Mang et al. v. Moscovitz et al., (1980) 28 A.R. 148 (QB)

• Judge: McFadyen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 03, 1980
• Citations: (1980), 28 A.R. 148 (QB)

Mang v. Moscovitz (1980), 28 A.R. 148 (QB)

MLB headnote and full text

Mang et al. v. Moscovitz et al.

Indexed As: Mang et al. v. Moscovitz et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

McFadyen, J.

January 3, 1980.

Summary:

The plaintiffs brought an application that an action be tried by a civil jury pursuant to s. 32 of the Jury Act, R.S.A. 1970, c. 194. The action involved a tort allegedly committed by ten medical practitioners and a hospital, whereby a patient suffered brain damage during or following a tubal ligation and therapeutic abortion.

The Alberta Court of Queen's Bench dismissed the application pursuant to s. 32(2) of the Act. The court stated that the evidence would involve a long, complex, difficult and scientific investigation to determine the relevant facts regarding the event and to determine if there was departure from the professional skill, knowledge, and care required in the medical specialties involved. The court held that the investigation could not be conveniently determined by a jury.

Practice - Topic 5105

Juries and jury trials - Right to a jury - Cases where there is no right to a jury trial - The plaintiffs brought an application for an order that their tort action against ten medical practitioners and a hospital be tried before a civil jury - The Alberta Court of Queen's Bench held that the trial would involve a scientific and long investigation that could not conveniently be made by a jury and dismissed the application - See paragraphs 2 to 6.

Practice - Topic 5108

Juries and jury trials - Right to a jury trial - Evidence and proof - The Alberta Court of Queen's Bench stated that the onus under Alberta legislation is upon the party resisting a jury trial to show that a jury is not a suitable trier of facts or assessor of damages - See paragraph 2.

Cases Noticed:

Wanger v. Marien, 78 D.L.R.(3d) 201, folld. [para. 2].

Statutes Noticed:

Jury Act, R.S.A. 1970, c. 194, sect. 32 [para. 2].

Counsel:

J. Fitzpatrick and R.B. Low, for the applicants;

G. Turnbull, for the respondents.

This case was heard before McFADYEN, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary.

The oral judgment of McFADYEN, J., was delivered in chambers, at Calgary, Alberta, on January 3, 1980.