Yin v. Lewin, (2006) 403 A.R. 79 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 14, 2005
• Citations: (2006), 403 A.R. 79 (QB);2006 ABQB 402

Yin v. Lewin (2006), 403 A.R. 79 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.075

Saroth Yin (plaintiff/applicant) v. Leaford Lewin (defendant/respondent)

(0201 00579)

Kishore Polra (plaintiff/applicant) v. Royce Kirby (defendant/respondent)

(0301 01878; 2006 ABQB 402)

Indexed As: Yin v. Lewin

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

June 2, 2006.

Summary:

Defendants in actions for damages exceeding $10,000 for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury. The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to s. 2(e) of the Canadian Bill of Rights as adopted by the Alberta Bill of Rights via its preamble, s. 7 of the Charter and s. 1(b) of the Alberta Bill of Rights or s. 15(1) of the Charter.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights (incl. choice of work) - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 7 of the Charter - The Alberta Court of Queen's Bench dismissed the application - Clearly, s. 17(1) did not deprive the plaintiffs of their right to life - The plaintiffs took issue with being compelled to submit to a civil jury trial because they perceived that civil trial by jury would result in lower damage awards than trials by a judge sitting alone - As such, the plaintiffs were asserting a right to proceed in a manner that would maximize compensation - This was a purely economic right that was not protected by s. 7 - See paragraphs 38 to 43.

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 15(1) of the Charter - The plaintiffs submitted that s. 17(1) discriminated against plaintiffs alleging musculo-ligamentous injuries in motor vehicle negligence actions by compelling their submission to a civil jury trial - The plaintiffs asserted that there was a marked propensity of civil juries to make damage awards lower than those of justices sitting alone and that this was symptomatic of widely held negative attitudes toward such plaintiffs - Thus, the effect of s. 17(1) was differential access to a fair trial on the basis of physical disability - The Alberta Court of Queen's Bench dismissed the application - To found a discrimination claim, there had to be a conflict between the purpose or effect of the impugned law and the purpose of s. 15(1) - Because s. 17(1) contemplated applications by either a plaintiff or a defendant, it did not conflict with s. 15(1) - Further, the plaintiffs failed to establish that civil jury trials were unfair or less fair than civil trials by a judge alone or that civil damage awards were inferior to or less fair than damage awards by justices sitting alone - See paragraphs 66 to 75.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See Civil Rights - Topic 908 ].

Civil Rights - Topic 1101

Discrimination - Civil proceedings - General - [See Civil Rights - Topic 908 ].

Civil Rights - Topic 3227

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - Right to jury - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 7 of the Charter - The Alberta Court of Queen's Bench dismissed the application - The court rejected the argument that the secrecy of civil jury deliberations was contrary to the principles of fundamental justice because the jury's reasons were not reviewable on appeal except to the extent that an appellate court could determine the jury's findings of facts and reasoning from the verdict itself - The court found the reasoning in R. v. Pan (R.W.); R. v. Sawyer (B.) (S.C.C.) that, in the criminal context, the rule of jury secrecy was consistent with the principles of fundamental justice to be persuasive in the civil context - While the Charter did not guarantee the right to be tried by a civil jury, it was a substantive right of great importance - There was a significant commonality in the rationales underlying both criminal and civil juries - See paragraphs 44 to 49.

Civil Rights - Topic 3227

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - Right to jury - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 7 of the Charter - The Alberta Court of Queen's Bench dismissed the application - The court rejected the argument that, because civil juries did not provide reasons for their decisions (particularly civil damage awards), they were in violation of the principle of fundamental justice which required that decision-makers, including civil juries, had to identify the evidence on which their decisions were based - Simply because civil juries were not required to provide reasons did not render the civil jury process unfair - Civil damage awards were reviewable on appeal to the extent that an appellate court could glean the jury's findings of fact and reasoning from the verdict itself - In a typical civil jury trial, the evidence on which the jury relied was clear from the record - See paragraphs 50 to 55.

Civil Rights - Topic 3227

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - Right to jury - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 7 of the Charter - The plaintiffs submitted that civil juries were less able than justices sitting alone to make just decisions, particularly just damage awards, because (i) they did not possess legal expertise and (ii) they were incapable of dealing with complex evidence - Thus, civil juries operated contrary to the principles of fundamental justice - The Alberta Court of Queen's Bench dismissed the application - The court indicated that civil juries in personal injury actions should be given guidance as to the appropriate range for general damages - However, binding authorities held that civil juries operating without guidance were as able as justices sitting alone to make just damage awards - Thus, the court was compelled to reject the first argument - The second argument was a non-starter because, under s. 17(1), an application for a jury trial could be rejected if the action was too complex - See paragraphs 56 to 63.

Civil Rights - Topic 8006

Canadian or provincial bill of rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - [See Statutes - Topic 1831 ].

Damages - Topic 1681

General damages - Evidence - General - [See Evidence - Topic 2245 ].

Evidence - Topic 2245

Special modes of proof - Judicial notice - Particular matters - Judicial proceedings (incl. fact findings in) - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - On an application by the plaintiffs for a declaration that s. 17(1) was inoperable due to certain civil rights violations, the Alberta Court of Queen's Bench took judicial notice that (i) civil jury trials were lengthier and costlier than civil trials tried by a judge alone, (ii) most motor vehicle collision negligence actions were defended by insurance companies and (iii) there had recently been a significant increase in applications for civil jury trials by defendants in motor vehicle collision negligence actions - While the court found that there was some publicity of the insurance industry's campaign to limit general damages in such actions, the court was not prepared to find that the publicity was widespread or could be characterized as propaganda or falsehoods - The court also declined to find that civil juries had repeatedly made unreasonably low general damage awards to plaintiffs in motor vehicle collision negligence actions - See paragraphs 21 to 26.

Practice - Topic 5105

Juries and jury trials - Right to a jury - When available - [See Civil Rights - Topic 783 , Civil Rights - Topic 908 , all Civil Rights - Topic 3227 and Statutes - Topic 1831 ].

Practice - Topic 5108

Juries and jury trials - Right to a jury - Evidence and proof - [See Evidence - Topic 2245 ].

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - Defendants in actions for damages for personal injuries sustained in motor vehicle accidents applied under s. 17(1) of the Jury Act to have the actions tried by a jury - The plaintiffs sought a declaration that s. 17(1) was inoperable as being contrary to, inter alia, s. 2(e) of the Canadian Bill of Rights (right to a fair hearing) as adopted by the Alberta Bill of Rights via its preamble - The Alberta Court of Queen's Bench dismissed the application, finding that s. 2(e) did not apply to the Jury Act - The protection of s. 2(e) to a fair hearing where only economic interests were at stake went beyond that of the Charter - However, s. 2(e) applied only to federal laws - While the general language of the Alberta Bill's preamble evinced a legislative intention to mirror the Canadian Bill in relation to Alberta laws, the specific language of s. 2 of the Alberta Bill clearly fell short of doing so - Therefore, the court could not find that the preamble to the Alberta Bill incorporated s. 2(e) of the Canadian Bill - See paragraphs 27 to 34.

Statutes - Topic 4606

Operation and effect - Legislation by reference - General - What constitutes legislation or incorporation by reference - [See Statutes - Topic 1831 ].

Cases Noticed:

Duff v. Oshust (2005), 381 A.R. 386; 52 Alta. L.R.(4th) 190; 2005 ABQB 117, refd to. [para. 1].

Shaw v. Standard Life Assurance Co. (2005), 398 A.R. 181; 2006 ABQB 156, refd to. [para. 1].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314; 2000 SCC 2, refd to. [para. 3, footnote 1].

R. v. Spence (S.A.) (2005), 342 N.R. 126; 342 O.A.C. 150; 202 C.C.C.(3d) 1; 2005 SCC 71, refd to. [para. 5, footnote 2].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 5, footnote 2].

Turner v. Van Meter (1905), 2 W.L.R. 345 (N.W.T.S.C.), refd to. [para. 8].

Hubbard v. Edmonton (City), [1917] 3 W.W.R. 732 (Alta. C.A.), refd to. [para. 8].

Hodder v. Lee (1913), 3 W.W.R. 1041 (Alta. T.D.), refd to. [para. 9].

Salter v. Calgary (City) (1916), 10 W.W.R. 173 (Alta. C.A.), refd to. [para. 9].

Godfrey v. Marshall, [1917] 1 W.W.R. 1097 (Alta. T.D.), refd to. [para. 9].

Luong v. Mawson et al. (2000), 255 A.R. 299; 220 W.A.C. 299 (C.A.), refd to. [para. 9].

Pendergras and Presley v. McGrath and Tilden Rent A Car Co. (1988), 86 A.R. 291 (C.A.), leave to appeal refused [1988] 2 S.C.R. vii; 97 N.R. 396; 92 A.R. 320, folld. [para. 12].

Nguyen v. Collette (2002), 323 A.R. 284; 219 D.L.R.(4th) 135; 2002 ABQB 841, refd to. [para. 12].

Ginter et al. v. Sidhu et al. (2003), 333 A.R. 246; 2003 ABQB 198, refd to. [para. 12].

Hollebeke v. Breeze et al. (2003), 345 A.R. 363; 2003 ABQB 238, refd to. [para. 12].

Gagnon v. Frey et al., [2005] A.R. Uned. 35; 2005 ABCA 106, refd to. [para. 12].

Paesch v. Teskey, [2005] A.R. Uned. 95; 2005 ABCA 209, leave to appeal refused (2005), 348 N.R. 198 (S.C.C.), refd to. [para. 12].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 22].

Palpal-Latoc v. Berstad, [2004] A.R. Uned. 36; 2004 ABCA 92, leave to appeal refused, [2004] 3 S.C.R. xi; 333 N.R. 193; 367 A.R. 119; 346 W.A.C. 119, refd to. [para. 26].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 32].

Attorney General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 (H.L.), refd to. [para. 32].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 34].

Kingsway General Insurance Co. v. Alberta (2005), 258 D.L.R.(4th) 507; 2005 ABQB 662, refd to. [para. 34].

Medical Services Commission (B.C.) et al. v. Wilson (1988), 53 D.L.R.(4th) 171 (B.C. C.A.), leave to appeal refused [1988] 2 S.C.R. viii; 92 N.R. 400, not folld. [para. 36].

Budge v. Workers' Compensation Board (Alta.) (1991), 111 A.R. 228 (C.A.), refd to. [para. 37].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 39].

Mussani v. College of Physicians and Surgeons (Ont.) (2004), 193 O.A.C. 23; 74 O.R.(3d) 1 (C.A.), refd to. [para. 39].

British Columbia Teachers' Federation et al. v. Board of Education of School District No. 39 (Vancouver) et al. (2003), 178 B.C.A.C. 250; 292 W.A.C. 250; 224 D.L.R.(4th) 63; 2003 BCCA 100, leave to appeal refused [2003] 3 S.C.R. v; 326 N.R. 200; 207 B.C.A.C. 319; 341 W.A.C. 319, refd to. [para. 39].

Vysek v. Nova Gas International Ltd. et al. (2002), 303 A.R. 209; 273 W.A.C. 209; 2002 ABCA 112, refd to. [para. 41].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 43].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 43].

Ward v. James, [1966] 1 Q.B. 273 (C.A.), refd to. [para. 44].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, consd. [para. 45].

King v. Colonial Homes Ltd., [1956] S.C.R. 528, refd to. [para. 47].

Cocks v. Lemieux (1965), 52 W.W.R.(N.S.) 254 (Alta. C.A.), refd to. [para. 47].

Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 48].

WBA Management Society v. Beverage Container Management Board (Alta.) (2003), 336 A.R. 1; 2003 ABQB 551, dist. [para. 50].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 58].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, folld. [para. 59].

Brisson v. Brisson (2002), 168 B.C.A.C. 255; 275 W.A.C. 255; 213 D.L.R.(4th) 428; 2002 BCCA 279, refd to. [para. 60].

Cheema v. Delo, [2005] A.R. Uned. 211; 2005 ABQB 152, refd to. [para. 63].

Chan v. Smith, [2005] A.R. Uned. 322; 2005 ABQB 263, refd to. [para. 63].

Hantzinikolas v. Guest et al., [2006] A.R. Uned. 258; 2006 ABQB 157, refd to. [para. 63].

Al-Rekabi et al. v. Guinn et al. (2002), 323 A.R. 24; 22 C.P.C.(5th) 298; 2002 ABQB 617, refd to. [para. 64].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, appld. [para. 69].

Statutes Noticed:

Jury Act, R.S.A. 2000, c. J-3, sect. 17 [para. 15].

Authors and Works Noticed:

Bouck, John C., The Civil Jury: Rescuing an Endangered Species (1991), 19 Barrister 10, p. 10 [para. 6].

Devlin, Patrick, Trial By Jury (1956), pp. 5 to 12 [para. 5]; 130 to 131 [para. 6].

Hans, Valerie P., and Vidmar, Neil, Judging the Jury (1986), pp. 21 to 29 [para. 5].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (2005 Looseleaf Update, Release 1), paras. 31.3(b), 32.1, 32.4, 44.2 [paras. 29, 34]; 44.7(b), 44.8 [para. 41]; 44.9 [paras. 29, 34, 40].

Ontario, Law Reform Commission, Report on the Use of Jury Trials in Civil Cases (1996), pp. 27, 55 [para. 24, footnote 3].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 296 to 299 [para. 31]; 299 [para. 32].

Sward, Ellen E., The Decline of the Civil Jury (2001), pp. 68 to 75 [para. 5]; 75 to 76 [para. 6].

Counsel:

Harris N. Hanson (Hanson Associates), for the plaintiffs/applicants;

David M. Pick (Brownlee LLP), for the defendants/respondents;

Rod Wiltshire (Alberta Justice), for the intervener, Minister of Justice and Attorney General of Alberta.

This application was heard on November 14, 2005, by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for decision on June 2, 2006.