Anderson v. Cyr et al., 2014 NSCA 51

• Judge: Fichaud, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 28, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 51;(2014), 345 N.S.R.(2d) 329 (CA)

Anderson v. Cyr (2014), 345 N.S.R.(2d) 329 (CA);

    1092 A.P.R. 329

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.054

Mary Cyr and Enterprise Rent a Car (appellants) v. Heath Anderson (respondent)

(CA 414575; 2014 NSCA 51)

Indexed As: Anderson v. Cyr et al.

Nova Scotia Court of Appeal

Fichaud, Farrar and Bryson, JJ.A.

May 28, 2014.

Summary:

The plaintiff brought a negligence action for damages against the defendants for injuries suffered in a motor vehicle accident. The defendants admitted liability, but disputed the quantum of damages claimed, arguing that not all of the plaintiff's medical problems were caused by the accident. The defendants sought a jury trial, which was their prima facie right under s. 34 of the Judicature Act. The plaintiff moved to strike the jury notice.

The Nova Scotia Supreme Court, in a judgment reported (2013), 328 N.S.R.(2d) 137; 1039 A.P.R. 137, struck the jury notice. The complexity of the medical evidence and legal issues resulted in justice requiring a trial by judge alone rather than by jury. The defendants appealed.

The Nova Scotia Court of Appeal allowed the appeal and reinstated the jury notice. The trial judge erred in finding that there were complex medical and legal issues, which was the basis for striking the jury notice. The issues arising in this case were purely factual.

Practice - Topic 5100

Juries and jury trials - Right to a jury - General (incl. when jury trial appropriate) - The plaintiff brought a negligence action for damages against the defendants for injuries suffered in a motor vehicle accident - The defendants admitted liability, but disputed the quantum of damages claimed, arguing that not all of the plaintiff's medical problems were caused by the accident - The defendants sought a jury trial, which was their prima facie right under s. 34 of the Judicature Act - The trial judge allowed the plaintiff's motion to strike the jury notice - The trial was scheduled to take 4-5 weeks - Currently, there were more than 50 reports from 26 experts, with more to come - The case involved an unusual and complex medical condition and its causation - There was conflicting or contradictory expert opinions on complicated medical diagnoses and causation theories - Given the high volume of medical documentation and highly technical jargon, it would be a tremendous challenge for the average juror to absorb, understand and retain such arcane medical evidence over the 4-5 week period, especially respecting a medical condition they would likely be hearing about for the first time - Unlike a jury, a judge sitting alone had the opportunity to reserve judgment to "review, reflect, analyse and weigh the competing expert theories of diagnosis and causation in whatever time frame is reasonably needed" - The case involved complex medical questions that could not be readily understood and answered by a jury - The case would be better heard by a judge sitting alone - The Nova Scotia Court of Appeal reinstated the jury notice - The trial judge erred in finding that there were complex medical and legal issues, which was the basis for striking the jury notice - The issues arising in this case were purely factual.

Practice - Topic 5100

Juries and jury trials - Right to a jury - General (incl. when jury trial appropriate) - The Nova Scotia Court of Appeal made the following recommendations to trial judges on the considerations that should inform their decision on whether to strike a jury notice: "1. Parties have a prima facie , substantive right to a jury trial in Nova Scotia. 2. In determining whether justice requires a jury notice to be struck a court must identify situations and provide cogent reasons for why the issues are too complex to be decided by a jury. 3. Assessment of complexity involves a consideration of the legal, factual and evidentiary issues in each case. 4. Factual complexity, by itself, will rarely be sufficient to strike a jury. For example, cases calling for medical, scientific or other specialized knowledge on the factual issues with conflicting and contradictory opinions from experts should not, save in the rarest of cases, be taken from a jury. 5. In cases where there are issues of fact and the issues of law can be isolated from the issues of fact, it would, again, be rare to strike the jury notice. 6. The fact that judicial instruction on the law may be difficult is not itself a ground for striking a jury. 7. If the issues of fact are difficult to isolate and are clearly interwoven with the issues of law, the motions judge must decide if the issue has risen to a level that it ought to be taken from the jury, always keeping in mind that it is a prima facie and substantive right that a party is entitled to have a trial by jury. 8. An inordinately long trial involving voluminous documentation and complex legal issues, for practical reasons, may simply make a jury trial unworkable and the jury notice should be struck. 9. The length of the trial is not, itself, a reason to strike the jury notice. 10. The time for rendering a decision is not a determining factor in striking a jury notice." - See paragraph 96.

Practice - Topic 5102

Juries and jury trials - Right to a jury - Setting aside a jury notice - [See both Practice - Topic 5100 ].

Cases Noticed:

Anderson v. QEII Health Sciences Centre et al. (2010), 287 N.S.R.(2d) 316; 912 A.P.R. 316; 2010 NSCA 7, refd to. [para.17].

Ellph.com Solutions Inc. et al. v. Aliant Inc. et al. (2012), 320 N.S.R.(2d) 244; 1014 A.P.R. 244; 2012 NSCA 89, refd to. [para. 23].

Ligate v. Richardson (1997), 101 O.A.C. 161 (C.A.), refd to. [para. 24].

Geophysical Service Inc. v. Sable Mary Seismic Inc. et al., [2008] N.S.R.(2d) Uned. 164; 2008 NSSC 79, affd. (2008), 269 N.S.R.(2d) 69; 860 A.P.R. 69; 2008 NSCA 83, leave to appeal denied [2012] 3 S.C.R. xiii, refd to. [para. 29].

Marshall v. Curry (No. 2), [1933] 3 D.L.R. 198 (N.S.C.A.), refd to. [para. 30].

King v. Colonial Homes Ltd., [1956] S.C.R. 528, refd to. [para. 34].

MacNeil v. Hill the Mover (Canada) Ltd. (1961), 27 D.L.R.(2d) 734 (N.S.C.A.), refd to. [para. 34].

MacIntyre v. Nova Scotia Power Corp. (1995), 145 N.S.R.(2d) 209; 418 A.P.R. 209 (S.C.), refd to. [para. 35].

Quinn Estate v. Bitar Deli Ltd. (2009), 286 N.S.R.(2d) 96; 909 A.P.R. 96; 2009 NSSC 412, refd to. [para. 36].

Leadbetter and Leadbetter v. Brand (1979), 37 N.S.R.(2d) 660; 67 A.P.R. 660 (T.D.), refd to. [para. 44].

Cowles et al. v. Balac et al. (2006), 216 O.A.C. 268; 83 O.R.(3d) 660 (C.A.), refd to. [para. 46].

Smith (A.D.) Lumber Ltd. v. General Home Systems Ltd. (1986), 72 N.S.R.(2d) 333; 173 A.P.R. 333 (T.D.), refd to. [para. 51].

Begg v. Halifax County (Municipality) (1997), 159 N.S.R.(2d) 394; 468 A.P.R. 394 (C.A.), refd to. [para. 52].

Wentzell v. Kydd (1997), 160 N.S.R.(2d) 298; 473 A.P.R. 298 (S.C.), refd to. [para. 54].

Shephard v. Taylor and Roman Catholic Episcopal Corporation (1984), 47 Nfld. & P.E.I.R. 183; 139 A.P.R. 183 (P.E.I.S.C.), refd to. [para. 54].

Atkinson v. Flynn (1998), 167 N.S.R.(2d) 190; 502 A.P.R. 190 (S.C.), affd. (1998), 170 N.S.R.(2d) 385; 515 A.P.R. 385 (C.A.), refd to. [para. 55].

Crocker v. MacDonald and Myrden (1992), 116 N.S.R.(2d) 184; 320 A.P.R. 184 (T.D.), refd to. [para. 58].

Anderson v. QEII Health Sciences Centre et al. (2009), 281 N.S.R.(2d) 324; 893 A.P.R. 324; 2009 NSSC 242, affd. (2010), 287 N.S.R.(2d) 316; 912 A.P.R. 316; 2010 NSCA 7, refd to. [paras. 59, 84].

Green v. T&T Inspections & Engineering Ltd. et al. (2012), 315 N.S.R.(2d) 173; 998 A.P.R. 173; 2012 NSSC 131, refd to. [para. 60].

Wall v. 679927 Ontario Ltd. et al. (2005), 239 N.S.R.(2d) 47; 760 A.P.R. 47; 2005 NSSC 276, revd. (2006), 242 N.S.R.(2d) 300; 770 A.P.R. 300; 2006 NSCA 36, refd to. [para. 64].

Huntley et al. v. Hogeterp et al. (2007), 266 N.S.R.(2d) 159; 851 A.P.R. 159; 2007 NSSC 221, refd to. [para. 67].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 52.02(5) [para. 38].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Scott C. Norton, Q.C., and Scott Campbell, for the appellants;

Robert C. Dickson, Q.C., and Sean Layden, Q.C., for the respondent.

This appeal was heard on December 2, 2013, at Halifax, N.S., before Fichaud, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On May 28, 2014, Farrar, J.A., delivered the following judgment for the Court.