IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140514

Docket: M103290

Registry:
Vancouver

Between:

Cody Franson

Plaintiff

And

Nicholas
Caldarella

Defendant

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

Application
by plaintiff to have the trial heard by judge without a jury

[1]            
The plaintiff applies at a trial management
conference to have the trial in this matter heard without a jury on the grounds
that the issues require prolonged examination of documents, a scientific
investigation, and are of an intricate or complex character.

[2]            
Rule 12-2(9)(b) of the Supreme Court Civil
Rules, BC Reg 168/2009 permits a trial
management judge to make such an order on any of the grounds set out in Rule
12-6(5). The grounds set out there are:

(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 …

[3]            
Rule 12-2(11) provides that at a trial management
conference, a judge must not hear any application for which affidavit evidence
is required. Here, I have relied on the submissions of counsel with reference
to the expert reports to be filed.

Background

[4]            
The plaintiff’s action is for damages arising from
injuries sustained in a motor vehicle accident on July 18, 2008. At that time,
the plaintiff was in the second year of a three-year Entry Level two-way
contract with the National Hockey League (NHL) and the American Hockey League
(AHL), and was in training camp preparing for tryouts for the Nashville
Predators. It is alleged that as a result of the injuries he sustained, the
plaintiff was not able to follow his training program and was unsuccessful in
his bid to gain a spot on the Nashville roster in September 2008 for the
2008-2009 season. Instead he played in the AHL, earning $62,500 instead of NHL
wages of up to $500,000 as well as bonuses. He was successful the following
year and played in 61 NHL games for Nashville in the 2009-2010 season. In 2010,
the plaintiff signed his second contract with the NHL, this time as a
Restricted Free Agent, and he earned a salary of $800,000. In subsequent
contracts, his salary increased to $1.2 and then $2 M.

[5]            
The primary issue in this case relates to the
plaintiff’s claim for loss of income. He says that because he lost the
opportunity to play in the NHL for the 2008-2009 season, he earned
substantially less than he would otherwise have earned in that year. He also
says that this lost year had and continues to have negative financial
consequences on his career, in particular on his ability to negotiate a salary
as a Restricted Free Agent based on a broader body of work within his first
three entry years.

[6]            
This matter is set for a 14 day trial commencing
June 16, 2014. Both parties filed jury notices in January 2013. Recently, on
April 19, 2014, the plaintiff gave notice of his intention to seek an order
striking the jury notice. The timing of this application, while late, is
explained by the recent exchange of expert reports in relation to the basis on
which the plaintiff asserts his income loss.

Plaintiff’s submission

[7]            
The plaintiff submitted that any consideration
of the issues in this case will require the trier of fact to have an
understanding of the industry-specific framework for the compensation of hockey
players in the NHL.  The compensation of hockey players is governed in part by
the Standard Players Contract (SPC) and the Collective Bargaining Agreement
(CBA) between the NHL and the National Hockey League Players’ Association. The
plaintiff says that the CBA is a voluminous and complex document, with
provisions that include specialized concepts such as Entry Level Contracts,
Restricted and Unrestricted free agency, salary cap and waiver rules and other
matters. More importantly, there are many technical considerations that
determine which players are selected and how they are to be compensated.
Professional hockey managers and coaches evaluate players based on numerous
factors that include statistical analyses of performance, comparisons with
other players and subjective assessments of skills, attributes, work ethic and
character. Expert evidence will be led about the technical details of the CBA
and the SPC and the various ways in which the plaintiff’s injuries impacted his
rights under these agreements, as well as the plaintiff’s performance as a
hockey player and how his compensation compares to other similar players.

[8]            
All of this, it is submitted, makes this case
complex and unsuitable for a jury.

[9]            
The plaintiff also submitted that there are also
unique physiological, medical, mental and emotional issues confronting hockey
players that require understanding, and the medical issues become more complex
when considered with other factors and contingencies. However, in oral argument
he relied only on the issues related to the claim for loss of income.

Defendant’s submission

[10]        
The defendant opposed the application on the
basis that the issues in this case are not complex but in fact are relatively
simple for a jury to understand. He characterized the issues as (1) whether the
injuries sustained in the accident impaired the plaintiff’s performance at
training camp in the summer of 2008, and if so to what extent; (2) whether
absent the accident, the plaintiff would have made the team roster and played
for the Nashville Predators in the 2008-2009 season; and (3) if yes, what
pecuniary damages flow from this, past and future.

[11]        
The defendant says that the first issue will
require a consideration of the plaintiff’s evidence as to his symptoms and the
medical evidence, the second issue will involve a consideration of the evidence
of lay witnesses and the expert reports, and none of this evidence is too
intricate or complex for a jury. On the issue of damages, the defendant says
that the financial consequences of the 2008-2009 season are easily quantifiable
and clearly explained by the expert, and the relevant provisions of the
contracts are few in number, not in dispute and can be explained and easily
understood.

Analysis

[12]        
The general principles that underlie an
application to strike a jury notice are well known. The right to trial by jury
is a substantive right of which a party ought not to be deprived except for
cogent reasons, and the applicant has the burden of establishing that the trial
should be heard by a judge alone. If the court determines one or more of the
three factual bases as set out in Rule 12-6(5) have been established, then it
has a broad discretion upon which to grant or refuse the application: MacKinnon
v Ebner, [1997] BCJ No 364 (SC); Reischer v Love, 2005 BCSC 1352; Sartore
v Beckley, 2002 BCSC 21; Lomax v Weins, 2003 BCSC 396; Nichols v
Gray, [1978] 9 BCLR 5 (CA).

[13]        
If the issues require a prolonged examination of
documents or scientific investigation, the court must determine if this can be
done conveniently with a jury. “Convenience” relates to the proper conduct of
the trial and matters such as whether the jury is capable of understanding the
evidence and retaining that understanding for the length of the trial: Wipfli
v Britten, [1981] 32 BCLR 343 at para. 26 (SC); Mewhort v Frimer,
[1980] BCJ No 1374 at para. 6 (SC); Reischer at paras. 50-51; Lomax at
paras. 32-39. Where the issues are intricate or complex, the court has a
broader discretion in deciding whether the trial should be heard by a judge
without a jury: Esposito v Abbotsford (City), 2003 BCSC 1787 at para. 4;
Nichols at para. 45 per Lambert J.A. Ultimately, the goal is to
ensure that both parties receive a fair trial: Lomax at para. 52.

[14]        
The fact that there is medical, economic and
other technical evidence does not necessarily give rise to a “scientific”
investigation or render the issues intricate or complex (Reischer at
para. 53; Harder v Nikolov, 2001 BCSC 1101 at para. 25) but a conflict
in medical or other technical evidence may give rise to such an investigation (Jackson
v Yusishen, 2013 BCSC 1982 at para. 9).

[15]        
That said, it has been recognized that juries
are capable of understanding, retaining and analyzing expert evidence about
scientific or technical matters. In MacKinnon, MacKenzie J. noted (at
para. 24):

…[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. 
After all, a judge is not an expert in such matters and would experience the
same difficulties. 

[16]        
It has also been recognized that juries are also
capable of determining the evidentiary foundation for an award of damages: Cliff
v Dahl, 2012 BCSC 276 at para. 40.

[17]        
I have considered the cases cited by counsel,
which are helpful to some extent, but the issue of whether to strike a jury
notice is largely fact driven. Many of the cases where jury notices were struck
involved complex medical negligence (such as Wipfli; Maki v Abrahams,
[1996] BCJ No 54 (SC); Brain v Craven, 2004 BCSC 67), multiple liability
issues (MacDonald v Smith, [1983] 48 BCLR 285 (SC)) or damage
assessments of much more complexity than that in this case (Lomax). I
have also considered the submissions of counsel with reference to the contents
of the expert reports to be filed.

[18]        
In my view, the issues in this case will not
require a prolonged examination of documents. Although the SPC and CBA are
substantial documents, few provisions will be referenced, and the relevant
“system considerations” (which address the Entry Level System, Age of Players,
Free Agency and Salary Arbitration) are not in dispute. These concepts can be
explained by the experts with little controversy and are matters with which
members of a jury may be familiar.

[19]        
I agree with the plaintiff that the issues will
require “scientific” examination in the sense of the very technical aspects of
how hockey players are evaluated for the purpose of determining salary and
which provide some of the foundation for the expert opinion evidence. However,
I am not persuaded that this 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 the right to have the matter heard by a jury. Other
than the plaintiff’s profession as a hockey player, there is nothing unusual
about this case.

[20]        
The plaintiff did not dispute the defendant‘s
general characterization of the issues as (1) whether the injuries sustained in
the accident impaired the plaintiff’s performance at training camp in the
summer of 2008, and if so to what extent; (2) whether absent the accident, the
plaintiff would have made the team roster and played for the Nashville
Predators in the 2008-2009 season (the first two dealing with causation of
damage); and (3) if yes, what pecuniary damages flow from this, past and
future. The plaintiff says that the financial effects will continue until at
least 2015, when he concludes his last year as a Restricted Free Agent.

[21]        
The essence of the plaintiff’s position is that
issues (2) and (3) will require answers to questions which rely on complex
technical evidence. The main questions as I understand them are:

(a)
What were the chances that the plaintiff would have played any games for
Nashville in the 2008-2009 season?

(b)
If his chances were good, how many games would he have played?

(c)
If he had played a certain number of games in that season, would he have been
able to negotiate more favourable terms in his contract in subsequent years as
a Restricted Free Agent?

[22]        
A determination of these questions will require
an assessment of the evidence of the plaintiff’s expert, Ross Gurney, and the
criticisms of his approach by the defendant’s expert, Professor Joseph Weiler.
With respect to the first question, Mr. Gurney assumes that the plaintiff was
expected to make the NHL team in 2008. Prof. Weiler challenges this assumption
by introducing information about the nature of the competition he was facing at
the time, the progress of his on-ice performance, and historical data showing
patterns of players selected showing the possible relevance of age and
experience, as well as the team’s other salary commitments. I do not see this
evidence as being too complex for a jury to understand and retain.

[23]        
On the second question, Mr. Gurney opines that
the plaintiff had the potential to have played up to 82 NHL games in the
2008-2009 season, basing this on an analysis of 23 defensemen in the same age
range with six comparable criteria (number of games played, points, points per
game, points per time on ice, time on ice, and time on ice per game). Prof.
Weiler challenges the conclusion that the plaintiff would have played 82 games,
opines that use of six criteria is “under-inclusive” and suggests that broader
criteria used by salary arbitrators should guide the analysis (which include
things like power play minutes per game, short hand minutes per game, hits and
blocks per game). Although this evidence is very technical, I do not agree with
the plaintiff that a jury will be unable to understand it. It may be “hockey
science” but the concepts are the kind that can be explained by the expert
witnesses as well as witnesses from the NHL itself.

[24]        
The third question will involve an understanding
of the system considerations of Entry Level contracts, Age of Players and Free
Agency, and how a player’s entry level years may affect his bargaining position
when he enters the Restricted Free Agency system. As I indicated before, it is
my view that these considerations can be understood when explained by the
experts.

[25]        
The foundation of Mr. Gurney’s opinion on this
question is, however, more detailed than this. He says that the plaintiff would
have gone into the RFA system with a much broader body of work had he
accumulated up to 82 more games as a second year professional player combined
with the number of games he actually played in this third year. His methodology
includes a contractual analysis of 23 NHL defensemen in the same age range who
entered the 2010-2011 season and had played between 60 and 164 games in
previous seasons. He opines as to the amount the plaintiff would have earned in
contracts within the RFA system had he been able to accumulate this higher
number of games. Comparing the plaintiff’s salaries with those of ten other top
defensemen (based on their total points), he also opines that the plaintiff
fell behind the market and his financial trajectory within the RFA system was
delayed. Again, his methodology is challenged by Prof. Weiler on the basis of
his selection of comparable defensemen and the limited criteria used,
particularly Mr. Gurney’s emphasis on total points as the single criterion for
comparing the plaintiff’s level of performance to the other top ten defensemen
in the NHL.

[26]        
The plaintiff submitted that the trier of fact
will be required to understand the methodology, assess it, and determine which
statistics and methodology is appropriate in order to calculate these damages.
I do not disagree that the trier of fact will have to understand the
methodology used by Mr. Gurney but I question whether it will be necessary to determine
another appropriate methodology and apply that. These kinds of hypothetical
damages in circumstances of uncertainty are not normally assessed by way of a
mathematical calculation. The expert evidence is presented as a tool to assist
the trier of fact in its assessment. In my view, a jury will be capable of
understanding Mr. Gurney’s methodology when it is properly explained and it
will also be capable of assessing the criticisms of that methodology by Prof.
Weiler.

[27]        
It is my view that a jury is capable of
assessing this kind of evidence and determining the issues arising from it,
including the use of hypotheticals and contingencies, with proper direction.

[28]        
Moreover, this will not be in inordinately long
trial, set for up to 14 days, a time estimate that is reasonable given the
number of witnesses and issues to be addressed. In my opinion, a jury will be
able to understand the evidence and retain that understanding for the length of
the trial.

[29]        
For all of these reasons, the plaintiff’s application
is dismissed.

“Fisher, J.”