03 Sep Plaintiff Applies To Strike Defendant’s Jury Notice

In Lee v. Averbach, 2019 BCSC 1280, the Plaintiff applied for an order that the Defendant’s jury notice be set aside and the trial proceed without a jury.

The Plaintiff relied on Rule 12-6(5)(a) of the Supreme Court Civil Rules, which allows the court to strike out a jury notice if:

• the issues require a prolonged examination of documents or accounts or a scientific investigation that cannot be made conveniently by a jury. “Conveniently” refers to whether or not the jury has the ability to understand the evidence and retain that understanding until the end of the trial;
• the issues are of an intricate or complex character; or
• the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action.

The Plaintiff argued that the jury would be faced with extensive medical evidence and complex causation issues. The Plaintiff submitted there was disagreement between the experts about the Plaintiff’s condition, whether it was caused by the motor vehicle accidents and the long-term impact on her employment prospects. The Defendant argued that none of the evidence was sufficiently complex to warrant striking an otherwise valid jury notice.

The parties proposed to tender reports from at least 13 experts at trial. Given that the trial had been adjourned, there would likely be additional expert reports and rebuttal reports filed.

The judge agreed with the Plaintiff that her current condition would require the jury to engage in a prolonged examination of some of the medical reports. To decide whether her complex psychiatric disorder was caused by the accidents, the jury would be required to undertake something of a scientific investigation. In addition, the causation and apportionment issues in this case were relatively complex, with the potential for liability to be found for one accident and not the other, and the possibility of non-tortious intervening events, including the Plaintiff’s adverse reaction to the flu shot.

However, the judge was not persuaded that the examination of the medical reports or the scientific investigation could not conveniently be undertaken by a jury. Nor was he persuaded that the issues were so intricate or complex that the trial should be heard by a judge without a jury.

The judge did not think it was necessary for the jury to fully understand the neuroscience or the tests that the experts administered to make findings about the Plaintiff’s cognitive functioning and whether any impairment was caused by the accidents. It was the job of the experts and counsel to explain the science to the jury.

The jury would need to sort through various events in the Plaintiff’s life to make a finding on causation. They would have the benefit of instructions by the trial judge on the law, and their ultimate determination on this issue would largely be one of common sense. Once that determination was made, the jury would need to consider the vocational assessments, functional capacity evaluations, and cost of future care report. None of that evidence, or any of the conflict in that evidence, was out of the ordinary for any personal injury case.

For those reasons, the judge dismissed the Plaintiff’s application to strike out the jury notice.