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Court Criticizes ICBC's "Disappointing" Take On Diminished Earning Capacity Claim

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

The factors to be considered when assessing damages for ‘diminished earning capacity’ are well established in law.  Reasons for judgement were released today  by the BC Supreme Court, Kelowna Registry, addressing this and criticizing ICBC’s approach when valuing this loss.
In this week’s case (Tarasevich v.Samsam) the “plaintiff’s hips and sacrum were seriously injured in a motor vehicle accident“.  The injury was expected to pose long term problems requiring serial surgeries to address these issues in the future.   The injury caused chronic pain and impacted the Plaintiff’s working tolerance.   Despite this, ICBC argued that the long term injury will only have  a modest impact on the Plaintiff’s earning capacity because “the plaintiff was bound to become a sedentary office worker in any event and that because her physiatrist has said that despite her injuries she can engage in a full-time sedentary occupation, she will therefore not suffer a significant loss of future income“.
Mr. Justice Rogers rejected ICBC’s position and provided the following criticism:
[52]         To repeat: the defence’s approach to this head of damages is to assert that the plaintiff was going to be a sedentary office worker in any event and that because the evidence shows that she is likely to now follow that career path, she cannot be said to have suffered a loss. The defence asserts this proposition notwithstanding the uncontroverted evidence that the plaintiff’s hip and lower back injuries markedly limit her ability to do the kind of work that she actually did, and did well, before her injury.
[53]         It is disappointing that in this day and age, nearly 30 years after Brown v. Golaiy, a defendant would cleave to such a wrong-headed approach to a claim for reduction of earning capacity…
[56]         The plaintiff was a young person when she was injured. It is possible that she would have enjoyed sufficient success in retail sales and management that she would not have gone on to work in an office environment. It is equally possible that she would have taken office administration courses while still working full or part‑time and would have gone on to find employment in an office. The plaintiff’s history in the labour force was too brief to support a confident prediction of the direction her future would take. One cannot, therefore, say that the plaintiff’s loss may be calculated by measuring the delta between pre- and post-injury income streams. For that reason, I find that assessment is the appropriate methodology for this case.
[57]         The plaintiff has made a genuine effort to engage in work. She has tried and failed to work as housecleaner. She has tried and failed to work full-time in the same type of sales job she did before the accident. If the plaintiff does not pursue sedentary work but continues to work in sales or some other occupation that requires her to be on her feet for the majority of the day, I find that her stated preference for part-time work is reasonable given her symptoms and limitations. If she works part-time in a sales position, she will likely have more energy to look after her household and to participate in social activities and such recreational pursuits as she can still do. Working part-time will allow her to achieve some reasonable degree of balance between earning a living and having a life to live.
[58]         On the other hand, I find that as a result of her injuries the plaintiff’s best course of action will be to earn a Grade 12 diploma or its equivalent and then to enroll in a course of post-secondary that will qualify her for employment in an office environment. Even in an office environment, the plaintiff will be a generally less desirable employee than her able-bodied colleagues. In order to work full-time, the plaintiff will need a sympathetic employer who is willing to accommodate her limitations.
[59]         In either case, the plaintiff’s participation in the labour force will be interrupted by serial hip replacement surgeries.
[60]         For these reasons, I have concluded that the proper award for reduction of the plaintiff’s earning capacity is $250,000.

Costs for Fast Track Trials Exceeding 3 Days Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15. 57 Comments on Costs for Fast Track Trials Exceeding 3 Days Discussed

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing assesable costs when a fast track trial exceeds 3 days.
In today’s case (Peacock v. Paul) the plaintiff was involved in two collisions.  Although only one of the cases was put into the fast track the Court deemed that Rule 15 applied to both actions.  The trial took a total of 5 days.   ICBC argued that costs should be capped at $11,000 but Mr. Justice Affleck declined to do so and used his discretion to increase costs by $1,500 for each additional day of trial.  In reaching this conclusion the Court provided the following reasons:
[20]         Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39). She concluded:
39        I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.
[21]         Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used inShiekh v. Struys, 2013 BCSC 1148.
[22]         In Coutakis v. Lean, 2012 BCSC 1447, the court considered a successful plaintiff’s claim for costs in a fast track action. The trial took five days including one day where trial did not proceed due to illness of the judge. The court held:
10        Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein. In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff. That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon. Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual. Further time was spent hearing irrelevant evidence from the defendant.
…
13        Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.
[23]         In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.

$85,000 Non-Pecuniary Assessment for Dental Misalignment Coupled With Soft Tissue Injuries

Written by admin on . Posted in ICBC Dental Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing damages for dental injuries sustained in a vehicle collision.
In this week’s case (Latek v. Krol) the Plaintiff was involved in a 2011 collision for which the Defendant accepted responsibility.  The Plaintiff suffered a jaw injury resulting in misaligned teeth and various soft tissue injuries.  He was an active individual and suffered a variety of soft tissue injuries which impacted his physical lifestyle.  In assessing non-pecuniary damages at $85,000  Mr. Justice Sewell provided the following reasons:
[6]             Mr. Latek was seen by his family doctor, Dr. Ostapkowicz, on May 25, 2011. At that time he was moving with difficulty and could hardly talk. His jaw was swollen and he was unable to chew. He complained of head and teeth ache, maxilla and jaw pain, difficulty in opening his mouth, neck pain, right and left shoulder pain, right lower back, hip and knee pain, as well as left foot pain.
[7]             Mr. Latek was examined by his family dentist, Dr. Gill, on May 25, 2011. At that time he was able to open his mouth only ten millimetres wide, as compared to a normal opening of 40-45 millimetres. Dr. Gill noted that 16 of Mr. Latek’s front teeth were loosened and significantly mobile. On a later examination on July 25, 2011, Dr. Gill observed that two of Mr. Latek’s teeth were misaligned inwardly.
[8]             Mr. Latek remains under the care of Dr. Gill for treatment of the injuries to his teeth. He currently wears braces to correct the misalignment of his teeth suffered in the accident. Once the orthodontic treatment is completed there is a possibility that Mr. Latek may require further treatment to his jaw but Mr. Latek’s prognosis is generally favourable.
[9]             Over time many of Mr. Latek’s symptoms resolved. His last recorded visit to Dr. Ostapkowicz was on December 11, 2012. On January 31, 2013, Mr. Latek attended an independent medical examination by Dr. Hirsch, a specialist in physical medicine and rehabilitation. By that time, Mr. Latek’s injuries were largely resolved except for pain in the low back, left hip and buttock and left knee. Dr. Hirsch’s opinion was that Mr. Latek’s injuries were soft tissue in nature. He found no evidence of any structural or ligamentous damage or any indication of structural injury to the spine. Dr. Hirsch characterized Mr. Latek’s lower back pain as mechanical, or pain that is exacerbated by activities and postures that stress or load the back…
[27]         Mr. Latek’s injuries, though extensive, were not severe or life threatening. He did not suffer an inordinate amount of pain from them. Most of his injuries resolved within about a year after the accident.
[28]         However, the impact of the injuries on Mr. Latek has been much more serious than they might have been on a more sedentary plaintiff. I am satisfied that much of Mr. Latek’s self-esteem and enjoyment of life were based on his physical prowess and his ability to engage in activities requiring a high level of physical fitness, endurance and strength.  Mr. Latek gave priority to those activities over the pursuit of a career in the two years before the accident.
[29]         I am satisfied that Mr. Latek’s inability to pursue his pre-accident activities is attributable to the injuries he suffered in the accident. In my view that loss has had a profound effect on Mr. Latek’s enjoyment of the amenities of life. While there is no expert medical evidence about the physiological and mental health impact of the loss of the ability to do what he did before the accident, I conclude that that loss together with his pain symptoms caused the personality changes exhibited by Mr. Latek since the accident…
[34]         Taking Mr. Latek’s injuries into account in the context of the authorities, and giving particular weight to the impact the injuries have had on Mr. Latek’s quality of life, I assess non-pecuniary damages at $85,000.

A Draw is a Loss in the World of Tort Litigation

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 58 Comments on A Draw is a Loss in the World of Tort Litigation

When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place.  In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant.  The Defendant denied the allegations in their entirety.  Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed.  In dismissing the claim Mr. Justice Melnick provided the following reasons:
[50]         In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

Written by admin on . Posted in BCSC Civil Rule 15. 64 Comments on Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.
In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:
[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.
[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).
[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.
[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

Private "Non Urgent" MRI Cost Denied as Disbursement

Written by admin on . Posted in Uncategorized. 52 Comments on Private "Non Urgent" MRI Cost Denied as Disbursement

Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:
[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:
For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.
[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:
Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.
[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…
[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.
[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.
[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.
[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.

Privileged and Undisclosed Report Recoverable As Disbursement

Written by admin on . Posted in Uncategorized. 161 Comments on Privileged and Undisclosed Report Recoverable As Disbursement

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.
In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision.  In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist.  The GP report was privileged in not disclosed.  ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents”
District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:
[8]  I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653.  Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:
A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..
Her Honour goes on to say:
 When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done
[9]  I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable.  The disbursement is allowed as presented.
To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.

An IME "Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery"

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:
[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.

$130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases. 44 Comments on $130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision.  The Defendant admitted fault for the collision.  The crash caused a disc herniation which required a bilateral disectomy.  The Plaintiff was left with chronic pain accompanied with depressive symptoms.   In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
[41]         Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop.  Following the accident, he was a very different person.
[42]         There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
[43]         In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement.  He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
[44]         Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions.  She also opined that he has mechanical lower back pain.  She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.”  She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor.  It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
[45]         Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression.  Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
[77]         When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.

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

Written by admin on . Posted in BCSC Civil Rule 12.

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.