IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120426

Docket: M085239

Registry: Vancouver

Between:

Jason Walker

Plaintiff

And:

John Doe and Insurance Corporation of
British Columbia

Defendants

Before: The Honourable Mr. Justice
Voith

Oral Ruling

[1]            
THE COURT: The two issues addressed in these
reasons arose late yesterday afternoon while counsel and I were reviewing both
my draft charge to the jury and the draft questions that they had prepared.

[2]            
The first issue
relates to whether two of the draft questions, questions 8 and 9, should
properly go to the jury. The second relates to the propriety of counsel for the
plaintiff using diagrams or charts of a future wage loss and future care
calculation, as well as certain other bar graphs that deal with time lines, in
his closing submissions to the jury later today.

Question One: Should Draft Questions 8 and 9 be put to the Jury?

[3]            
The backdrop to
this issue is important. The plaintiff in this case says that he was struck by
a tire from the vehicle of an unknown motorist while riding his motorcycle. Thus,
s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 is
engaged. It is common ground that s. 24 establishes a series of specific
requirements that a plaintiff must satisfy before he or she can succeed against
ICBC as a nominal defendant. These requirements are reflected in several of the
questions that are going to the jury and in respect of which there is no
dispute.

[4]            
It is also common
ground that s. 24 requires various types of deductions, including, for
example, that "insured claims" be deducted from the sums the
plaintiff would otherwise receive. From the outset there has been disagreement
between the parties about what moneys, which the plaintiff has received from
different sources, should properly be deducted from any sum the plaintiff might
receive at this trial.

[5]            
There has also
been disagreement about whether I or the jury, after it has been properly
instructed, should make these deductions. There are still further issues about,
for example, whether the jury should be instructed about the upper limits on
recovery that are established by s. 24. None of these issues, I am
advised, are expressly addressed by the relevant case law. To the credit of both
counsel, they have been able to prepare a written agreement on many of these
issues. That agreement is Exhibit 51 at trial. Paragraphs 1-4 of Exhibit 51
provide:

1.         The parties agree that the Learned Trial Judge, as
opposed to the jury, will deal with the s. 24 (and s. 106
Regulations) deductions to be made, if any, from any award that the jury may
make concerning this matter.

2.         The procedure to be used will be that the evidence
that the parties determine is needed for the judge will be presented to the
court, either in voir dire or normal evidence, that exhibits will be marked,
and either be put in the hands of the jury or not, on the reference of the
Learned Trial Judge, and the Judge will determine the deductions to be made
based on that evidence.

3.         Concerning Manulife, although some evidence has
been submitted as an exhibit to the trial concerning the Manulife contract,
Manulife has not provided a full copy of the relevant contract to date. A
representative of Manulife is to attend the trial on Tuesday, April 24, but has
advised counsel that he does not yet have a copy of the full contract, but can
obtain one in due course.

4.         The parties agree that
the Manulife representative can give his evidence in a voir dire and provide
his evidence to the court, such as is determined to be admissible, and that
evidence, together with any contract that can be provided to the court in due
course, will be used by the Learned Trial Judge in determining s. 24 (and
s. 106) deductions. The parties will not object to one or the other
parties introducing the Manulife contract after the jury has been discharged,
subject to the usual objections as to authenticity.

[6]            
The central
deduction that has been at issue relates to the long-term disability payments that
the plaintiff has received from Manulife since shortly after the accident.

[7]            
By virtue of the
foregoing agreement, the parties called Mr. Lize, a
senior claims consultant with Manulife, in a voir dire. Mr. Lize
was called to give evidence about how Manulife deals with various issues that
arise from Manulife’s long-term disability policies. Mr. Lize was not
familiar with the particular disability contract or policy at issue. Importantly,
that contract was not produced during the trial, nor do I have it at this point,
though counsel for the plaintiff has endeavoured to obtain it for some time.

[8]            
Mr. Lize
confirmed that he would provide a copy of the particular contract in issue to
the parties, and further confirmed that he would address a series of questions
and issues that would be sent to him by counsel, which he was not able to
respond to directly during his evidence. All of this information was then to be
made available to me so that I could, at some point in the near future, address
the issues raised in Exhibit 51.

[9]            
The present
concern derives, as I have said, from draft questions 8 and 9, which counsel
for ICBC argues should be put to the jury at this time. Those two questions
respectively provide:

8.         What is the period of time in the future, if any,
is it a real possibility that the plaintiff will be totally disabled from
working at any job for which he is reasonably qualified by training, education
or experience, from today until the end of his working life?

Answer:           Period of future total disability
___________

9.         If you answered Question 8 with a number larger
than NIL, but not a number that takes him to the end of his working life, to
what degree or extent, if any, is it a real possibility that the plaintiff will
be totally disabled from working at any job for which he is reasonably
qualified by training, education or experience, from beyond the period stated
in Question 8, until the end of his working life?

Answer:           Period of time:   __________

Percentage:   ____________%

[10]        
Counsel for ICBC further
argues that I can instruct the jury on what constitutes a "permanent
disability" or a “total disability” on the basis of the language contained
in an information booklet that is provided to employees who are covered by the
Manulife disability policy in question. That information booklet, under the
heading "Total Disability", states:

You
are considered totally disabled, during the first 24 months in which you
receive benefits, if you are unable to perform any and every duty of your
occupation. After this period you are considered totally disabled if you are
unable to perform any and every duty of any occupation for which you are
reasonably qualified by training, education or experience.

In
order to determine eligibility for benefits during the first 24 months, you may
be required to be examined by a medical doctor chosen by the Plan or the
insurance company. In order for benefits to continue beyond the first 24-month
period, you may again be required to be examined by a medical doctor chosen by
the Plan or the insurance company.

To
remain qualified for benefits, you must be under the regular care and personal
attendance of a licensed doctor of medicine. Statements of continuing
disability signed by your attending physician will be required on a regular
basis.

[11]        
The fact that I
had understood from my review of those portions of Exhibit 51 that I have
referred to, that I, rather than the jury, was to deal with the substance of
draft questions 8 and 9 is not the issue. Nor, at this point, is the issue
whether as a matter of law the substance of draft questions 8 and 9 would
normally go to the jury.

[12]        
The central
question at this point is whether I could, in concept, properly instruct the
jury with the information I presently have at hand. I do not consider that I
can.

[13]        
Both counsel agree
that what constitutes a "permanent or total disability" will be
determined by the terms of the contract in question. The term "permanent or
total disability" will have a precise definition. I do not have the
contract in question and do not believe that an information booklet constitutes
an adequate substitute.

[14]        
In Kim Lewison, The
Interpretation of Contracts, 4th ed. (London: Sweet & Maxwell Limited,
2007) at 119, the author states:

The
division between what is a a question of law and what is a question of fact is
extremely difficult to draw. However, it has been said on many occasions that
the proper interpretation of a contract is a question of law. Thus it is for
the judge to interpret the contract even when he is assisted by a jury and the
jury is bound to accept the judge’s direction upon the construction of the
contract. Indeed, it is largely because trials were heard by juries that the
construction of a contract is classified as a question of law at all. …

[15]        
Thereafter, at 120,
he states:

Since
the proper construction of a written contract is a question of law, the court
is not bound by concessions about its meaning made by counsel in the course of
argument. …

[16]        
Still further, at
121-125, he confirms that the process of construction is a two-step process and,
at 121, states:

The process of
construction, therefore, consists of at least two elements, one element of
which is factual, and the other legal. The two stage process was summarized by
Lindley L.J. in Chatenay v Brazilian Submarine Telegraph Co Limited as
follows:

“The
expression ‘construction’, as applied to a document, at all events as used by
English lawyers, includes two things: first the meaning of the words; and
secondly their legal effect, or the effect to be given to them. The meaning of
the words I take to be a question of fact in all cases, whether we are dealing
with a poem or a legal document. The effect of the words is a question of law.

Thus in a
criminal trial it is the function of the jury to rule on the construction of a
contract, rather than the function of a jury to decide what it means as a
question of fact. However, in a libel action although the question whether
words are capable of bearing a defamatory meaning is a question of law of
the judge, whether they do bear such a meaning is a question of fact for
the jury.

[emphasis
in original]

[17]        
In this case,
absent access to the contract in question, I am unable to properly perform the
functions that fall to me. I am unable, assuming without deciding that the
substance of questions 8 and 9 does fall to the jury, to properly instruct the
jury at this time. I believe that only with the contract in question in hand
will I be able to address questions 8 and 9, and I will do so when counsel and
I return to address the further matters that are raised in Exhibit 51.

[18]        
While this
resolution of the defendant’s present objection may not be optimal, it is much
preferable to providing an instruction to the jury that is inaccurate or does
not have an adequate basis.

Question Two: Visual Aids

[19]        
Counsel for the
plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or
time line that explains the period of time that each of past wage loss, future
wage loss, and the other heads of damage being claimed cover; and (b) visually
depict how a future wage loss claim or future care claim should be calculated
from the relevant tables that are found in the Civil Jury Instructions.

[20]        
Counsel for the
defendant argues that the use of such visual aids or summaries is not
permissible in a closing submission. This position was advanced in absolute
terms and would be unchanged even if, for example, counsel for the plaintiff
provided the particular graph or calculation to counsel for the defendant in
advance of its use. I was not provided with any case law on this point by
either party.

[21]        
I do not, in the
main, accept the submission of counsel for the defendant. I have been unable,
in the time available to me, to find any civil cases that deal with the matter.
In the criminal context, the leading case is R. v. Bengert (1980), 53 C.C.C.
(2d) 481, 15 C.R. (3d) 114 (B.C.C.A.). The relevant passages are found at 517-521.

[22]        
In Bengert,
as part of its closing address, the Crown sought to give the jury a
chronological chart that it had prepared. The chart was approximately 30 pages
in length. The decision indicates that the chart was marked as an exhibit at
trial, but it appears that this must have been done just before the closing, as
the chart is described as having been inspired by a similar chart used by
counsel for one of the accused after the Crown had completed its evidence.

[23]        
The defence
objected to the Crown’s request that the jury be permitted to take the chart
into the jury room. The trial judge rejected this argument, emphasizing its
illogic — given that the jury could simply transcribe the chronology in their
own notes and bring that summary into the jury room — and the fact that such
aids would be helpful given the length and complexity of the trial.

[24]        
The trial judge
also pointed out that defence counsel had the right to introduce their own
chronologies to the jury. So long as the jury was properly cautioned that the
chronology was not itself evidence, the trial judge had no difficulty with its
introduction.

[25]        
The Court of
Appeal upheld the trial judge’s decision and concluded, at para. 160:

…
In a long and complex trial of this nature, the members of the jury were
entitled to anything that would assist them in dealing with the evidence
reasonably, intelligently and expeditiously.

[26]        
Subsequent to Bengert,
the Court of Appeal decided R. v. Fimognairi, [1983] B.C.J. No. 576
(C.A.). The relevant passages are found at paras. 48-60. Before the
Crown’s closing address to the jury, a written summary of the evidence, which
had been prepared over the course of the trial by the Crown, was furnished to
each juror, as well to defence counsel. The decision does not state whether the
summary was made an exhibit. The jurors were permitted to take the summary with
them into the jury room.

[27]        
On appeal, defence
counsel argued that the Crown summary went far beyond what was permitted in Bengert,
as it contained commentary from the Crown on the evidence. Nevertheless, the
Court of Appeal upheld the trial judge’s decision. Hinkson J.A., for the court,
felt that the jury had been appropriately cautioned on the use to be made of
the summary and said, at para. 54:

[54]      I
remain of the view expressed in Bengert. In a long and complex
conspiracy trial, it is a matter for the exercise of discretion by the trial
judge as to what form of summary may be permitted, to assist the jury in
dealing with the evidence. In the present case I am not persuaded that the
trial judge erred in permitting the use of the Crown evidence summary.

[28]        
The court also
rejected the argument of defence counsel that inaccuracies in the summary that
had been raised and corrected should have been corrected in the jurors’ written
summaries before they were taken into the jury room. Further, they stated that while
it is desirable that defence counsel see any summary before it is handed to the
jury, this too is within the trial judge’s discretion.

[29]        
More recently, in R.
v. Basi, 2010 BCSC 713, MacKenzie A.C.J.S.C., as she then was, confirmed
the continued application of Bengert and Fimognairi. The case
concerned the distribution of a chart and a binder to each juror by the Crown
before its opening address. Thus, the issue arose in a somewhat different
context than in the other cases. Madam Justice MacKenzie emphasized both that the
chart was not evidence and the importance of an appropriate instruction to the
jury. At para. 9, she said:

[9]        Particularly
in long or complex cases, the trial judge has discretion to permit summaries or
aids to be given to juries to assist them in dealing with the evidence
reasonably, intelligently and expeditiously:  R. v. Bengert (1980), 53
C.C.C. (2d) 481 (B.C.C.A.); R. v. Fimognairi, [1983] B.C.J. No. 576
(C.A.) (QL). I observe, as well, that the Canadian Judicial Council’s model
jury instructions and Watt’s Manual of Criminal Jury Instructions
(Toronto: Thomson Carswell, 2005) contemplate that charts and summaries may be
given to juries, as both have model instructions on that topic.

[30]        
Some of the limits
of the principles expressed in Bengert can be seen in the recent
decision of R. v. Steele, 2010 BCCA 125. That case dealt with enlarged
photos that the defence sought to put before the jury. The trial judge instead
acceded to the Crown’s argument that the photos could not go before the jury as
a “visual aid”, as they had not been referred to in evidence.

[31]        
Agreeing with the
trial judge, the Court of Appeal, at para. 22, said:

[22]      It
seems doubtful that the enlargements could have been marked as exhibits since
they were not adverted to by any witness, a usual pre-condition to
admissibility of this sort of evidence. See R. v. Creemer, [1968] 1
C.C.C. 14 (N.S.C.A.). The photographs seem to me to be in a different category
from the chronology of dates and events prepared by the Crown and referred to
in argument which were allowed to be taken into the jury room in the case of R.
v. Bengert (1980), 53 C.C.C. (2d) 481, 15 C.R. (3d) 114 (B.C.C.A.). The
judge ruled in that case that such a chronology was akin to notes the jurors
could have made themselves and there was no vice in allowing the jury to have
this to help them assess the evidence in this very lengthy trial. This Court
found no error in this ruling of the judge. In my view, photographic images are
not analogous to what was being considered in Bengert. There must be
some verification in evidence of the source and accuracy of such items before
they can be allowed to form part of the record of the case before the jury. The
judge did not err when he ruled these items should not be permitted to be
placed before the jury.

[32]        
In line with
MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s
Manual of Criminal Jury Instructions and the CJC’s model jury instructions.
Both seem to confirm that charts or summaries can be used during a closing to
help illustrate or explain the evidence, even if they are not made exhibits at
trial.

[33]        
The purport of the
decisions in Bengert, Fimognairi and Basi, moreover, is
that trial judges have a wide discretion to permit what aids to the jury they consider
are helpful or appropriate.

[34]        
Support for this
wider discretion is also found in Jones A. Olah, The Art and Science of
Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes,
unfortunately with no citation other than to another secondary source that I
was unable to access:

The
use of demonstrative aids that are not part of the trial record, such as
blackboards, charts, models, and summaries, is in the trial judge’s discretion.
If the evidence provides reasonable foundation for these summaries or charts,
then their use should be permitted.

[35]        
In this case,
subject to the comments I am about to make, I am satisfied that counsel for the
plaintiff can proceed as he wishes. The intended use of the "demonstrative
aids" that he has described is modest, finite, and would assist the jury
in understanding the issues that are before them. This is also consistent with
the guidance provided in each of Bengert, Fimognairi and Basi.
Still further, my instructions will contain a caution confirming that neither
the time line nor the calculations constitute “evidence” before the jury.

[36]        
I have two further
comments. First, I am directing that counsel for the plaintiff prepare a sheet
of paper that depicts each of his time lines and model calculations. Counsel
for the defendant is to be provided these documents in advance. This will limit
the prospect that the depictions stray beyond their intended purpose and raise
still further objections.

[37]        
Second, the
materials prepared by counsel can be marked, albeit not as exhibits in the
trial, so that they will be available in the future, should that be necessary.

“Voith J.”