Goulbourne v. Buoy et al.,

• Judge: Wachowich
• Neutral Citation: 2003 ABQB 409
• Citation: 2003 ABQB 409,(2003), 338 A.R. 176 (QB),338 AR 176,(2003), 338 AR 176 (QB),338 A.R. 176
• Date: 10 March 2003
• Court: Court of Queen's Bench of Alberta (Canada)

Goulbourne v. Buoy (2003), 338 A.R. 176 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MY.167

Georgia Goulbourne (plaintiff) v. Brian David Buoy and Enviro Scan Technologies Inc. (defendants)

(0003-24261; 2003 ABQB 409)

Indexed As: Goulbourne v. Buoy et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wachowich, C.J.Q.B.

May 13, 2003.

Summary:

The plaintiff brought a motor vehicle negligence action for damages against the defendants. Liability was admitted. The defendants' application for a jury trial was granted. The plaintiff applied for a summary trial and requested that the previous order granting a jury trial be vacated.

The Alberta Court of Queen's Bench dismissed the application. In situations of conflict where a party was entitled to a jury trial under the Jury Act, but where a summary trial would otherwise be ordered, the right to a jury trial prevailed.

Practice - Topic 15

General principles and definitions - Conflict between practice rules and statutory rules - [See Practice - Topic 5105 ].

Practice - Topic 5105

Juries and jury trials - Right to a jury - When available - The defendants in a motor vehicle negligence action where liability was admitted obtained a court order for a jury trial - The plaintiff had not opposed the application - The plaintiff now sought a summary trial and requested revocation of the order for a jury trial - Rule 158.3 provided that a summary trial was to be heard by a judge alone despite the existence of an order for a jury trial - The Alberta Court of Queen's Bench dismissed the application - The court stated that "there is a conflict between the Summary Trial Rules and the Jury Act in situations such as this where the parties qualify for a civil jury under s. 17(1) of the [Jury] Act and where a summary trial otherwise would be ordered. The conflict must be resolved in favour of a jury trial, however, because the Summary Trial Rules do not have the force of statute. ... An exception applies where the subordinate legislation has been statutorily validated. ... it would be helpful if the Jury Act was amended to allow the court to exercise a broader scope of discretion in cases which it considers suitable for summary trial. In the alternative, the Summary Trial Rules could be validated." - See paragraphs 1 to 45.

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - [See Practice - Topic 5105 ].

Cases Noticed:

Noland v. Telila et al. (2003), 347 A.R. 217, refd to. [para. 1].

Elliott v. Amante (2001), 306 A.R. 82 (Q.B.), refd to. [para. 12].

Jabrica v. Krueger (2001), 306 A.R. 113 (Q.B.), refd to. [para. 12].

Evans v. Stirling (2001), 306 A.R. 120 (Q.B.), refd to. [para. 12].

Forrest v. Ostrovsky et al., [2001] A.R. Uned. 515 (Q.B.), refd to. [para. 12].

Abbenbroek v. McCusker (2002), 328 A.R. 83 (Q.B.), refd to. [para. 12].

Flaviano v. Moghaddami (2000), 263 A.R. 340 (Q.B.), refd to. [para. 13].

Hajjar v. Repetowski (2001), 319 A.R. 251; 91 Alta. L.R.(3d) 358 (Q.B.), refd to. [para. 14].

Elliott v. Amante, [2000] A.R. Uned. 400; 90 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 17].

Favel et al. v. Shepherd et al. (1997), 202 A.R. 220 (Q.B.), refd to. [para. 22].

Shilmover v. Schubert (2000), 273 A.R. 359 (Q.B.), refd to. [para. 22].

Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R.(2d) 202 (C.A.), refd to. [para. 27].

590988 Alberta Ltd. et al. v. 728699 Alberta Ltd. et al., [1999] A.R. Uned. 222; 30 C.P.C.(4th) 201 (Q.B.), refd to. [para. 30].

St. Denis v. Trumley - see St. Denis v. Trumbley.

St. Denis v. Trumbley (1977), 4 A.R. 212 (C.A.), refd to. [para. 42].

Reference Re Firearms Act (Can.) (1996), 193 A.R. 105; 135 W.A.C. 105 (C.A.), refd to. [para. 42].

Statutes Noticed:

Jury Act, R.S.A. 2000, c. J-3, sect. 17(1)(b) [para. 7].

Rules of Court (Alta.), rule 158.3 [para. 6].

Counsel:

Chang D. Du (McLennan Ross), for the plaintiff;

William Hembroff (Bryan & Co.), for the defendants.

This application was heard on March 10, 2003, before Wachowich, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 13, 2003.