IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140814

Docket: M140728

Registry:
New Westminster

Between:

Elizabeth Ann
Singleton

Plaintiff

And

MacKenzie Fujisawa
LLP and Michael Murphy

Defendants

Before:
Master Muir

Reasons for Judgment

[1]            
This is an application by the defendants for an order setting aside the
plaintiff’s Notice Requiring Trial by Jury.

[2]            
The present action is a solicitor’s negligence action arising from the
defendants’ representation of Ms. Singleton in an action related to a
motor vehicle accident that occurred on June 24, 2005 in Gibsons, B.C.
(Vancouver Registry, Action No. M060288) (the “personal injury action”).

[3]            
 Ms. Singleton was rear-ended while stopped at a stop sign at the bottom
of a steep hill. There was apparently a slippery substance on the road at the
time.

[4]            
The primary liability issue in the personal injury action was the defendants’
claim of inevitable accident due to the slippery substance on the road and
whether, given that plea and the reverse onus arising from it, the plaintiff
had proved the accident resulted from the defendants’ negligence.

[5]            
The trial judge dismissed the personal injury action. She held that
negligence had not been proved in the circumstances.

[6]            
Ms. Singleton was then advised to and did appeal. The appeal was
unsuccessful.

[7]            
Ms. Singleton now alleges that her counsel, the defendants herein,
breached their contract with her, breached their fiduciary duty to her and were
negligent, amongst other things in, 1) failing to name other defendants who
might have been responsible for the slippery substance on the road, and 2) failing
to call sufficient evidence to supplant the defence of inevitable accident.

[8]            
Ms. Singleton seeks a trial by jury and has filed the requisite notice. There
is a right to a trial by jury unless the case falls within an exception barred
by the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”)
or the applicant establishes that the case falls within the grounds set out in Rule
12-6(5) of the Rules. If the case does fall within that sub-rule, there
is a wide discretion in the court in considering whether the matter is
appropriate for a jury. The right to a jury will not readily be disturbed.

[9]            
The defendants argue this matter is too complex to be heard by a jury. Counsel
points to the expert reports and the closing arguments in the personal injury
action. Those reports and arguments were lengthy and dealt extensively with the
issue of inevitable accident.

[10]        
The defendants argue that determination of this claim will require a
trial within a trial. The jury would be required to determine if the defendants’
actions were in keeping with the standard of care required, analyze the
evidence then before the court, and consider whether additional defendants
should have been added or whether additional evidence was available.

[11]        
The jury would then have to determine whether at the trial of the
personal injury action the plaintiff would have been successful in the new
circumstances. If so, she could recover her damages. If that is not proved, then
the potential loss of opportunity the plaintiff had to succeed in her personal
injury action must be considered. Then the trier of fact would have to consider
whether there was any breach of the standard of care in recommending the
plaintiff appeal the personal injury decision and what would flow from that.

[12]        
The defendants say that there has never been a case in B.C. where a jury
has considered a case requiring a trial within a trial. On the contrary, they
argue several decisions have concluded that cases requiring a trial within a
trial are too complex for consideration by a jury.

[13]        
The defendants rely on Cederland v Bilkey, 2001 BCSC 1152, Persall
v Buxton, 2012 BCSC 347 and Lopushinsky v. Spraggs, 2000 BCSC 222. All
were solicitor’s negligence cases.

[14]        
In Cederland, at para. 17, the court rejected the argument
that solicitor’s negligence cases are not appropriate to be heard by a jury and
held that each case has to be considered on its own facts and on the basis of
the pleadings in the action. In that case, a jury notice was set aside in the
context of a settlement that was argued to be improvident. There the court
considered that the complexities inherent in a recommendation to settle and in
determining whether that was negligent were best considered by a judge alone.

[15]        
The Persall case was a solicitor’s negligence case that involved a
trial within a trial, the plaintiff’s potential contributory negligence, the
impact of that on joint versus several damages and the approach counsel would
take in negotiating a settlement in the circumstances. The court accepted that
a jury was capable of determining the original personal injury action and
whether there was a breach of duty by the solicitor, but held the other factors
involved made the matter too complex and ordered the jury notice struck.

[16]        
In Lopushinsky, the court held:

[20] I have
concluded that the facts and issues in this case are such that it is not
appropriate for determination by a judge with a jury. From Mr. Lopushinsky’s
statement of claim, it appears that the trier of fact, to decide this case,
will have to consider the original trial that ended in 1987, the reasons for
judgment, and then form a reasoned opinion of the prospect of success on
appeal. Against that backdrop, the trier of fact must consider such legal
matters as negligent and fraudulent misrepresentation, economic duress,
negligence and fiduciary duties. The trier of fact will also have to consider
whether the application for a stay of execution was appropriate and may have to
consider whether there existed a conflict of interest. A particularly complex
issue is whether in all of these circumstances the contingency fee agreements
were fair and reasonable and whether they should be set aside. This summary
does not touch all of the issues, but it is sufficient, in my view, to
demonstrate that the issues are of sufficient complexity and intricacy to
require an order that the trial be heard by judge alone.

[17]        
The defendants argue that this case is at least as complex as the three
cases referenced.

[18]        
The plaintiff argued as a preliminary point that the defendants had
failed in their obligation to bring a proper foundation in evidence for their
application. The plaintiff referenced De Corde v. De Corde, 2011 BCSC
1719, Zecher v. Josh, 2011 BCSC 311, Sutherland v. Banman, 2008
BCSC 1194 and Chapman v. Magee, 2009 BCSC 1736. Counsel argued this was
fatal to the application before me.

[19]        
This position was also advanced in Cederland, where the court
held at para. 22:

Except for the pleadings there is
no evidence before the court by way of affidavit concerning the question of
complexity. However, it is nonetheless my view that this is a matter best heard
by a judge without a jury for all the reasons which Sigurdson, J. has set
out in Lopushinsky, including the opportunity for a judge to reflect on the
evidence and to be able to put together the pieces of this difficult legal
puzzle without the pressures of time that might be affecting a jury.

[20]        
Here, although the evidence is limited, the defendant relies on the
pleadings, the expert reports regarding the accident and the closing
submissions of both counsel at the personal injury trial. I consider there
is a sufficient evidentiary foundation for the arguments advanced by the
defendants.

[21]        
The plaintiff’s position is that generally the trend is to an expansion
of the ambit of jury trials. She argues that complex medical negligence cases
that were heard by judge alone in the past are now heard routinely by juries. Counsel
for the plaintiff submitted that medical negligence cases are typically more
complex than solicitor’s negligence cases as doctors have more defences
available to them. Counsel also pointed out that even the most complex criminal
trials are dealt with by juries and cited R. v. Pickton as an
example.

[22]        
Further, counsel for the plaintiff argued that it cannot generally be
said that it is more difficult to instruct a jury than it is for the judge to
instruct himself or herself, that a jury is capable of dealing with many complex
matters and it is easier for juries to make decisions.

[23]        
It is the plaintiff’s position that there are significant benefits to
the parties of a jury trial. The object of Rule 1-3 of the Rules is the
just, speedy and inexpensive determination of every proceeding on its merits. Juries
give results in a few days, judges often reserve on complex matters for a
considerable period of time. Although it was a very long trial, with very
complex issues, the jury deliberation in the Pickton matter was 9 days. Although
the norm is for a judge to give reasons within at most a few months, the
reserve time in complex cases can be a year or more.

[24]        
The plaintiff referred to Franson v. Caldarella, 2014 BCSC 853, Parmar
v. Blenz the Canadian Coffee Company Ltd., 2008 BCSC 1338, and the
unpublished decision in Weinlich v. Campbell (Vancouver Registry, Action
No. S026835, January 31, 2006).

[25]        
Franson was a complicated case involving the loss of income of an
up and coming hockey player due to injuries sustained in a motor vehicle
accident. The court held that a jury was capable of dealing with the scientific
examination necessary and the hypothetical issues involved.

[26]        
Parmar was a complicated intertwining solicitor’s negligence/commercial
case involving the solicitor’s advice on the purchase of a franchise which
failed. There the court held the matter was not so unduly complex as to require
trial by judge alone.

[27]        
Weinlich was a medical malpractice case involving a stroke suffered
by the plaintiff following manipulation by a chiropractor. It involved
different fields of expertise and the standard of care to be applied to each along
with complex damage issues. Again, the court held that a jury was capable of
dealing with the case.

[28]        
The plaintiff submitted that this action was no more complex than the
cases she relied on. The cases relied upon by the plaintiff, however, do not
involve the added element of a trial within a trial.

[29]        
Here, there is a trial within a trial, the potential of additional
defendants and evidence, the defence of inevitable accident, the shift in onus
as a result, and the issue of the appeal. While I believe there is merit
to the plaintiff’s position that juries are routinely hearing more complex
matters than ever before, I am unable to distinguish this case from those
relied upon by the defendants, involving, as it does, a trial within a trial
and a similar level of complexity.

[30]        
Accordingly, the jury notice is struck. The defendants will have their
costs in the cause.

___________ “Muir
M.”___________
Muir M.