IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121210

Docket: M106045

Registry:
Vancouver

Between:

Jamie
Tudor Henshall

Plaintiff

And

Waldemar
Stanislaw Plona, Super Save Disposal Inc. and Royal Bank of Canada

Defendants

Before:
Master Taylor

Reasons for Judgment

[1]            
The plaintiff seeks an order that the jury notice in this matter be
struck and that the trial, currently scheduled to commence on January 7, 2013
for 25 days, proceed before a judge alone.

[2]            
The defendant respondents oppose the granting of the orders sought by
the plaintiff.

Background

[3]            
This action arises out of a motor vehicle accident which occurred on
October 6, 2005. Liability is in issue with the primary question for
determination being the plaintiff’s speed and opportunity to avoid the
accident.

[4]            
The action is being heard at the same time as the actions with respect
to two subsequent motor vehicle accidents in which the plaintiff was involved,
however liability is not an issue in either of those two proceedings. The
damages claimed in the latter two matters appear to be minor temporary
aggravations of the soft tissue injuries alleged to have been caused by the
accident in 2005.

The Accident of 2005

[5]            
The action was initially commenced on April 5, 2007. A notice of trial
was filed on April 8, 2009 setting the matter for a ten day trial commencing
October 18, 2010. The defendants filed a notice requiring trial by jury on May
13, 2009.

[6]            
At the request of counsel for the plaintiff, the trial was adjourned and
rescheduled for 15 days commencing January 7, 2013. Counsel for the defendants
raised the issue of adequacy of trial days with counsel for the plaintiff and
suggested that a few more weeks be added to trial. Accordingly, counsel then secured
two additional trial weeks. Thus, trial is set to commence on January 7, 2013,
for 25 days.

[7]            
The defendants allege that the credibility of the plaintiff is a key
issue at trial. The defendants say that the evidence reveals significant
conflicts in the evidence, including the plaintiff’s failure to disclose his
significant pre-accident history of head injuries and drug and alcohol use.

[8]            
The plaintiff claims he suffered traumatic brain injury, chronic pain
including neck, back and psychological disorders as a result of the accident of
October 2005.

Discussion

[9]            
The plaintiff’s application is made pursuant to Rule 12-6(5), which
reads in part:

(5)… 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[.]

[10]        
The seven day requirement was not raised by either counsel, so I assume
it was not in issue before me.

[11]        
The plaintiff submits that all of R. 12-6(5), (i), (ii) and (iii) apply
in the circumstances of this case such that any one or all of them could be
used to strike the jury notice filed by the defendants.

[12]        
Plaintiff’s counsel submits that by virtue of the volume of documents
and witnesses, a determination cannot conveniently be made with a jury. Counsel
cites the 14 lay witnesses and 13 expert witnesses for the plaintiff who have
provided 22 expert reports in total. As well, counsel for the defendant intends
to call at least 12 lay witness and six expert witnesses for a total of 10
expert reports. Thus, says the plaintiff, the sheer volume of witnesses and
expert reports would have a potential to overwhelm a jury.

[13]        
As well, the plaintiff says the expert medical opinion evidence to be
presented at trial is complicated by the fact that, beginning at age 16, the
plaintiff sustained multiple instances of head trauma prior to the accident of October
2005, which complicates the determination of causation.

[14]        
On the other hand, the defendants submit that the evidence to be
presented to the jury does not involve voluminous records and disputes the
plaintiff’s characterization that “thousands” of clinical entries are relevant
to the matters in issue.

[15]        
Further, the defendants say that the examination for discovery evidence
of the plaintiff will only be used to the extent that it is necessary to
impeach the plaintiff.

[16]        
The defendants resist the plaintiff’s application and rely on some
general principles, to the effect that the right to a trial by jury is a prima
facie substantive right of great importance, and that the onus is a heavy
one on the applicant to deprive a party of the prima facie substantive
right to a jury: Stewart v. Chen, 2002 BCSC 1478, at para. 14; Cliff
v. Dahl, 2012 BCSC 276, at para. 20.

[17]        
Counsel for the plaintiff suggests that the British Columbia Court of
Appeal decision in Nichols v. Gray, [1978] B.C.J. 818, 9 B.C.L.R. 5, 8
C.P.C. 141, is the leading case. That was a case where the appellant was a
medical doctor and the respondent was his patient. The respondent alleged that
the appellant:

“failed or refused to notice,
diagnose or report . . .” an infection which the female respondent developed
while under his care and that as a result they had “sustained injury, loss and
damage”. The trial judge held that there was no factual material upon which a
decision to strike out the jury notice could be justified. He also held that the
statements of counsel as to the evidence (including the reports of experts)
likely to be adduced at trial could not form the basis of judgment on the
application.

[18]        
The trial judge in Nichols held that there was no factual
material upon which a decision to strike out the jury notice could be
justified. He also held that statements of counsel as to the evidence
(including the report of experts) likely to be adduced at trial could not form
the basis of judgment upon the application. In dismissing the appeal, the court
held that the onus was on the applicant in each case to bring itself within the
exceptions of R. 39(20), which is similar in wording to the current R. 12‑6(5).
The court held that the onus was on the applicant to bring himself or herself
clearly within the exceptions of the Rule, and while there might have been
sufficient evidence to bring the case within the Rule, the Court of Appeal
would not interfere with the exercise of the judge’s discretion not to deprive
the plaintiff of a jury trial.

[19]        
I have taken the liberty of reading some of the medical legal reports
that will be put into evidence. Aside from some wording pointed out to me by
plaintiff’s counsel in a few of the expert reports which the plaintiff intends
to use, all expert reports, in my view, appear to be well written and easily
understandable. Indeed, in each case, the opinion of the author is easily
extracted from the minutiae of the author’s scientific jargon.

[20]        
The defendants maintain a jury is well equipped to decide this case because
today’s juries are far more sophisticated and better educated than in the past.

[21]        
The defendants submit that the applicant’s burden is not satisfied by
mere speculation as to the number of documents a jury will have to examine. As
suggested in Cliff v. Dahl, 2012 BCSC 276, 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.

[22]        
The facts of Cliff v. Dahl are virtually indistinguishable from
the case at bar, except in Cliff it was the defence who sought to strike
the plaintiff’s jury notice. Each is a twenty-five day trial. Each involved a
brain injury, however, Cliff had 50 expert reports, whereas there are
only 32 in this case. As well, Cliff involved three accidents with
liability at issue in two of them and six counsel were involved. Surely, if a
case was thought to be complex, one might have thought Cliff to be so,
yet Madam Justice Bruce determined that the jury notice should not be struck.

[23]        
In my view, the Cliff case is compelling and I reproduce some of
the more persuasive paragraphs from that case which essentially mirror all of
the arguments from both parties in the case at bar, beginning at paragraph 16:

[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.

[24]        
Finally, at para 42 Cliff v. Dahl:

[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).

[25]        
The plaintiff also suggests that subrule(5)(a)(iii) applies in that the
extra time and costs involved in requiring that the trial be heard by a jury
would be disproportionate to the amount involved in the action.

[26]        
In other words, the plaintiff says that since the defence is that the
traumatic brain injury was not caused by the accident and therefore the damages
should be smaller, that the proportionality rule in subrule (5)(a)(iii) should
be invoked to strike the jury notice. The defendants say what is really
important here is the amount involved as a brain injury, not whether it would
be a greater or lesser amount, and maintain that due to the positions of each
of the litigants there is likely to be a wide range of damages sought by the
parties which is the important issue in considering whether or not Rule
12-6(5)(iii) applies. I agree that it is not disproportionate to have a jury
trial given the facts of this case.

[27]        
Given the particular facts of this case, I have concluded that the
applicant has failed to satisfy me that the jury notice should be struck based
on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly,
the application is dismissed with costs to the defendants.

“Master
Taylor”