The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports
Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial. In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision. Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions. In the course of the lawsuit a total of 32 expert reports were obtained by the litigants. The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“. Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
 Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.