said to have made it impossible for him to continue to work as an emergency
room physician and to earn the very substantial income he was earning before
the accident.  The plaintiff was also involved in investing in real estate and
in managing his investments.  He claims his management skills are impaired.

[4]            
The first notice of trial was filed on March 5, 2010.  The case was set
for trial over 10 days commencing June 6, 2011.  A notice requiring trial by
jury was filed on March 23, 2010.  No application was brought to set aside that
notice.  The case was adjourned following a trial management conference on
April 27, 2011, and reset by notice of trial filed on April 28, 2011, for a
trial over 25 days commencing March 26, 2012.  A notice requiring trial by jury
was filed on May 12, 2011.  No application was brought to set aside that
notice.  The trial was once again adjourned following a further trial
management conference.  By notice of trial filed on April 17, 2012, the case
was set for trial over 35 days commencing November 3, 2013.  A further notice
of trial by jury was filed on April 19, 2012.  An application to strike the
jury notice was first filed on April 30, 2012.  That is the application before
me.

Evidence on the Application

[5]            
The plaintiff refers to the trial briefs filed for the trial management
conference in January of 2012 as statements of the issues identified by the
parties.  The plaintiff at that time identified only issues going to damages:  whether
the plaintiff suffered a mild traumatic brain injury; the extent of past wage
loss (the plaintiff claimed a loss of income as a physician in the range of
$300,000 to $400,000 per annum and losses from an inability to generate income
from investments); the extent of the future wage loss; special damages; the
cost of future care; the value of the tax gross-up of any award; and the
management fee.  The plaintiff identified 31 witnesses of whom 12 were experts
to be called for the plaintiff.  The plaintiff anticipated the need to
cross-examine 12 defence witnesses of whom many were experts.

[6]            
The defendant Gill and his employers identified the following issues: 
whether the accident occurred as a result of negligence or, in the alternative,
was inevitable as a result of the presence of ice on the road; whether the
accident was the result of the negligence of the identified driver of the
plough; whether the plaintiff suffered from pre-existing personality issues;
whether the plaintiff suffered from pre-existing chronic back pain or problems
in his hands due to a prior motor vehicle accident; whether the forces involved
in the collision could have caused a concussion; whether the plaintiff’s
psychological reaction was due to pre-existing issues or life changes, to the
actions of the snowplough, or to the impact of the bus; whether the alleged
psychological injuries are recoverable; whether the plaintiff failed to
mitigate his damages by failing to follow medical advice; whether the plaintiff
suffered an income loss or special damages; and whether he will incur any costs
of future care.  These defendants intend to call 19 witnesses including 11
experts in medicine and engineering.

[7]            
The defendant ICBC identified the issues as including the liability of
Gill and the unidentified driver and, implicitly, apportionment; the failure of
the plaintiff to comply with the provisions of the Insurance Vehicle Act
which requires reasonable efforts to identify the unknown driver; the quantum
of damages; and causation of damages including the role of pre-existing
conditions.  ICBC intends to call 20 witnesses, most of whom also appear on the
other defendants’ list.

[8]            
The material filed on the application includes reports describing the
following expert opinion evidence.

Dr. Riar

[9]            
Dr. Riar is a forensic psychiatrist.  His report is 13 pages in
length.  It describes the basis for his opinion that Dr. Wallman suffered
generalized anxiety disorder and a major depression, most likely as a result of
the stress created by the December 4, 2006, accident.  The report is not
particularly complex or difficult to understand.

Dr. Remick

[10]        
Dr. Remick is a consultant psychiatrist.  His seven-page reports
sets out the basis for Dr. Remick’s conclusion that Dr. Wallman
suffered from a post-concussive syndrome otherwise described as a cognitive
disorder and possibly an anxiety disorder or depression and the view that he is
totally disabled from employment, neither is this report complex or difficult
to understand.  Notably, however, Dr. Remick places some considerable
weight upon the neuropsychological opinion discussed below.

Dr. Ancill

[11]        
The first report of Dr. Ancill, a psychiatrist, is 47 pages in
length including appendices.  It sets out the basis for the opinion Dr. Wallman
suffered from a mild traumatic brain injury, a concussion in the accident, and
suffered thereafter from post-concussion syndrome.  He attributes depression
and anxiety to that injury.  It contains Dr. Ancill’s response to the
opinions of other specialists and outlines his disagreement with those who say
that Dr. Wallman suffered no concussion.  Dr. Ancill says Dr. Wallman
is unlikely to be able to work again as a physician in any capacity.  His
report is not too complex for a jury to understand.  The second report is 18
pages long including appendices.  It describes what Dr. Ancill says are
persistent symptoms of mild traumatic brain injury.  It sets out Dr. Ancill’s
opinion on the nature, diagnosis, treatment of abulia, which is described as an
amotivational syndrome in terms that will pose some difficulty for a jury.

Ms. Linde

[12]        
The 10-page report of a speech/language pathologist, Shari Linde, on
what are described as communication challenges that appear to be cognitive
problems on testing.  Assessment of this report will require some familiarity
with the speech pathologist’s expertise, test protocols, and measures of
validity.  It will not be easy for a jury to weigh.

Dr. Kausky

[13]        
The short report of Dr. Kausky, a specialist in sports medicine,
sets out the opinion Dr. Wallman is completely disabled by headaches,
decreased energy, and inability to concentrate.  The report poses no particular
difficulty for a jury.

Dr. Anton

[14]        
The 26-page report of Dr. Anton, a specialist in physical medicine
and rehabilitation, sets out the opinion that Dr. Wallman suffered a mild
traumatic brain injury, possible injury to the vestibular system, and possible
injury to the meniscus of the left knee.  Dr. Anton says it may be
difficult to separate the effects of traumatic brain injury from symptoms of
depression and anxiety.  Follow-up reports express the opinion Dr. Wallman
is disabled and the prospect that pre-existing problems are contributing to his
symptoms.  An 18-page September 15, 2011, report repeats the earlier opinions
and updates the prognosis.  These are not particularly difficult or complex
reports.

Dr. Wilkinson

[15]        
The 41-page report of Dr. Wilkinson, a neuropsychologist, sets out
opinions in a brief and clear manner, but is founded upon a neuropsychological
test battery that will be difficult for a jury to assess if there is an issue
at trial with respect to the extent or significant of the measured deficits. 
The tests described on pages 28 to 36 of the report are complex and will be
difficult for a jury to weigh.

Dr. Teal

[16]        
The report of Dr. Teal, a neurologist, is 26 pages in length
including appendices.  It sets out Dr. Teal’s opinion that Dr. Wallman
suffered a mild traumatic brain injury, soft tissue injuries, a vestibular
concussion leading to vertigo, and a possible meniscal tear.  Dr. Teal’s
evidence with respect to the interpretation of an MRI is complex, but his
opinion appears to be founded primarily upon reported symptoms.

Dr. Sexton

[17]        
The report of Brian Sexton, an ophthalmologist, that Dr. Wallman
suffers from a convergence and adjustment problems affecting his ability to see
close objects as a result of the accident is short and simple.  It does not
address the complicated causation issues arising from that opinion.  While
there might be an issue as to its sufficiency, it is not complex or difficult.

Mr. Berry

[18]        
The reports of Tracy Berry, an occupational therapist, are long and
detailed, but not complex.  The reports will require a jury to engage in
assessment of a detailed claim for special damages and future cost of care. 
The opinions in this report will add to the global complexity of the tasks
facing the jury.

Mr. Hohmann

[19]        
The reports of Joseph Hohmann, vocational consultant, set out the
opinion that Dr. Wallman’s chances of finding competitive employment are
not very good.  It is easily understood and weighed by a jury.  The tests
administered by Mr. Hohmann do not appear to be particularly complex or
difficult to understand or weigh.

Mr. Benning

[20]        
The Peta Consultants report on the present value of the past wage loss
claimed amounting to $1.265 million, the loss of income-earning capacity
amounting, by some estimates, to $4.983 million, and the future cost of care
claimed in the range of $475,000 to $687,000, the relevant multipliers, income
tax gross-up, and management fees are complex as they are in any case involving
contingencies and multipliers.  There is, of course, some prospect that counsel
will agree that the jury ought not to consider the tax gross-up or management
fees as these awards are routinely deferred for calculation after the principal
award.

Mr. Rempel

[21]        
Mr. Rempel’s opinion that collision speeds cannot be accurately
estimated without examining materials and vehicles similar to those involved in
a collision is neither complex nor difficult to interpret.  His response to Mr. Sawa’s
report is, similarly, unlikely to pose a challenge to a well-instructed jury.

Dr. Prout

[22]        
Dr. Prout, a neurologist, has written a 20-page report explaining
his opinion that Dr. Wallman has no neurological deficits and probably did
not suffer a traumatic brain injury.  Neither the report nor the appendices are
particularly complex.

Dr. Smith

[23]        
Dr. Smith, a psychiatrist, has written a 38-page report for the
defendants.  He is of the opinion Dr. Wallman’s symptoms are the emotional
sequelae of the accident, not the result of a brain injury or concussion and
that although the psychological condition has been poorly treated, it was in
remission in March 2011.  The report contains a detailed chronology of medical
treatment, but is not too complex for consideration by a jury.

Mr. Brown

[24]        
Mr. Brown examined the vehicles involved in the collision and
expresses an opinion on the speed change that occurred at the time of the
collision, less than five kilometres per hour in his opinion.  His report is
not of a complex character.

Mr. Richards

[25]        
Mr. Richards, an engineer, expresses an opinion on the magnitude of
head accelerations experienced by Dr. Wallman.  He is said to be an expert
in kinematics, injury mechanics, and biomechanical engineering.  The opinion is
expressed in complex technical terms.  For example, Mr. Richards says:

The HIC (Head Injury Criterion)
calculated by Welch et al. (2010) ranged from 3.9 to 12.4 in the 8 km/h Delta V
(velocity change) impacts, which, according to Kuppa et al. (2006) corresponds
to a much less than 1% chance of a moderate brain injury defined on the
Abbreviated Injury Scale (2005).  Kuppa did not estimate the probability of
MTBI, however Zhang et al. (2004) defined thresholds for MTBI based on
probability of injury.  Zhang et al (2004) estimated a 25% probability of MTBI
at 66 g’s.

[26]        
This review of the studies is followed by the relatively simple
conclusion that, "There were no documented cases of a 5 km/h rear-end
impact causing a concussion", but that is followed by the explanation:

In fact, in the Welch et al.
(2010) study the highest head acceleration across all impact speeds (ie: 8 km/h
to 24 km/h Delta V’s) was only 31.4 g’s.

[27]        
The relatively simple conclusion in this report cannot be accepted or
challenged without an understanding of the complex material referred to by the
author.

Donald Pohl

[28]        
Mr. Pohl, an engineer, conducted crash tests on the same model
Honda as that driven by the plaintiff and the same model bicycle rack as that mounted
on the front of the BC Transit bus driven by the defendant Gill.  He estimated
the speed change at impact as less than three kilometres-per-hour.  His report
is not of a complex character.

Mr. Sawa

[29]        
Mr. Sawa uses estimates of reaction time, breaking distances, and
friction coefficients to draw conclusions with respect to the possibility the
accident could have been avoided by Mr. Gill.  The report is technical. 
It will have to be carefully studied by the jury if they are to appreciate its
impact and weight.

[30]        
The defendants’ material establishes that by the time the second jury
notice was filed, the plaintiff was aware of the reports of all of the experts
other than Drs. Ancill and Sexton, economist Benning, and engineers Pohl
and Sawa.  Some of the latter reports were from plaintiff’s experts and those
opinions were presumably available to plaintiff’s counsel.  Others were
obtained to address issues already addressed by other experts and, therefore,
issues known to the parties.

Positions of the Parties

[31]        
The plaintiff says the case requires a prolonged examination and
understanding of medical documents and reports containing terminology and
information of a technical and scientific nature.  The income records in this
case will be voluminous and, because the income of the plaintiff was earned
through a private health company.  It may be necessary to refer to source
documents as well as the accountants’ summaries of earnings and tax returns.  While
individual issues such as the question whether the force of the collision was
sufficient to cause an injury are not so intricate or complex as to justify
striking the jury, the plaintiff says a combination of the issues that must be
addressed take the case beyond that which ought to be determined by a jury.

[32]        
On top of the difficult damages issues, there are causation and
apportionment issues.  The plaintiff says that here, as in Gulamani v.
Chandra, 2009 BCSC 1042 at para. 8:

The essence of the plaintiff’s
argument is that the complicated and lengthy nature of the trial will be such
that a jury would be unable to maintain a high level of appreciation for the
case as it evolves, and that there would therefore be a real and substantial
danger of an unjust result if the matter proceeds with a jury.

[33]        
The defendants argue the right to trial by a jury is a substantive right
of which they ought not to be deprived except for cogent reasons.  They say
that more than two years elapsed between the delivery of the first jury notice
and the application to strike the jury and a full year between the second jury
notice and the application.  There has not been any major change in the nature
of the issues since the filing of the second jury notice in April 2011 and this
application comes on too late in the day.  The defendants argue the case is not
so complex that a jury is inappropriate.  There is said to be no factual or
principled basis to deny the defendants their right to a jury trial.

Issues

[34]        
The issues to be decided on the case are whether the application may be
brought now and, if so, whether the jury notice ought to be struck.

The Law

Supreme Court Civil Rules

[35]        
Rule 12-6 provides a party may require a trial to be heard by a jury by
filing and serving a jury notice.  Subrule 12-6(5) describes the basis upon
which an application may be brought to strike a jury notice:

(5)        Except
in cases of defamation, false imprisonment and malicious prosecution, a party
on whom a notice under subrule (3) has been served may apply

(a)        within
7 days after service for an order that the trial or part of it be heard by the
court without a jury on the ground that

(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, or

(b)        at any time for an order that
the trial be heard by the court without a jury on the ground that the trial
relates to a fast track action or to one of the proceedings referred to in
subrule (2).

[36]        
Rule 22-4 provides that the court may exercise its discretion to extend
the time within which this or any application may be brought.

Jurisprudence

[37]        
The current Rules incorporate the wording and, hence, the jurisprudence
developed around the former provisions.  The only modification to the Rules in
subrule (5)(a)(iii) permits a court to dispense with a jury where one is not
warranted by the amount involved in the proceeding.  The parties agree that has
no application in the case at bar.

Application to extend the time within which the application may be brought

[38]        
The parties acknowledge that it is the original jury notice that must be
considered in determining whether the application to strike the jury is brought
in time.  Where that time has passed, the judicial discretion to extend time
limits afforded in what is now Rule 22-4, formally Rule 3(2), should be
exercised where:

(a)      at an early stage of the
proceedings, the plaintiff formed an intention to strike the jury notice;

(b)      there has been such a
change in circumstances as to materially alter the character of the proceedings
and render them clearly inappropriate for trial by judge and jury; or

(c)      trial
fairness so requires reconsideration of the mode of trial that the lapse of
time cannot bar the motion to strike.

[39]        
In support of that description of the criteria, I rely on Reischer v.
Love, 2005 BCSC 1352,Harder v. Nikolov, 2001 BCSC 1101, and Gulamani
v. Chandra, supra.  These criteria permit the jury notice to be set
aside where the failure to apply was due to inadvertence, where there was
always an intention to apply, where the facts have substantially changed and
the applicant cannot fairly be required to have applied earlier, where the
interests of justice speak strongly in favour of trial by judge alone.

[40]        
The case law does not expressly describe an obligation to bring an application
to strike a jury promptly on becoming aware the issues have become complex.  It
seems rational, however, in my opinion, to consider any delay in bringing the
application as a factor in granting or refusing leave to extend the time within
which the application may be brought.  The Rule requires early application to
strike a jury so as to ensure the parties do not long labour under a false
impression with respect to the mode of trial.

[41]        
In Gulamani, the court held the plaintiff could not have been aware
of all the circumstances in relation to the combined actions dealing with her
motor vehicle accidents at the time the original jury notice was filed.  A
significant change in circumstances had occurred.  The trial would be
significantly longer and would involve complex legal issues related to
causation in the context of two accidents that occurred a decade apart.  This
was held to be a sufficient change to the character of the proceedings so as to
warrant consideration of the plaintiff’s application to strike the jury notice.

Substantive motion

[42]        
A trial by judge and jury is a presumptive right, affirmed by the Court
of Appeal in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA
399.  It is only where the applicant opposing the jury trial has satisfied one
or more of the exceptions set out in what is now Rule 12-6(5) that the jury
notice may be struck.  To review the Rule, 12-6(5) permits a judge to strike
the jury notice where the applicant has established:

(1)      the issues require a
prolonged examination of documents that cannot be made conveniently with a
jury;

(2)      the issues require a
prolonged examination of accounts that cannot be made conveniently with a jury;

(3)      the issues require a
scientific investigation that cannot be made conveniently by a jury; or

(4)      the
issues are of an intricate or complex character.

[43]        
The fact the materials in evidence are lengthy does not necessarily mean
that a prolonged examination of them is required.  The common experience is
that in most cases, hospital, medical, or accounting records, having been made
an exhibit, play very little role in the proceedings.  That was a finding of
the Chief Justice in Wipfli (Guardian ad litem of) v. Britten (1981), 32
B.C.L.R. 343 (S.C.).  To determine whether a prolonged examination will be
required by the trier of fact, the court must consider carefully what the
evidence will actually be: Guichon v. Johnston, [1998] B.C.J. No. 2643
(S.C.).

[44]        
When a prolonged examination or scientific investigation will be
necessary, the court must then turn to the second part of the test:  whether or
not that examination can be made conveniently with a jury.  The test is not
whether the examination can possibly be effected by a jury.  It incorporates
the concept of convenience.  Convenience in this context includes the ability
of a jury to both understand evidence and retain that understanding such that a
fruitful analysis will be possible by the end of the trial.

[45]        
The ground for striking a jury notice in Rule 12-6(5)(a)(ii) requires
the court to consider whether the issues are of intricate or complex
character.  The combination of many issues may make them sufficiently complex
that the matter should be tried without a jury: Yewdale v. Insurance Corp.
of British Columbia (1994), 1 B.C.L.R. (3d) 278 (S.C.).

[46]        
The anticipated length of the trial is a factor that may be considered,
but is not determinative.  In Aberdeen v. Langley (Township of) et al.,
2006 BCSC 1980, for example, a motor vehicle accident claim with many liability
and damages issues set for trial over 25 days was allowed to be heard by a
jury.  Mr. Justice Groves in that case held at paras. 15-16:

As for the damages, the most significant issue on damages in
my view, and this is again as suggested by counsel for the plaintiff and not
seriously disputed, the amount which Mr. Aberdeen should receive for his
cost of future care.  Clearly Mr. Aberdeen, in regards to non-pecuniary
loss, something that juries often have to grapple with, is someone who would
likely fall within the upper limits of damages for pain and suffering.  The
cost of future care issue may be a large dollar item but is not a complex
issue, in my view.  The jury will be asked to assess the non-pecuniary loss of
future income, special damages, an in‑trust
claim and the claim for cost of future care, but none of these are of such a
complex nature that juries are not required regularly in British Columbia to
make determinations on them.

This is not a sufficiently
complex case, nor are the issues so complex that a jury properly instructed
cannot in fact make the determination that juries for many years have been
required to make.

[47]        
In another personal injury case arising out of a motor vehicle accident
set for trial for 25 days, Cliff v. Dahl, 2012 BCSC 276, Madam Justice
Bruce held at para. 42:

…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.

[48]        
In Gulamani, Madam Justice Arnold-Bailey appeared to have given
significant weight to the estimated length of the trial, 35 days in that case,
significantly longer than in Reischer where the trial was set for 15
days, or Aberdeen and Cliff in which cases the trials were set
for 25 days.

[49]        
The fine line between cases that can be heard by civil juries and those
regarded as too complex or requiring scientific investigations that cannot be
conveniently conducted is drawn in the narrow space between the decisions of
this court in Gulamani and Reischer.  In Reischer, the
plaintiff had been involved in a series of motor vehicle accidents, two of
which gave rise to the proceedings to be heard by the jury.  The plaintiff
claimed the first caused concussion, a head injury, loss of consciousness,
soft-tissue injuries, shock, nervous upset, and emotional trauma, all leading
to a loss of past and future income-earning ability.  The second accident
occurred three-and-a-half years later.  It was said to have caused flexion/extension
injury and pain causing headaches, sleep deprivation, and causing or
contributing to the loss of past and future income.  Liability was an issue.  The
trial, as I have noted, was set for 15 days.  The contentious issues included
causation, contributory negligence, an assessment of physical and psychological
injury, pre-existing causes, economic loss, and the credibility of the
plaintiff.  The plaintiff described the issues as so intricate or complex that
a jury would find them difficult to understand.  The evidence included
voluminous hospital records, 500 scan images, seven or eight medical-legal
reports, vocational, engineering, and economic reports, and the testimony of
most experts at trial.

[50]        
At para. 54 of Reischer, the court declined to strike the
jury notice and concluded:

Upon consideration of the
pleadings, the expert reports filed in connection with these applications and
counsels’ submissions, I am not persuaded that the issues cannot
"conveniently" be determined by a jury, or that the issues are of
such an intricate or complex character that the defendants should be denied
that right. Rather, l am satisfied that although the issues are somewhat
intricate and complex the examination of the documentary evidence and
consideration of the expert testimony to be led in connection with the nature,
extent and cause of the plaintiff’s alleged injuries can, with proper
direction, be made conveniently with a jury.

[51]        
The court found that a jury would be sophisticated enough, with the
assistance of counsel and the judge, to comprehend the evidence, retain an
understanding of it, and apply it in analysis.  In Gulamani, Madam
Justice Arnold-Bailey held 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 … or whether the issues are of a complex
or intricate nature … is relatively high even in the context of a long trial
with many difficult legal questions.

[52]        
The case considered in Gulamani was described in para. 45 of
the judgment as follows:

…in the present case, a great
volume, primarily of medical records, but also accounting records, will be
submitted into evidence.  This will likely be comprised of several thousands of
pages and the specific nature of these records will indeed involve a prolonged
examination.  They go far beyond the category of hospital records and procedure
manuals that McEachern C.J.B.C. referred to in Wipfli.  The medical
evidence will stem from the 20 medical/legal reports to date, with perhaps a
half dozen or more to come, and, at a minimum, 22 or 23 expert witnesses. 
Among the physicians and medical specialists are neurologists, thoracic
surgeons with a special expertise in thoracic outlet syndrome, rheumatologists,
orthopaedic surgeons (including ones with special expertise in shoulders),
chronic pain specialists, psychiatrists and physiatrists.  Other experts
include psychologists, kinesiologists, chiropractors, vocational counsellors,
and functional capacity evaluators.  A review of the medical/legal reports
filed to date indicates a considerable range of opinions, amongst the medical
specialists in particular, as to the correct diagnosis, and the extent of and
preferred treatment options for the various injuries and conditions that the
plaintiff claims arose from the first accident, and then were exacerbated and
augmented by injuries sustained in the second accident.  There is no question
in my view that the nature of the examination that must be carried out by the
trier of fact of these documents, reports and accounts may not be done
“conveniently” by a jury, attributing to that word its proper legal meaning.

[53]        
The legal issues in that case were also described as very complex.  At
para. 50, the court held:

In addition, the legal issues
presented by this case are likely to be exceedingly complicated.  I agree with
the submission made on behalf of the plaintiff that the law related to the
issue of causation in this case, including the interjection of the defence of novus
actus, is very complex even for those trained in law.  Assessing the
quantum of damages under the various heads claimed and apportioning damages as
between the two sets of defendants is likely to be an exceedingly difficult and
complex task.

[54]        
For those reasons, the jury notice was set aside in Gulamani.

Analysis

Timing of the Application

[55]        
The plaintiff will have leave to apply to strike the jury notice.  There
has been sufficient evolution of the complexity of the case to justify the
exercise of the discretion described in Rule 22-4 to extend the time within
which the application may be brought.  While the application could have been
brought earlier, the trial is still far off.  The parties could not point to
any measure having been taken because the trial would be heard by judge and
jury that would not otherwise have been taken.  No prejudice is likely to be
occasioned by the delay from April 2011 to April 2012 in bringing on this
application.  Once it is established there has been a significant change in the
complexity of the case after the expiry of the time for bringing the
application, as a rule, delay in bringing on the application to strike the jury
is but one factor to consider on the application, but it is not fatal.

The Substantive Motion

[56]        
In my view, the evidence is not sufficient to establish this case will
require a prolonged examination of documents or accounts.  For reasons set out
in Wipfli v. Britten, I am not satisfied it will be necessary for the
jury in this case to pore over either medical or accounting records.  That task
here, as in many personal injury cases, even complex ones, is likely to be left
largely to experts.  Certain evidence is of an intricate and complex character,
namely, neuropsychological evidence, the evidence of the significance of the
MRI, the detailed evidence with respect to care needs, the relevant
multipliers, contingencies, income tax gross-ups, and management fees, and the
biomechanical evidence.  Such evidence alone in other cases has been held not
to be so complex as to deprive the litigant of the presumptive right to a trial
by jury.

[57]        
The issues will also require careful consideration of scientific
evidence by the jury.  In my view, that scientific investigation cannot
conveniently be undertaken by a jury.  The trier of fact in this case, as in Gulamani,
will have to consider evidence going to many issues over a protracted period. 
It may be necessary to retain fine detail from the examination in chief and
cross-examination of many witnesses on multiple issues for weeks before those
issues are traversed by defence witnesses.  Considered on their own, most, but
not all, of the expert reports in this case may be understood by a jury in
light of the full examination in chief and cross-examination of the experts,
but retention of that understanding over several weeks is likely to be so
difficult, in my view, that fruitful analysis at the end of the day may be
impossible.

[58]        
The jury notice will, therefore, be set aside and there will be an order
that the trial of this case will be heard by judge alone.

[SUBMISSIONS]

[59]        
Costs will be in the cause.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock