IN THE SUPREME COURT OF
BRITISH COLUMBIA
Citation: | Moll v. Parmar, |
| 2012 BCSC 1915 |
Date: 20121113
Docket: 17406
Registry:
Cranbrook
Between:
Wesley Moll by his
litigation guardian
Rick Luyendyk, and
the said Wesley Moll
Plaintiff
And
Narinder Singh Parmar
Defendant
Before:
The Honourable Mr. Justice Abrioux
Oral Reasons for Judgment
In
Chambers
Counsel for Plaintiff: | L.G. Harris, Q.C. |
Counsel for Defendant: | R.L. Garner |
Place and Date of Trial/Hearing: | Vancouver, B.C. October 12, 2012 |
Place and Date of Judgment: | Vancouver, B.C. November 13, 2012 |
I INTRODUCTION
[1]
The defendant has brought an application pursuant to Rule 12-6(5)(a) to
have the jury notice in this personal injury action struck and to have the
matter proceed to trial without a jury. The jury notice was filed on July 14,
2012.
[2]
This action arises out of injuries allegedly sustained by the plaintiff
as a result of an automobile accident which occurred on or about February 13,
2006 (the accident). The plaintiff alleges he sustained a serious closed head
and orthopedic injuries. Both liability and quantum of damages are in issue.
[3]
Following a trial management conference before me which occurred on June 20,
2012, I was appointed the trial judge. The action is set to proceed to trial
for at least 20 days commencing February 13, 2013.
[4]
The procedural history of this action is set out in some detail in my
reasons for judgment in Moll v. Parmar, 2012 BCSC 1373.
[5]
Insofar as the issues relevant on this application are concerned, the
history can briefly be summarized as follows. On July 28, 2011, the defendant
filed a jury notice. Through inadvertence it was not filed on time.
[6]
The plaintiff, who had always wanted the matter to be tried with a jury,
resisted the defendants inadvertent late service of a jury notice in order to
preserve an August 2012 trial date.
[7]
The defendant then filed a notice of application on September 15, 2011,
seeking an extension of time to serve the jury notice. In an affidavit sworn in
support of that application, counsel deposed:
My instructions in this matter since the very early stages in
this litigation before trial dates were ever discussed were to set this matter
for trial with a judge and jury.
[8]
The plaintiff ultimately consented to the defendants application, with
the jury notice then being served on the plaintiff.
[9]
In May 2012, that is approximately three months before the scheduled
2012 trial date, the plaintiff applied to adjourn the trial. This was opposed
by the defendant. At that time, the court was advised the defence still
intended to proceed to have the case tried with a jury on the scheduled date of
August 13, 2012.
[10]
On June 20, 2012, a trial management conference occurred before me. At
that time, the trial estimate was reviewed within the context of the trial brief
which had been filed by the parties. I inquired of counsel whether it was still
intended that there be a jury. Counsel for the defendant responded that those
were his present instructions.
[11]
By the time of the trial management conference, the parties had
exchanged virtually all of the experts reports which were intended to be
relied on at the trial, which was then set for August. The only experts report,
with the exception of three rebuttal reports served by the plaintiff since the
trial management conference, is that of Mr. Robert Carson, an economist. The
defendant has retained Mr. Mark Szekely to prepare a rebuttal to Mr. Carsons
report.
[12]
Following the trial management conference, plaintiffs counsel suspected
the defendant may not have the trial proceed before a jury. Accordingly, the
plaintiff then arranged to have an application brought before me to extend the
timeframe for him to file a jury notice. By this time, I had been appointed the
trial management and trial judge. I granted that application on July 16, 2012,
and the plaintiff paid the jury deposit that day.
[13]
The plaintiff then filed this notice of application on July 19, 2012.
[14]
At a further trial management conference which occurred on
September 7, 2012, I directed that this application be heard during
the week of October 9, 2012, and it was heard on October 12, 2012.
[15]
Shortly before the hearing of that application, that is, in October
2012, I was provided with the application record, which included counsel for the
defendants, Mr. Jakels, affidavit sworn July 19, 2012. That affidavit
had appended as exhibits the various medical reports which had been served and
in addition, those of occupational therapists and vocational rehabilitation
specialists. Also included was the report of Mr. Carson, which raised the basis
for the plaintiffs claim for the loss of an interdependent relationship. I had
been provided with a copy of that report in July 2012 within the context
of the defendants application to adjourn the trial.
[16]
The experts reports in question comprise the better part of 475 pages. In
addition to those reports, there may well be various clinical, hospital and
accounting records which will form part of the evidence at trial.
II THE PARTIES POSITIONS
[17]
The defendant applicants position is that the application before me on
July 16, 2012, dealt only with the procedural issue of filing a jury
notice outside the time limits set out by the Rules of Court. It did not
deal with the merits of whether this matter is appropriate for a trial with a
jury.
[18]
The defendant submits the issues in this action are numerous and include
the following:
(a) liability for the
accident;
(b) the causation of the
plaintiffs injuries;
(c) whether the plaintiff
sustained a brain injury, and if so, whether it has resolved;
(d) whether the
plaintiffs current difficulties with mood and cognitive dysfunction are the
ongoing effect of a brain injury or if they are related to depression, chronic
pain or a sleeping disorder;
(e) whether the plaintiff
had a pre-existing condition such that the crumbling skull doctrine applies;
(f) whether
the plaintiff sustained a post-traumatic stress disorder as a result of the
accident;
(g) whether the plaintiff
is permanently or partially disabled or whether he is disabled at all;
(h) the effect of the
accident on the plaintiffs employability and whether he will require future
care and housekeeping, and in addition whether he has suffered the loss of an
interdependent relationship; and
(i)
whether the plaintiff has mitigated his losses.
[19]
The defendant points to the number of experts whose reports have been
served. There are nine experts for the plaintiff. These include a general
practitioner, a neuropsychologist, a psychiatrist, a sleep medicine specialist,
a physiatrist, a diagnostic radiologist, an occupational therapist, a vocational
consultant and an economist.
[20]
The defendant has served reports from a psychiatrist, two neurologists,
a neuro-radiologist, a registered nurse and a neuropsychologist. In addition,
he expects to serve a report from an economist and an accountant to rebut the
reports of Mr. Carson and the plaintiffs accountant.
[21]
The defendant points to what is set out in the plaintiffs trial brief,
being that plaintiffs counsel anticipates filing a bound and indexed document
brief at trial containing medical, education, occupational, ICBC, police and
miscellaneous records, together with certain drawings and photographs.
[22]
The plaintiffs trial brief indicates he intends to call 18 witnesses. The
defendants trial brief is to the effect he intends to call 14 witnesses with
possibly two to three additional witnesses.
[23]
The defendant also points to the fact that both parties have objections
to the admissibility of each others experts reports. Approximately two to
three days will be required to deal with admissibility arguments.
[24]
Reduced to its essentials, it is the defendants position that the
issues in this action require prolonged examination of documents or accounts or
are of a scientific or local investigation that cannot be made conveniently
with a jury. In addition, or in the alternative, the issues are of an intricate
or complex character. Lastly, the extra time and cost involved in requiring the
trial be heard by the court with a jury would be disproportionate to the amount
involved in the action.
[25]
In opposing the application, it is the plaintiffs position that up to
the filing of the defendants trial brief on June 14, 2012, he had insisted on
his right under the Supreme Court Civil Rules to a trial by jury. In
fact, he had opposed the plaintiffs application to adjourn the trial in part
on that basis. Furthermore, the defendant continued to insist on a trial by
jury at the trial management conference of June 20, 2012. It was only
by letter dated July 6, 2012 that counsel for the defendant for the first time
notified counsel for the plaintiff that he was withdrawing from the jury
position.
[26]
The plaintiff submits that the defendant ought not to be permitted to
raise any matter or state of affairs which existed prior to what the plaintiff
terms are the key dates because at that time the defendant was insisting on
his right to a jury trial.
[27]
The plaintiff notes that by June 14, 2012, he had delivered all of his
experts reports, save for the addendum or rebuttal reports and the economic
report of Mr. Carson. By July 6, 2012 all reports had been delivered. The
defence also retained experts to either examine the plaintiff or to rebut the
plaintiffs experts on key points. He had also retained Mr. Szekely for the
purposes of providing a rebuttal report to that of Mr. Carson.
[28]
It is the plaintiffs position that whichever date is selected as the
key date, being that which the defendant was still insisting on his right to
trial by jury, the defendant ought to be estopped from raising on this
application any matter or state of affairs which existed as of that date or
prior to that date.
[29]
The issue, the plaintiff says, then becomes what changed after this key
date to allow the defendant to invoke the provisions of Rule 12-6(5)(a). The
plaintiff says the only matter which emerged following June 14, 2012, was that
of the interdependency claim. The question then becomes whether this matter is
sufficient to deny the plaintiff his right to a trial by jury.
[30]
As far as the time estimates are concerned, the plaintiff takes issue
with the defendants estimate that the trial will now take at least 30 days. The
plaintiff says that if admissions are obtained from the defendant, up to eight
witnesses will no longer be required. Furthermore, his estimate as to the
number of witnesses was based on a direction from the court that all possible
witnesses be identified by the parties.
[31]
The plaintiff acknowledges that the expert evidence is in disagreement
as to whether the plaintiff suffered what his counsel terms an organic brain
injury. He says this type of disagreement is routinely found in personal
injury cases. In any event, the plaintiffs alternative theory is that the
injuries in the accident resulted in chronic pain with physical, cognitive and
psychological sequelae.
[32]
According to the plaintiff, while the origin of the plaintiffs ongoing
symptomatology may be technical or scientific in nature, that is, an organic
brain injury or chronic pain, the principal issue before the court is whether
it was the accident which caused the plaintiffs ongoing symptomatology and
significant decrease in functioning. The plaintiffs case will depend largely
on collateral witnesses, and there is no reason to believe that a jury will not
be able to understand and assess that evidence.
III THE APPLICABLE LEGAL PRINCIPLES
[33]
For the purpose of this application the defendant relies primarily on
12-6(5)(a)(i) and (ii).
[34]
In Gulamani v. Chandra, 2009 BCSC 1042, decided under the current
Rules predecessor, Arnold-Bailey J. summarized the applicable law at para. 15:
In a personal injury action, a trial by a judge and jury is a
presumptive right (see: Cochrane v. Insurance Corp. of British Columbia,
2005 BCCA 399 at para. 22). It is only where the applicant opposing the jury
has satisfied one or more of the exceptions set out in Rule 39(27) that the
jury notice may be struck. The relevant subsections in Rule 39(27) are as
follows:
(27)
Except in cases of defamation, false imprisonment and malicious prosecution, a
party to whom a notice under subrule (26) has been delivered may apply
(a) within 7 days 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 which cannot be made
conveniently with a jury, or
(ii) the issues are of an intricate or complex character
[…]
Then furthermore at para. 27:
[27] Returning to Rule 39(27)(a), the legal test for
striking a jury notice under (i) involves two steps.
[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. Guichon v.
Johnston, [1998] B.C.J. No. 2643 (S.C.), exemplifies this type of analysis.
In that case, the plaintiff was a passenger in the defendants uninsured motor
vehicle, and when it was involved in an accident he allegedly suffered a brain
injury. At para. 23 the court noted firstly that it is not sufficient to state
simply that a jury will be obliged to consider medical or scientific evidence
in order to set the jury notice aside. There were at least three medical
experts involved in the case who collectively administered dozens of tests and
wrote several reports. Master Baker turned to analyze the specific evidence in
these reports that would likely be put to a jury in that case. That evidence
included complex, multi-facetted [sic] and not easily or lightly considered or
understood medical perspectives on brain injuries, as evident in two quotes
from one expert report that Master Baker included by way of illustration:
. . .
Cytotoxic processes (processes causing cell damage) include the release of free
oxygen radicals, particularly the highly reactive hydroxyl radical, lipid
peroxidation of cell membranes, opening of ion channels to influx of calcium,
release of cytokines and metabolism of free fatty acids into highly
vasoreactive substances that may cause vasoconstriction (blood vessel
constriction) and ischemia (reduced oxygen supply to the tissues). Such
processes may also be interruptible by mechanism-specific therapeutic agents
such as lipid antioxidants, calcium channel blockers, and glutamate (i.e., a
neurotransmitter) receptor antagonists. . . .
"Systemic" factors
that may cause "secondary insults" to the injured brain include
hypoxemia (i.e., low blood oxygen concentration) arteriolar hypotension (i.e.,
low pressure within the smaller arterial blood vessels), hypercarbia (i.e., high
blood carbon dioxide concentration), severe hypocarbia (i.e., low blood carbon
dioxide concentration), pyrexia (i.e., fever), hyponatremia (i.e., low blood
sodium concentration), anaemia (i.e., low blood haemoglobin concentration
(haemoglobin is the protein in the red blood cells that carries oxygen), and
diffuse intravascular coagulopathy (i.e., a process in which there is a
derangement in the clotting process).
[30] Given the nature of
that evidence, it was found that a prolonged examination would be necessary.
[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 …
[35]
At para. 31 of her reasons for judgment, Madam Justice Arnold-Bailey
then set out the well-known quotation from former Chief Justice McEachern in Wipfli v. Britten
(1981), 32 B.C.L.R. 343 at 347 (S.C.):
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.
Madam Justice Arnold-Bailey then
states this at para. 32:
[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.
[36]
There is another citation from former Chief Justice McEachern which is
also illustrative of one of the issues before me. It is found in MacDonald
v. Smith, cited in Campbell v. Khan, [1996] B.C.J. No. 2005 at para.
9 (S.C.). In Campbell v. Khan, Mr. Justice Low, as he then was,
stated:
In MacDonald v. Smith, (1983) 48 B.C.L.R. 285,
McEachern, then C.J.S.C., said (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,
particularly after several days of evidence and 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.
On an application such as this the
following considerations also apply:
(a) The chambers judge on
the basis of the evidence before him or her may find or decline to find that
the issues require prolonged examination of documents or accounts, that they
require scientific or local investigation, or that they are of an intricate or
complex character. When he or she makes those findings, he is not at that stage
exercising discretion, but rather making findings of fact on the basis of the
evidence. If after considering the evidence he or she does not make one of
those findings, then there is no ground for granting the order. If on the other
hand the evidence is such that one or more of these findings of fact is made or
should be made, the judge is required to exercise the discretionary
jurisdiction contemplated by the subrule: see Nichols v. Gray (1978), 9
B.C.L.R. 5 (C.A.) at page 14.
(b) While the trial of an
action before a jury that involved a scientific investigation may not be the
most convenient mode of trial, that is not enough to displace the presumptive
right of a litigant who seeks trial by jury: see Patterson v. Rankel,
2001 BCSC 952 at para. 25.
(c) The issue needs to be
considered in the context of the entire case and the other issues involved in
the litigation, rather than in isolation. It is the combination of the issues
which make them sufficiently complex such that the matter should be tried
without a jury: see Gulamani at para. 35.
(d) Modern juries are
sophisticated and in many cases, with the assistance of counsel and the
instructions of the trial judge, will not find the evidence beyond their
ability to comprehend, retain and apply to the case: see MacKinnon v. Ebner,
[1997] B.C.J. No. 364 (S.C.).
(e)
The overriding consideration is whether the case is one appropriate for
a jury such that all parties receive the benefit of a fair trial: Lomax v. Weins,
2003 BCSC 396 at para. 52.
IV DISCUSSION
[37]
I turn first to the plaintiffs submission that the defendant is estopped
from raising any issue prior to the key date, since up until that point in time
he was insisting on his right to have the action tried by a jury.
[38]
I do not accept that submission. I am concerned that the defendant as
recently as mid-June 2012 was insisting on his right to have the trial heard by
a jury and furthermore advised the court to that effect at the trial management
conference of June 20, 2012. At that time his counsel had virtually all of the
experts reports, which both parties were intending to rely on at trial. Some
of those reports, particularly those that were of a highly scientific nature,
as for example the neuroradiologists reports pertaining to the MRI scans and
what could be drawn from them, had been in the defendants counsels possession
for many months.
[39]
The defendant explains his change of position on the basis that
examination of reports and finalizing trial strategy is a process which takes
place over a period of time. Following the trial management conference in June,
the defendant continued to review and analyze the various reports, consider the
intricacy of the issues raised, the effect this may have on the conduct of the
trial, and whether in counsels view and on instructions, it was appropriate
for the trial to be before a jury.
[40]
The conclusion was reached that the trial should not proceed before a
jury. Accordingly, the decision was made not to pay the jury deposit. The
plaintiff then brought his application to extend the time limit for filing a
jury notice. Consistent with what the defendant now believed to be appropriate,
he opposed the application. After the plaintiffs application was granted, the
defendant promptly filed this application.
[41]
Now that this application has been filed, I am of the view it must be
considered on its merits. I have now been provided with the many experts
reports which have been filed. In my capacity as the assigned trial management
and trial judge, I have also for the past few months had an opportunity to
become more familiar with the intricacies of the action, including trial
management issues such as the likely length of the trial, and what will be
required to have the trial take place in a manner that is fair for both
parties.
[42]
The factors which militate in favour of the trial proceeding with a jury
include the following. First of all, there is the plaintiffs presumptive right
to a trial by jury. Secondly, the issue of causation is not as complicating a
factor in this case, as it was found to be on other occasions when a jury
notice was struck. These would include situations where there has been more
than one tort which is before the court, the existence of alleged novus
actus interveniens and matters of the like. Thirdly, the interdependency
claim is not by itself a valid reason for this action not proceeding before a
jury. Such a claim has in the past been heard by a jury.
[43]
What militates against the action proceeding before a jury is the sheer
volume of medical reports, and in many instances, the scientific aspect of the
evidence. I have reviewed many of the medical and other experts reports which
were provided to me in October 2012. As I noted above, they comprise
approximately 475 pages. The reports refer to other reports and assessments. The
neuropsychological reports deal with many different tests, as do the vocational
and functional capacity evaluations.
[44]
I emphasize that what is in the record before me are experts reports,
that is, evidence which, depending on admissibility issues, will be before the
trier of fact. In that regard they are to be distinguished from, as I have
noted, hospital and other records which may well have much less significance or
importance to the trier of fact.
[45]
In my view, there can be little doubt that the issues in this case will
require a prolonged examination of documents or accounts or a scientific or local
investigation. The plaintiff presents two alternative theories, the first being
whether the accident caused an organic brain injury, which is scientifically
complex. The reports of the neuroradiologist attest to this.
[46]
The issue then becomes whether that examination and the issues when
considered as a whole can be made conveniently by the jury. As was noted by
McEachern, C.J.B.C., in Wipfli, 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.
[47]
As was stated by Arnold-Bailey J. in Gulamani at para. 32:
… 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.
[48]
I have reviewed the various authorities to which I was referred by
counsel. They indicate, in my view, that cases such as this which involve
allegation of traumatic brain injury are not, as is submitted by counsel for
the plaintiff, routinely heard by judge with a jury. Whether they are or not
will depend on a close examination of the facts and circumstances in each case.
[49]
While no two cases can be exactly alike, this case, in my view, more
resembles the facts in Guichon v. Johnston, [1998] B.C.J. No. 2643
(S.C.), Patterson v. Rankel, Sjoblom v. Dueck Chevrolet
Oldsmobile Cadillac Ltd., 2006 BCSC 2002, and MacPherson v. Czaban,
2002 BCCA 518.
[50]
The authorities to which I was referred by the plaintiff, including Knauf
v. Chao, 2009 BCCA 605, Lennox v. New Westminster (City),
2011 BCCA 182, and Moskaleva v. Laurie, 2007 BCSC 758, do not, in my
view, involve a scientific investigation or complexity to the same level as in
this case. Moskaleva, for example, although involving similar issues,
did not have the complexity of the medical evidence, including
neuroradiologists, which is present in this case.
[51]
I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii)
have been met. First this case does involve a scientific investigation which
will include a prolonged examination of documents, in particular experts
reports, that cannot conveniently be heard by a jury. Secondly, the issues are
sufficiently intricate and complex that the trial should not proceed with a
jury. Justice would not be done if that were to take place. Accordingly, I
direct that the trial be heard by the trial judge without a jury.
V COSTS
[52]
Although the defendant has been successful in this application, I will
not, in the exercise of my discretion, award him his costs. At the time the
defendant opposed the plaintiffs adjournment application, and furthermore by
the time of the trial management conference of June 20, 2012, he ought to have
been in a position to reach the same conclusion he apparently did shortly
thereafter. The plaintiff and the court, in my view, ought to have been advised
by June 20, 2012, at the latest that the defendant was not intending to have
the case heard by a jury.
(Submissions regarding costs)
[53]
The plaintiff will receive his costs of this application in the cause.
Abrioux
J.