Hamstra et al. v. British Columbia Rugby Union et al., (1997) 211 N.R. 89 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 23, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 211 N.R. 89 (SCC);34 BCLR (3d) 10;145 DLR (4th) 193;35 CCLT (2d) 1;211 NR 89;89 BCAC 161;[1997] 7 WWR 92;[1997] SCJ No 43 (QL);[1997] 1 SCR 1092;1997 CanLII 391 (SCC)

Hamstra v. BCRU (1997), 211 N.R. 89 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

The British Columbia Rugby Union and Brian Rigby (appellants) v. Mark Hamstra, a minor suing by his Father and Guardian ad litem Hendrik Hamstra and the said Hendrik Hamstra (respondents)

(File No. 24743)

Indexed As: Hamstra et al. v. British Columbia Rugby Union et al.

Supreme Court of Canada

L'Heureux-Dubé, Sopinka Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

April 24, 1997.

Summary:

The plaintiff Mark Hamstra was rendered a quadriplegic from injuries sustained in a rugby game. The game was held under the auspices of the British Columbia Rugby Union. Rigby was one of the coaches who supervised the match on behalf of the Rugby Union. Hamstra and his father (the plain­tiffs) sued the Rugby Union, Coach Rigby and a school board (the defendants) for damages. The trial judge discharged the jury during trial because of references made to insurance. The judge, continuing alone, ultimately dismissed the action. The plain­tiffs appealed.

The British Columbia Court of Appeal, in a decision reported 57 B.C.A.C. 202; 94 W.A.C. 202, allowed the appeal holding that the trial judge erred in discharging the jury. The court ordered a new trial. (Additional reasons were reported at 60 B.C.A.C. 158; 99 W.A.C. 158). The Rugby Union and Rigby appealed.

The Supreme Court of Canada allowed the appeal, set aside the order for a new trial and referred the matter back to the Court of Appeal to deal with the other issues raised on the original appeal before that court.

Courts - Topic 79

Stare decisis - Authority of judicial de­cisions - Prior decisions of same court - Supreme Court of Canada - [See first Practice - Topic 5170 ].

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - Where reference to insurance - In Bowhey v. Theakston (1951) the Supreme Court of Canada ruled that a jury should be dis­charged automatically if the jury became aware that the defendant was insured - In 1997, the Supreme Court of Canada over­ruled Bowhey v. Theakston - See para­graphs 11 to 26.

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - Where reference to insurance - The Supreme Court of Canada held that it was no longer a rule that a jury should au­tomatically be discharged if the jury became aware that the defendant was insured - The decision whether to dis­charge a jury is a matter within the trial judge's discretion - In exercising this discretion, the judge should consider whether in the circumstances the reference to insurance would likely result in real prejudice to the defendant (i.e., whether the reference has caused a substantial wrong or miscarriage of justice such that it would be unfair to continue with the present jury) - In assessing the likelihood of prejudice the judge should consider whether the fact that the defendant is insured is well known - If the judge de­termines that the reference to insurance will likely result in prejudice, the jury should not be discharged automatically, but only discharged if the judge considers that the prejudice cannot be cured - See paragraphs 11 to 26.

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - Where reference to insurance - The plain­tiff was injured in a rugby match - The plaintiff and his father sued a rugby or­ganization, a coach and a school board (the defendants) for damages - During trial two references were made to in­surance - The first by a rugby player who said that he gave a statement to an in­surance adjuster - The second reference was by a school board witness who said he was not concerned about the rugby organization's finances because he assumed insurance would pay - The trial judge discharged the jury, continued alone and dismissed the action - The appeal court set aside the decision and ordered a new trial - The Supreme Court of Canada held that the trial judge exercised his dis­cretion, considered the prejudice to the rugby organization and determined that it was appropriate to discharge the jury - The judge did not err in discharging the jury and the Court of Appeal was wrong to intervene - See paragraphs 27 to 34.

Cases Noticed:

O'Neil v. Pacific Great Eastern Railway (1971), 24 D.L.R.(3d) 628 (B.C.C.A.), refd to. [para. 8].

Bowhey v. Theakston, [1951] S.C.R. 679, affing. [1950] O.R. 524 (C.A.), over­ruled [para. 11].

Koebel v. Rive, [1958] O.R. 448 (C.A.), refd to. [para. 12].

Loughead v. Collingwood Shipbuilding Co. (1908), 16 O.L.R. 64 (Div. Ct.), affd. (1908), 12 O.W.R. 697 (C.A.), refd to. [para. 12].

Wellington v. Lake George Mines Pty. Ltd., [1962] S.R. (N.S.W.) 326, refd to. [para. 13].

Hellenius v. Lees, [1970] 1 O.R. 273 (C.A.), affd. [1972] 2 S.C.R. 165, refd to. [para. 14].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 15].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385, refd to. [para. 15].

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, refd to. [para. 15].

Morin v. Rochon (1983), 42 O.R.(2d) 301 (H.C.), refd to. [para. 16].

Jackson et al. v. Inglis (1985), 7 O.A.C. 377 (C.A.), refd to. [para. 16].

Michaud v. Wales (1991), 8 C.C.L.I.(2d) 57 (Ont. Gen. Div.), refd to. [para. 16].

Cameron v. Excelsior Life Insurance Co. (1978), 27 N.S.R.(2d) 218; 41 A.P.R. 218 (T.D.), refd to. [para. 16].

Currie v. Nova Scotia Trust Co. (1969), 1 N.S.R. 274 (T.D.), refd to. [para. 16].

Schon v. Hodgins, [1988] O.J. No. 839 (Dist. Ct.), refd to. [para. 16].

Federal Business Development Bank v. Lakeland Drilling Ltd. et al. (1985), 61 A.R. 381 (Q.B.), refd to. [para. 16].

Alden v. Hutcheon, [1960] B.R. 539 (Qué. Q.B.), refd to. [para. 16].

Minister of Indian Affairs and Northern Development v. Ranville et al., [1982] 2 S.C.R. 518; 44 N.R. 616, refd to. [para. 18].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 41(6) [para. 6].

Authors and Works Noticed:

McCormick, Charles Tilford, McCormick on Evidence (4th Ed. 1992), vol. 1, pp. 856, 857, 858 [para. 13]; 859 [para. 24].

Sopinka, John, The Trial of an Action (1981), pp. 31, 32 [para. 13]; 33 [para. 21].

Counsel:

David J. Whitelaw and T. Ryan Darby, for the appellant, British Columbia Rugby Union;

Eric A. Dolden and Karen Liang, for the appellant, Brian Rigby;

Robert D. Gibbens, for the respondents.

Solicitors of Record:

Killam, Whitelaw & Twining, Vancouver, British Columbia, for the appellant, British Columbia Rugby Union;

Dolden, Walker, Folick, Vancouver, British Columbia, for the appellant, Brian Rigby;

Laxton & Company, Vancouver, British Columbia, for the respondents.

This appeal was heard on January 23, 1997, before L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. On April 24, 1997, Major, J., delivered the following judgment for the court in both official languages.