Tag: Jury Trials

Court of Appeal Upholds Jury Chronic Pain Award Despite Inappropriate Submissions by Counsel

Reasons for judgement were published today by the BC Court of Appeal dismissing an application for a new trial following a jury award in a chronic pain case.

In today’s case (Brown v. Goodacre) the Plaintiff was injured in a rear end collision that the Defendant was liable for.  The crash resulted in chronic pain and a jury awarded the plaintiff $847,000 in total damages.

The Defendant appealed seeking a new trial arguing plaintiff’s counsel made inappropriate submissions during the trial including

(i)       personalizing the case by bringing himself into the opening statement and closing submissions;

(ii)      giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case;

(iii)      giving engineering evidence in the guise of a common sense observation; and

(iv)     in one case, quoting a statement from a medical report that was not in evidence at trial.

The Court of Appeal noted that while some of the comments were not appropriate a failure to object during trial coupled with the trial judge’s caution to the jury about many of these comments meant no new trial was warranted.  In reaching this decision the Court of Appeal provided the following reasons:

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From Trial To Judgement: How Long Does It Take in an ICBC Claim?


Unless you work in the civil justice system or have recently accessed the Courts to resolve a civil dispute it may come as a surprise to learn that usually a verdict is not rendered by a trial judge until some time after the close of the case.  So how long does it take?  Other than giving the unsatisfactory answer of “it varies” I’ve never had any concrete data to point to in addressing this question until now.
The latest issue of the Trial Lawyer’s Association of BC’s magazine “the Verdict” (Issue # 130) sheds some light on this topic with hard data.
Two BC lawyers (Thomas Harding and Derek Miura) spent some time analyzing information obtained from ICBC through Freedom of Information requests.  With this information in hand they authored an article addressing the commonly held belief that judge alone trials are less costly and time consuming than trial by jury.  Interestingly their study concludes that the opposite of this appears to be true when factoring in the time and cost associated with reserved reasons for judgement.
Their statistical analysis shows how long it takes judgement to be delivered after the average Judge alone ICBC trial in BC Supreme Court.  The answer is a ratio of 29 days for every day of hearing.  In other words, on average a one day trial would have judgement pronounced 29 days after trial.  A 5 day trial would take 5 times longer (145 days) and the average 10 day trial would take 290 days for judgement.
In addition to shedding light on this topic, the recent installment of the Verdict is worth reviewing in full for its in-depth analysis of the current state of the law relating to civil jury trials in BC.  It is available free on-line for TLABC members and can be subscribed to by the public at large for a fee.

Jury Notice Struck in Complex "Shaken Baby" Case


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, striking a Jury Notice in a complex “shaken baby” case.
In this week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the Plaintiff claimed damages “for a brain injury suffered on June 11, 2001 while in the care of the defendant Dutrisac who was the owner and operator of a licensed daycare… The plaintiffs allege that the defendant Dutrisac was negligent in her care of the infant plaintiff, resulting in his fall to the floor where he struck his head and suffered a brain injury.  They claim that following the initial injury, Dutrisac further exacerbated that injury when she allegedly shook or jostled the infant so as to have him remain conscious.  The plaintiffs’ claim against the CHR is that it was negligent in its ongoing inspections of the daycare facility and in continuing to license that facility notwithstanding a number of complaints made by various parents over the weeks and months preceding the infant plaintiff’s injury.”
The Defendants brought an application pursuant to Rule 12-6(5) to strike the Plaintiff’s Jury Notice.  Madam Justice Boyd agreed that the case was not appropriate for a Jury to preside over and granted the application.  In doing so the Court provided the following reasons:

[16] Having considered the submissions of counsel and having reviewed the many expert reports which have been filed, I find that there are a plethora of elements in this case which raise issues of both complexity and intricacy.  The trial will be long.  It will involve two sets of defendants, each involving different standards of care.  The CHR defendants’ duty of care will be particularly complex to determine, given the statutory scheme and whether or not that scheme negates any private duty of care.

[17] However most complex of all will be the issues concerning the causation of the infant plaintiff’s brain injury, whether there was any pre-existing brain injury, and what damages may be attributed to the pre-existing brain injury, if any.  The determination of these issues will require that the jury consider and weigh the conflicting and highly complex evidence of a number of different medical experts from a number of different specialties.

[18] At the heart of this debate will be the central theme of the “shaken baby syndrome”, since, even on the basis of the plaintiffs’ expert’s amended opinion, the acceleration/deceleration theory of injury is advanced regarding the jostling of the child, following the initial fall.  As Mr. Lindsay has pointed out, the Shaken Baby Syndrome or the acceleration/deceleration mechanism of injury remains one of the most highly debated areas in the field of forensic pathology.  The debate continues to rage in the medical and scientific community concerning these types of injuries in infant children.  In this regard, I take particular note of the comments of Chief Judge Crabtree of the British Columbia Provincial Court in British Columbia (Director of Child, Family and Community Service v. Z.B., 2011 BCPC 0072.

[19] I must note that while I have treated this application to strike the jury notice as a joint defence application, in fact, in my companion ruling I have already dismissed the action against the CHR.  In my view this does not result in any different ruling regarding the striking of the jury notice.

[20] On a consideration of all of these issues, but most particularly the medical and scientific evidence to be weighed, I find it is completely unrealistic to believe that even a well instructed, intelligent jury would be able to cope with the determination of all the issues here.  Thus I exercise my discretion under the rule and order that the jury notice be struck in this case.

BC Sexual Assault Civil Claims Legal Update

Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults.  The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.
In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party.   The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:.    His friend was not home but his friend’s father let him spend the night.  The defendant (the father) “sexually assaulted the plaintiff later that night.”
The Plaintiff sued for damages and selected trial by Jury.   The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages.  The question was what amount was appropriate.
During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to.  Particularly the Plaintiff’s lawyer  “questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”
The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury.    Mr. Justice Brown reluctantly granted the motion.  In doing so he provided the following reasons:

[25]         Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.

[26]         This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.

[27]         Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.

[28]         The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.

[29]         Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.

[30]         Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.

[31]         A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.

[32]         However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.

[33]         The defendant’s application to dismiss the jury and continue by judge alone is granted.

________________________________________________________________________________________________

The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.

In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“.  In the course of the prosecution a preliminary inquiry was held and the alleged victim testified.   The Attorney General stayed the prosecution before trial.

The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“.   The former teacher opposed this.

Madam Justice Griffin ordered that the records be produced and provided the following reasons:

[41]         In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.

[42]         Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided.  To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.

[43]         I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).

[44]         In the circumstances of this case, I grant the following declaratory relief:

(a)      the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and

(b)      the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.

More on BC Injury Claims and Improper Closing Arguments – Appealing to Juror's Emotion

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case.  There are limits, however, on the types of statements a lawyer can make to a jury and if these boundaries are overstepped a mistrial may occur.  Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages.  During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office.  At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.
The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“.  The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone.  Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury.  In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]             The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ sympathies divert them from this important responsibility. In that regard, see Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in Hesse v. The Saint John Railway Company (1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel’s] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]             I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

BC Court of Appeal Discusses Documents Used in Cross Examination and Disclosure Requirements

Further to my recent post discussing this topic, reasons for judgement were released today by the BC Court of Appeal discussing parties responsibilities to disclose documents they intend to use at trial for cross-examination purposes.
In today’s case (Cahoon v. Brideaux) the Plaintiff was injured in a BC motor vehicle collision.  The crash was described as a “minor rear ender“,  Despite the minor vehicle damage the Plaintiff claimed serious and prolonged injuries.  She asked the jury to award her damages of over $1.3 million.  The jury rejected much of the Plaintiff’s claim and assessed damages of just over $34,000.
The Plaintiff appealed on various grounds arguing that she was deprived of a fair trial.  One of the arguments on appeal was an allegation that the Defence lawyer ‘ambushed‘ the Plaintiff during cross examination by using a document that ‘had not been properly described in the list of documents’.  Specifically the Plaintiff testified during trial that she had “clear title” on her home.  The Defence lawyer then challenged this with a copy of a mortgage which contradicted the Plaintiff’s evidence.  This document was listed on the Defence Lawyer’s list of documents but was not identified in a clear manner.
The BC Court of Appeal held in 2 recent cases (click here and here to read about these) that if parties fail to adequately describe privileged documents in their list then the evidence may not be allowed in at trial.  The Plaintiff cited these cases as precedents.  The Court of Appeal rejected the Plaintiff’s argument and distinguished these cases.  In concluding that no prejudice arose from the failure to adequately describe the mortgage document the Court provided the following reasons:

[39] However, in this case, no similar prejudice resulted from the failure of the respondents to describe the mortgage copy in compliance with Rule 26(2.1) since the trial was already underway when the document came into existence and into the possession of defence counsel.  Moreover, in contrast to Stone, the information in the copy document was known to Mrs. Cahoon – the original mortgage was her own document.  In the context of this discussion, the photocopy was evidence of an inconsistent out-of-court statement made in writing by Mrs. Cahoon before the trial.  I do not understand Stone to stand for the proposition that cross-examining counsel’s possession of such evidence must be disclosed to the witness before cross-examination on the statement will be permitted or, to frame the proposition as Mrs. Cahoon frames it, that to permit cross-examining counsel to surprise a witness with such a statement is improper “trial by ambush”.  Such a rule would insulate witnesses against the effects of cross-examination on prior inconsistent statements and would undermine the search for truth in the litigation.  As well, it would be contrary to the purpose identified in Blank for which litigation privilege is granted.

[40] In summary, Mrs. Cahoon made false statements (that her home was “clear title” and that she had no mortgage on it, let alone one for $800,000) and defence counsel confronted her with the copy of the mortgage and demonstrated the falsity of her earlier answers.  Mrs. Cahoon gave an innocent explanation for her false answers – she said she had been mistaken – and she amplified her explanation in re-examination.  Her counsel called further evidence from the credit union’s solicitor to explain the transaction and to support Mrs. Cahoon’s explanation of her inconsistent answers.  Counsel for both parties addressed the jury as to the weight and significance they should attach to this evidence.

[41] All of this was relevant to Mrs. Cahoon’s credibility, which was a central issue in the case.  There was nothing improper or unfair in the way in which defence counsel dealt with this evidence at trial and I would reject this ground of appeal.

This case is worth reviewing in full for all BC injury lawyers.  In addition to the above topic, the BC High Court gives extensive reasons on the role of lawyers in advancing their client’s claims and the type of arguments that are permissible before juries.

BC Court of Appeal Discusses In Trust Claims and Document Disclosure Requirements


Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.
By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.
The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.
1.  In Trust Claims
Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.
In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

The Jursidiciton of Trial Judges to Rule on "Trial Fairness" Matters

In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash.  The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages.  Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence.  The Plaintiff successfully applied for a mistrial.  (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal.  In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:

[24] It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities,[1935] 1 D.L.R. 432 at para. 83, [1934] 3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.

[25] In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.

More on BC Injury Claims and Mode of Trial

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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