ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘jury strike applications’

Medical Malpractice Claim Not Too Complex for a Jury to Understand

January 23rd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a defence request to have a jury struck from hearing a medical malpractice lawsuit.

In today’s case (Howe v. Hwang) the Plaintiff commenced a lawsuit alleging negligence following a series of complications relating to the surgical treatment of diverticulitis.

The parties settled on damages but the issues of liability (fault) remained open for the court to decide.  The Plaintiff elected trial by jury.  The Defendants objected arguing a medical malpractice case was too complex for a jury to understand.  Master Keighley disagreed and provided the following reasons in upholding the Plaintiff’s right to trial by jury :

[41]         My authority to grant the order sought is discretionary. In exercising this discretion, I must consider the issues holistically, in determining whether, at the conclusion of my analysis, the considerations raised by Rule 12-6(5) support the defence assertion that this case is not appropriate for a decision by a jury.

[42]         It may go without saying that the jury in this case will be required to engage in a prolonged examination of documents, that the resolution of the issues before this jury will require a scientific or local investigation and that the issues are of an intricate and complex nature. Thus my discretion is engaged.  

[43]         Amongst the factors which I have considered in determining that it is appropriate to have this case tried by a judge and jury, I have considered the following:

1.     The anticipated length of the trial.

[44]         The trial will not be a long one. It is presently anticipated by counsel that it will take perhaps ten or 11 days of the three weeks set aside. This reduction in time is primarily the result of the resolution of the claims against Dr. Crowley, and the agreement which has been reached with respect to damages. The jury will not be obliged to retain the technical knowledge they acquire for many weeks before delivering its verdict

2.     The number of experts to be called.

[45]         As I have indicated, the plaintiff will be relying on two experts and the defendant on three.

3.     The volume of expert evidence.

[46]         As is the case with most expert reports, the text is dense and replete with scientific terminology. But in objective terms the reports, as I have indicated, total 32 pages, far from a vast volume of expert reports.

4.     The nature and character of the expert evidence.

[47]         The jury will be obliged to consider conflicting opinion with respect to the conduct of the defendant. I have reviewed the medical reports. While I am untrained in medical matters I have no difficulty in following the rationale expressed by the experts or understanding the terminology used. I cannot see that a jury, properly instructed, will have difficulty in coming to a conclusion on the basis of technical issues alone. The opinions of all five experts are clearly stated and, apparently, objective. Juries are, of course, often called upon to deal with conflicting expert evidence with respect to medical issues in the context of personal injury litigation. I do not regard the terminology which appears in the pleadings or the expert reports as being mysterious or opaque. I am confident that with supplementary assistance from the experts, counsel and the presiding judge, the reports may be appropriately dealt with by a jury.

[48]         In summary, although the jury in this case will be obliged to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, I am not satisfied that those considerations put this case beyond the range of functions credited to juries in our system.

[49]         As previously indicated to counsel, the application is dismissed. The issue of costs was dealt with at the conclusion of the hearing.


BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

November 10th, 2015

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.

In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.

The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.


NHL Player’s Wage Loss Claim Not “Too Complex” For a Jury

May 15th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Jury was capable of determining an NHL player’s wage loss claim in a personal injury lawsuit.

In today’s case (Franson v. Caldarella) the Plaintiff, Cody Franson, was injured a in 2008 collision.  At the time he “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.”

The lawsuit claimed that the collision related injuries delayed his entry into the NHL by one year.  He claimed damages for loss of opportunity for this year and further alleged that his subsequent NHL contracts would have been more favorable had the delay not occurred.  The Plaintiff brought an application to strike the Defendant’s jury notice arguing that the intricacies of NHL contract negotiations are too complex for a jury.  Madam Justice Fisher disagreed and dismissed the Plaintiff’s application.  In doing so the Court provided the following reasons:

[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?..

[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.

 


BC Court of Appeal Upholds Jury Strike Applicaiton in “Prolonged” Personal Injury Case

October 8th, 2013

Reasons for judgement were release this week by the BC Court of Appeal upholding a judges decision to strike a jury notice in a complex and prolonged personal injury trial.

In this week’s case (Wallman v. Gill) the Plaintiff alleged that “he suffered serious injuries” in a rear end collision.   The trial was scheduled with “at least 23 experts…as well as some 31 civilian witnesses” and was expected to last 7 weeks.  The Defendants wished to have the trial judge proceed before a jury but a chambers judge struck the jury notice finding the trial was too prolonged and complex for a jury.  In upholding this decision the BC Court of Appeal provided the following reasons:

[7]           The decision to strike a jury notice is a discretionary one that relates to the management of a trial and may not be interfered with lightly on appellate review: MacPherson v. Czaban, 2002 BCCA 518. Absent an error of principle, or failure to give sufficient weight to all relevant considerations, deference must be accorded to such an order.

[8]           The legal test to be applied on review of a discretionary order is whether the judge “has given weight to all relevant considerations”: Mining Watch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para. 43. The appellants contend that the chambers judge acted on irrelevant considerations or alternatively failed to apply established legal criteria. With respect, I do not agree.

[9]           In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time…

[13]        These decisions, in addition to many others, demonstrate the type of considerations that must be weighed when faced with an application to strike a jury notice. The management of a proposed civil jury trial requires the judge to ensure, as best as he or she can, that all who are involved, including the parties, their counsel, the potential jurors and the trial judge are able to satisfactorily perform their respective duties and responsibilities in order to meet the common objective of a fair trial.

[14]        In this case, the chambers judge applied the correct legal test under R. 12-6(5) for the striking of a jury notice and in my view cannot be said to have erred in the exercise of his discretion in striking the jury notice in order to ensure the proper conduct and management of the trial of this action. Accordingly, I find no basis upon which this Court might interfere with the order and therefore I would dismiss the appeal.


BC Court of Appeal Discusses Two Routes of Challenging Jury Notices

March 22nd, 2013

Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process.  Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application.   The Court provided the following feedback:

23]         By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.

[24]         I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.

 


Striking a Jury and Timing in a BC Personal Injury Lawsuit

August 1st, 2009

When personal injury claims, including ICBC claims, are prosecuted in the BC Supreme Court either side has the right to elect trial by jury.  (The exception to this rule is when the claim is prosecuted under BC’s fast track Rules 66 or 68).

For a party to elect trial by Jury they simply need to give notice in accordance with Rule 39(26).

If an opposing party wishes to challenge the election for a jury trial they can oppose it pursuant to Rule 39(27) which holds in part that:

(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 […]

What if a party opposes trial by jury but fails to challenge the jury election within the 7 day limitation period set out in Rule 39(27)?  Are they out of luck?  Not necessarily and reasons for judgment were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with this are of the law.

In yesterday’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents 10 years apart.  One of the Defendant’s chose to have the case heard by judge and jury.  The Jury notice was filed in 2003.  The Plaintiff brought an application to dismiss the jury notice years after it was filed.

One way to challenge a jury notice outside of the 7 days required by Rule 39(27) is to do so at a pre-trial conference.  This is so because s. 35(4)(a) of the current Supreme Court Rules permits a judge or a master at a pre-trial conference to order that a “trial…be heard by the court without a jury, on any of the grounds set ouyt in Rule 39(27)“.  Yesterday’s case, however, was not heard at a pre-trial conference and this subrule did not assist the Plaintiff.

Rule 3(2) was of assistance which states that:

The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

In yesterday’s case Madam Justice Arnold-Bailey held it was appropriate to extend the time permitted to challenge the Jury Notice under Rule 3(2) and ultimately ordered that the trial proceed by judge alone.  (the judgement is worth reviewing in full for anyone interested in the factors courts consider when considering whether the trial will require a ‘prolonged examination’ or is too “intricate or complex” to be tried by a jury).  In so ordering the Court summarized and applied the law with respect to late jury strike applications as follows:

[19] In Reischer v. Love & ICBC, 2005 BCSC 1352, the court was faced with similar issues in relation to an application to strike a jury notice in the context of two actions that were going to be heard together.  Well after the original jury notice for the first action was filed, but shortly after the court set a new trial for both actions to be heard together, the plaintiff brought an application to have the jury notice struck.  Drost J. first cited the settled law, explaining that the mode of trial selected for the first action is what determines the mode of trial for the several actions to be heard together.  From this principle flows the further settled point that it is the original jury notice that must be considered with regard to Rule 39(27).  In that case, as well as the case at bar, the seven day time limit had clearly passed.

[20] Drost J. then addressed Rule 35(4)(a) and held that since the application occurred outside the scope of a pre-trial conference, he could not rely upon that section to strike the jury notice either.  These circumstances also parallel the case at bar.

[21] Finally, Drost J. turned to the general judicial discretion to extend time limits afforded in Rule 3(2) and stated (at paras. 37-38) that there are two questions to consider in the circumstances: 1) whether, at an early stage of the proceedings, the plaintiff formed an intention to strike the jury notice, and 2) whether there has been such a change in circumstances as to materially alter the character of the proceedings and render them clearly inappropriate for a trial by judge and jury.  The court answered both questions in the negative, finding in particular that all of the circumstances of the combined actions were known to the plaintiff even when the initial jury notice was filed.

[22] Despite this, the court in Reischer still allowed the time extension for the application to strike the jury notice under Rule 3(2) by relying on the authority of Harder v. Nikolov, [2001] B.C.J. No. 1528 (S.C.), where the court held at para. 17 that lack of timeliness does not necessarily preclude an application to strike a jury notice.  Rather, the time restrictions set out in Rule 39(27) may be overcome if consideration of trial fairness so requires.  In Reischer, at para. 41, Drost J. stated that but for the application of this principle from Harder, the court would have dismissed the plaintiff’s application.

[23] With these decisions in mind, I note firstly that unlike the plaintiff in Reischer, the plaintiff in this matter could not have been aware of all the circumstances in relation to the combined actions dealing with her motor vehicle accidents at the time the original jury notice was filed.  Whereas the accidents in Reischer occurred a relatively short time apart, the accidents in this case occurred a decade apart and the court proceedings in relation to the first accident were essentially at the point of trial before the plaintiff could have possibly been aware of the circumstances arising from the second accident.  I also note that the plaintiff advised of her intention to strike the jury notice within five days of the Court adjourning the first trial and filed her notice of application to strike the jury notice before the Court reset the trial of the two actions.

[24] As to the second question set out in Reischer, and unlike the court’s finding in that case, I do find that a significant change in circumstances has occurred here.  The trial will now be significantly longer and will involve complex legal issues related to causation, including the defence of novus actus, in the context of two accidents that occurred a decade apart.  I find that this is a sufficient change to the character of the proceedings such that a consideration, at least, of the plaintiff’s application to strike the jury notice is necessary and just.

[25] Alternatively, like the court in Reischer, I would in any event also apply Harder and find that the lack of timeliness in the plaintiff’s application is overcome by considerations of trial fairness.

[26] In short, I do not give effect to the Chandra and Doorandish defendants’ initial objections to this application, and I will now turn to consider its merits.