IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131127

Docket: S080395

Registry:
Vancouver

Between:

Theodore Laktin

Plaintiff

And

City of Vancouver,
Vancouver Police Department, Constable Coulthard,

Sergeant Clee,
Constable Dujmovic

and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Pearlman

Ruling on Defendants’ Application to Strike Jury
Notice

INTRODUCTION

[1]            
On the first day of this 25-day trial set for hearing with a jury, the
defendants applied for an order that the action be tried by judge alone,
pursuant to Rule 12-6(5)(a)(ii).

[2]            
In this action, the plaintiff Theodore Laktin claims against the
defendant City of Vancouver and the defendants Constable Coulthard, Sergeant
Clee, and Constable Dujmovic for damages for assault and battery and
negligence.  On January 21, 2006, while the three defendant police officers
were responding to a call that the plaintiff might be suicidal, Constable
Coulthard shot the plaintiff, rendering him paraplegic.  Mr. Laktin claims
against the defendants for catastrophic physical injuries, and for
psychological injuries, including post-traumatic stress disorder and
depression.  The defendants say that the shooting was a justified and reasonable
use of force in exigent circumstances where the plaintiff, within seconds of
the officers’ arrival at the door to his apartment, approached them holding a
large knife.

[3]            
After hearing submissions, I dismissed the defendants’ application to
have the trial heard by judge alone, with written Reasons to follow.  These are
my Reasons.

DISCUSSION AND ANALYSIS

(a)      The Timing of this Application

[4]            
Rule 12-6(5)(a)(ii) permits a party to apply within seven days after
service of a Notice Requiring Trial By Jury for an order that the trial be
heard without a jury on the ground that “the issues are of an intricate or
complex character”.

[5]            
The plaintiff raised a preliminary objection that the defendants brought
this application out of time, and that the late hearing of the application
prejudiced the plaintiff by requiring him to divert resources from preparation
for the commencement of a 25-day jury trial to the 11th-hour argument of a
motion about the mode of trial.

[6]            
The plaintiff commenced this action on January 18, 2008.  The trial was
originally set down for 15 days commencing June 11, 2012.  The plaintiff filed
and served a Notice Requiring Trial By Jury on February 1, 2011.  On February
9, 2011, counsel for the defendants served a Notice of Application for the
trial to be heard without a jury, accompanied by a letter advising that:

I
do not require a Response to the application at this time as I am planning to
have the application to strike the jury heard after full discovery has been
made between the parties and expert reports have been exchanged.

[7]            
The original trial date was adjourned by consent, and the trial was
initially rescheduled for January 27, 2014.

[8]            
At a Case Planning Conference held on October 24, 2012, the trial was
rescheduled to commence on November 18, 2013.

[9]            
The plaintiff filed two further Notices Requiring Trial by Jury.

[10]        
The parties completed examinations for discovery by October 5, 2011. 
Expert reports were exchanged in August 2013.  On October 3, 2013, the
plaintiff paid the initial jury fee deposit.

[11]        
Counsel appeared before Master Scarth for a Trial Management Conference
on October 17, 2013.  Defence counsel did not give any indication at the Trial
Management Conference that they intended to proceed with their application to
strike the jury.

[12]        
On November 4, 2013, the defendants gave notice to plaintiff’s counsel
of their intention to bring their application to strike the jury on November
18, 2013, the first day of trial.

[13]        
Because the panel of potential jurors had already been summoned for jury
selection on November 18, 2013, the court proceeded with jury selection, and
then sent the jurors away for the balance of the day while it heard the
defendants’ application.

[14]        
The defendants have offered no satisfactory explanation of why this
application could not have been brought earlier, for example following the
exchange of expert reports in August 2013.

[15]        
This application could and should have been brought well in advance of
the first day of trial.  Nonetheless, I have concluded this application should
be heard and determined on the merits.  Counsel for the plaintiff had 14 days’
notice of the hearing and was prepared to respond to the defendants’ application
when it came on for hearing.  Further, as the trial judge, I have an
independent obligation to ensure that the trial can be fairly heard by a jury: ICBC
v. Suska, [2008] B.C.J. No. 1902 (S.C.) at para. 13.

(b)      Position of the Defendants

[16]        
The defendants submit that this case raises multiple questions of fact
and law, which, when considered cumulatively, are of an intricate and complex
character, so as to render the trial unsuitable for a jury.

[17]        
The plaintiff claims damages for physical and psychological injuries he
suffered as a result of being shot three times by one of the three defendant
police officers who attended at this home on January 21, 2006.  Mr. Laktin
alleges that the defendant police officers committed the torts of assault,
battery and negligence.  The plaintiff also claims that the police officers
acted maliciously and were grossly negligent.

[18]        
In addition, the plaintiff claims that the City of Vancouver is liable
under s. 20 of the Police Act, R.S.B.C. 1996, c. 367 for the torts of
the defendant police officers.  Further, the plaintiff alleges that the
defendant City of Vancouver is directly liable to him by virtue of various
alleged negligent acts or omissions on its part relating to the selection,
hiring and training of the defendant police officers.

[19]        
Mt. Laktin claims against all of the defendants for non-pecuniary
damages, special damages, costs of future care, loss of earning capacity,
aggravated and punitive damages.

[20]        
The defendants acknowledge that the issues of whether the shooting
constituted a battery, and whether the common law defence of self defence
applied in the circumstances of this case are relatively straight forward. 
However, counsel for the defendants argues that the defendant police officers
also have defences available to them under the provisions of ss. 25, 27, 34(2)
and 37 of the Criminal Code in force at the time of the shooting, which
will require the court to provide the jury with complex, and potentially
confusing instructions on the law.  For example, the defence submits that the
jury, when considering whether the police were authorized to use force under s.
25(1) of the Criminal Code, will have to determine whether Constable
Coulthard had reasonable grounds to believe that he was authorized to use force
and whether or not the officer used more force than was necessary.  However,
defence counsel submits that a different analysis will be required in
considering the defence of self defence under s. 34(2) of the Criminal Code,
where the defendants say the following issues will arise:

(a)      Did the police officer reasonably believe
that the plaintiff’s actions were an unlawful assault against him?

(b)      Did the police officer have a reasonable apprehension
of death or grievous bodily harm from the unlawful assault against him?

(c)      Did
the police officer reasonably believe that he had to use force causing death or
grievous bodily harm in order to protect him from death or grievous bodily harm
from an unlawful assault?

[21]        
The defendants say that the defences to battery available under the Criminal
Code are complex, and raise questions of law, questions of mixed fact and
law, and  questions of fact.

[22]        
The defendants also plead the Negligence Act, R.S.B.C.
1996, c. 333, and raise the defence of implied consent to the battery.  They
intend to argue that the shooting was the likely outcome of Mr. Laktin’s
assault on the police officers or his wife, and that the plaintiff must be
taken to have known that in committing that assault he might be shot by the
police.

[23]        
According to the defendants, this case has yet another level of
complexity relating to the defence of ex turpi causa, which they submit
applies to the plaintiff’s claim of battery.  The defendants intend to argue
that the principle of ex turpi causa applies to prevent Mr. Laktin from
profiting from his own wrongdoing − the assault on the police officers or
his wife − which the defendants maintain resulted in his injury.

[24]        
The defendants also argue that the expert reports to be adduced in this
case add to the intricate or complex character of this trial.  The plaintiff
has delivered reports from four medical and rehabilitation experts, as well as
the report of an economist.  The defendants have delivered reports from eleven
experts, who include specialists in various fields of medicine, an economist,
and experts on the use of force in policing.  The plaintiff has objected to the
admissibility of the defendants’ expert reports concerning the use of force. 
The defendants submit that if these reports are admitted, they will require
careful consideration by the finder of fact, as will all of the expert reports
tendered by the parties.

[25]        
Counsel for the defendants also argues that the plaintiff’s claim for
punitive damages will require a careful application of the test for the award
of such damages as outlined by the Supreme Court of Canada in Vorvis v.
Pilot Insurance Co., 2002 SCC 18.

[26]        
Finally, the charge to the jury would have to take into account the
shifting of the burden of proof between the plaintiff and the defendants. 
While the plaintiff bears the burden of proof concerning battery, negligence,
gross negligence, malice and damages, the onus will shift to the defendants to
prove that the use of force was justified, and that there was contributory
negligence on the part of the plaintiff.

(c)      Applicable Legal Principles

[27]        
The plaintiff has a presumptive right to a trial by jury.  The
defendants bear the heavy onus of demonstrating that there are cogent reasons
for depriving him of that right: Cliff v. Dahl, 2012 BCSC 276 at para.
28.

[28]        
On an application for an order that the trial proceed without a jury,
the threshold question is whether the material before the court provides a
factual foundation for its exercise of discretion.  Whether there are issues of
an intricate or complex nature involves findings of fact which will inform the
court’s exercise of discretion.  Once a factual foundation is established, the
court’s decision on whether to strike the jury notice is discretionary.  The
focus of the inquiry is then on whether in the opinion of the judge, the jury
is capable of understanding and retaining that understanding of the evidence
throughout the trial: MacPherson v. Czabin, 2002 BCCA 518 at paras.
16-17.

[29]        
In determining whether “the issues are of an intricate or complex
character”, the court must consider those issues in the context of the case as
a whole, rather than in isolation: Gulamani v. Chandra, 2009 BCSC 1042
at para. 35.

[30]        
The combination or multiplicity of issues may make the issues
sufficiently intricate or complex in character to trigger the court’s
jurisdiction to strike the jury notice: MacDonald v. Smith (1983), 48
B.C.L.R. 285 at paras. 18-19 (S.C.).  The jury notice will be struck where
multiple issues of fact and law make it all but impossible for the judge to
charge the jury: Skretting Canada Inc. v. Westaqua Commodity Group Ltd.
(2011),  2 C.P.C. (7th) 127 at para. 77.

[31]        
The court’s exercise of its discretion to strike a jury notice will
depend on the particular facts and circumstances of each case and its
assessment of such factors as the specific issues raised by the pleadings, the
presence of multiple parties, or the trial of multiple actions: Dahl, at
para. 44.

(d)      Application of Legal Principles

[32]        
I will begin by considering whether the defendants have established that
the volume or nature of the expert opinion evidence raises issues of an
intricate or complex character that may render this case unsuitable for trial
by jury.  I have read a number of the medical reports delivered by the
plaintiff and by the defendants.  Those reports clearly set out the facts and
assumptions upon which they are based and are not difficult to comprehend. 
Defence counsel did not identify specific reports, or portions of the expert
opinion evidence that would be too complicated for the jury to understand
through the trial.  Accordingly, the defendants have not established a factual
foundation for this branch of their application to have this case tried by
judge alone.  I also note that two of the plaintiff’s treating specialists,
Drs. Paquette and Negraeff, and four of the defence experts, Drs. Coupland,
Katz, Zaki and DeForge, will not be required to attend for cross-examination. 
That suggests that much of the medical evidence will not be controverted, and
that this jury will not be called upon to assess and resolve numerous conflicts
in the medical evidence.  Further, as MacKenzie J. (as she then was), observed
in MacKinnon v. Debner, [1997] B.C.J. No. 364 (S.C.) at paras. 24 and
26:

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

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

[33]        
The plaintiff and the defendants will each call economists who will
provide opinion evidence relating to loss of earning capacity and costs of
future care.  Juries are regularly called upon to consider actuarial evidence
and to assess damages for future loss of earning capacity and costs of future
care, often in cases involving catastrophic injuries.  The defence has not
identified any portions of the expert opinion evidence that would support an
assertion that this case raises issues relating to the assessment of damages
for costs of future care or loss of earning capacity that are too difficult for
the jury to comprehend.

[34]        
Finding the facts relating to the plaintiff’s income earning capacity
before and after the shooting incident and determining the evidentiary basis
for any award of damages for future loss of earning capacity are tasks that a
jury is well suited to perform: Dahl at para. 40.

[35]        
This is not a trial that involves multiple accidents or actions, or that
raises complex issues of causation of the plaintiff’s physical injuries. The
jury may have to determine the extent to which the  psychological injuries
claimed by the plaintiff result from a pre-existing condition rather than the
incident of January 21, 2006. That will involve the jury making findings of
fact that are well within the capabilities of a modern jury.

[36]        
The defendants have identified numerous issues of fact and law relating to
issues of liability, the statutory and common law defences to the plaintiff’s
claim of battery available to the defendants, the apportionment of fault, and
damages.  It is the responsibility of the trial judge to instruct the jury
concerning the legal principles that will apply to the facts as found by the
jury.  The court will instruct the jury on the application and interpretation
of the relevant provisions of the Police Act and the Criminal Code.

[37]        
The duties of care owed by the defendants to the plaintiff are a matter
of law for determination by the trial judge rather than the jury. It will be
the responsibility of the trial judge to determine whether the City of
Vancouver owed a duty of care to the plaintiff, and whether, as a matter of
law, there is any basis for the plaintiff’s claim against the City, other than
its liability under s. 20 of the Police Act for the torts of municipal
police officers.

[38]        
Whether, as a matter of law, the application of the doctrine of ex
turpi causa would be justified in the circumstances of this case is also a
matter for the trial judge.

[39]        
 The defence correctly submits that the provisions of ss. 34 and 37 of
the Criminal Code in force at the time of the incident that gave rise to
this action add a level of complexity to this trial.   However, juries in
criminal cases have been frequently called upon to apply those provisions, and with
the assistance of instructions from the trial judge, have done so. I see no
reason why a civil jury, properly instructed, cannot perform a similar task.

[40]        
In my view, finding the facts regarding what occurred in the sequence of
events that culminated in Constable Coulthard shooting the plaintiff, and
determining whether the force used by the police was justified in all of the
circumstances are tasks well suited to a jury composed of eight members of the
community.

(e)      Conclusion

[41]        
I am not persuaded on the facts of this case that the issues are of an
intricate or complex nature that would warrant striking the jury.  The
defendants’ application for an order that the trial proceed without a jury is
dismissed.

“PEARLMAN
J.”