COURT FILE NO.: 50466/08
DATE: 2014/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Joseph Foniciello, Maria Foniciello, Mary Foniciello, Lucy Foniciello ,Tony Foniciello, Lindsay Foniciello, and Chelsea Price-Mullins, a Minor Plaintiff by her Litigation Guardian Mary Foniciello
Plaintiffs
- and -
James Bendall, Sandra Bendall, and 1177020 Ontario Inc., operating as Acculine Pavement Markings
Defendants
C. Richard and K. Book, for the Plaintiffs
J. Fitch and J. Taylor, for the Defendant Acculine Pavement Markings
HEARD at St. Catharines, Ontario: March 24, 2014
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON MOTION
INTRODUCTION
[1] This is my decision on the plaintiffs’ motion, brought at the start of the trial, to strike the jury notice that had been served by the defendant 1177020 Ontario Inc., operating as Acculine Pavement Markings (“Acculine”).
[2] The position of the plaintiffs is that the issues in this case are too complex for consideration by a jury. Counsel for the plaintiffs submits that the litigants would be better served if the jury was discharged and all issues were tried by a judge alone.
[3] Acculine submits that the issues in this case are not too complex and are issues that are routinely decided by a jury. Therefore, Acculine opposes the request to strike the jury notice at this stage, and asks that this court take a “wait and see” approach. In the alternative, Acculine requests an order bifurcating the trial so that the liability issues and some of the damages issues are tried by a jury, and the balance of the issues are tried by a judge.
THE BACKGROUND
[4] The plaintiff, Joseph Foniciello (“Foniciello”), was involved in a serious motor vehicle accident at approximately 2:30 a.m. on August 19, 2006, in the City of London, Ontario. Foniciello was operating a motorcycle eastbound on Bradley Avenue near Jalna Boulevard. The defendant James Bendall (“Bendall”) was operating a Dodge Caravan owned by Sandra Bendall, and was also eastbound on Bradley Avenue, following the Foniciello motorcycle.
[5] At the intersection of Bradley Avenue with Jalna Boulevard both drivers came upon a work site where employees of Acculine had been painting line markings on the roadway. Some of Acculine’s construction vehicles, with roof lights activated, were parked in the right eastbound lane on Bradley Avenue, and some of Acculine’s employees were in the vicinity of the construction vehicles.
[6] It is alleged that Foniciello slowed his motorcycle as he approached or passed Acculine’s vehicles and employees, but that Bendall did not slow down. It is alleged that Bendall was distracted by Acculine’s construction vehicles and was not keeping a proper lookout. Consequently, the Bendall vehicle struck the Foniciello vehicle from behind causing injury to Foniciello.
[7] In this action the plaintiffs allege negligence against both Bendall and Acculine. In particular, the plaintiffs allege that Acculine did not have appropriate traffic control or signage in place on the work site at the time of this accident. Acculine denies that it was negligent, and denies that it did, or omitted to do, anything that caused or contributed to this accident.
[8] As a result of this accident Foniciello was in hospital for a lengthy period of time, and has been diagnosed with a significant brain injury. The damages claimed by the plaintiffs include general damages, special damages, Family Law Act damages, past lost income, future lost income, and future care costs. The severity of Foniciello’s injury, and all aspects of the damages claimed, is in dispute.
[9] There will be two groups of participants at the trial; namely, the plaintiffs and Acculine. The other defendants are James Bendall and Sandra Bendall (“the Bendalls”). The Bendalls are still parties to this action, but the Bendalls have agreed to pay their policy limits to the plaintiffs in return for the plaintiffs agreeing to not pursue the Bendalls for any amount in excess of the Bendalls’ policy limits. However, the Crossclaim by Acculine against the Bendalls remains in place.
THE LAW REGARDING STRIKING A JURY NOTICE
[10] The most succinct statement of the law regarding striking a jury notice is set out in the case of Graham v. Rourke, 1990 7005 (ON CA), 75 O.R. (2d) 622 (OCA), at para. 6, as follows:
If a litigant is entitled to trial by jury, that right is a substantive one which should not be interfered with without just cause; King v. Colonial Homes Ltd. et al., 1956 13 (SCC), [1956] S.C.R. 528, at 533; 4 D.L.R. (2d) 561. When a trial judge is asked to discharge a jury, she or he must decide whether justice to the parties will be better served by the discharge or retention of the jury. The moving party bears the burden of persuasion and must be able to point to features in the legal or factual issues to be resolved, in the evidence, or the conduct of the trial, which merit the discharge of the jury: Majcenic v. Natale, 1967 267 (ON CA), [1968] 1 O.R. 189, at 201-202; 66 D.L.R. (2d) 50 (Ont. C.A.)….
[11] That test was restated in the more recent case of Cowles v. Balac, 2006 34916 (ON CA), 83 O.R. (3d) 660 (OCA), at paras. 36-37. Then, at para. 38, O’Connor J. wrote:
While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.
[12] On this motion there is no real dispute as to the law. The dispute is whether the plaintiffs have shown that there are legal, factual, or evidentiary issues that are so complex that they should not be tried by a jury.
THE DAMAGES ISSUES
[13] The plaintiffs have raised a large number of complexities with respect to the damages issues.
[14] The plaintiffs point out that the trier of fact in this case will be required to assess and evaluate a great deal of scientific evidence. The plaintiffs allege that Foniciello has suffered a serious brain injury. Therefore, in order for a jury to properly assess the plaintiffs’ damages, a jury must listen to, and try to understand, the expert witnesses who will attempt to educate the jury as to how a brain works, what the various parts of the brain do, how a brain injury occurs, and what effect an injury to the brain may have.
[15] The plaintiffs submit, and I agree, that it is absolutely essential that the jurors become properly and fully educated with respect to brain anatomy and brain function; otherwise, the jurors simply will not be able to assess the evidence in this case. I also agree that most jurors would not have any prior knowledge or experience regarding these matters, and therefore the education of the jurors must take place at the trial. I accept that it will be a formidable task to educate the jurors to the point at which they can reasonably deal with these issues.
[16] In addition, it must be remembered that the nature and extent of Foniciello’s injury is in dispute. This is not a matter of a jury simply taking uncontested instructions from an expert witness. Experts for the plaintiffs and for Acculine will likely not agree as to how the science applies to Foniciello’s brain injury. Therefore, it will be necessary for the jury to acquire a proper foundation of knowledge, and then use that knowledge to assess the evidence of competing experts. In my view, that will not be an easy task for the jury.
[17] Further, the actual science of diagnosing a brain injury is a complex and uncertain field. The plaintiffs have provided a list of 37 separate types of tests that were administered by Foniciello’s treating doctors for the purpose of diagnosing his brain injury. The interpretation of those tests is in dispute. This adds another layer of complexity to the damages issue.
[18] The plaintiffs also submit that there are complexities in this case because of the many treatment modalities. Foniciello has had and will continue to have neuropsychological testing, neuropsychological treatment, cognitive therapy, speech therapy, occupational therapy, and rehabilitation counselling. Each of these modalities will require the same type of education of the jury at trial as I have already discussed. Therefore, I find that these modalities add yet another layer of complexity to the damages claim.
[19] In my view, there are certainly some advantages to having a judge try a complicated scientific case, as opposed to having a jury try the case. A judge is trained to learn on the job, to take notes, to ask questions if he does not understand, and to educate himself. A jury does not have that training. It may be that some jurors can be fully trained at trial, but the litigants will never know if all of the jurors are in fact fully educated in the science before the jury reaches a decision.
[20] In that respect I accept and adopt a statement made by McEachern J. in the case of Wipfli v. Britten, 1981 615 (BC SC), [1982] 1 W.W.R. 709 (BCSC) at para. 43:
I do not believe that it will be convenient to make this scientific investigation with a jury. If the trial proceeds with a jury, and if it should last 25 days or thereabouts, the members of the jury whose note-taking ability is at least questionable will listen, usually in silence, to many days of scientific evidence about the matters mentioned above. They will then hear submissions pro and con which will compress this case the way counsel choose to compress it but not, perhaps, the way the jury would like to have it discussed. The jury will have practically no opportunity (except possibly for a few hesitant questions), to take part in the trial, and the jury will have no verbal interaction or opportunity to discuss this case with the witnesses or with counsel, as a judge has. The jury will then hear the judge’s best efforts to analyze and simplify the case, but it is doubtful if the case can properly be explained in a protracted monologue, keeping in mind that I have mentioned only some of the issues in the case.
[21] Further, I find that a judge has the advantage of, at the end of the trial, taking the time to reflect on the evidence, form preliminary conclusions, and then recheck the evidence, revise the conclusions, and eventually come to a just decision. A jury does not have that luxury. In that respect I adopt the comment made by McEachern J. in McDonald v. Smith, 1983 580 (BC SC), 48 B.C.L.R. 285 (BCSC) at para. 23:
Briefly, I think a case of this complexity cannot conveniently or suitably be tried and a proper conclusion assured to the parties when there is no opportunity for thoughtful and timely consideration and reconsideration, particularly after several days of evidence and the other proceedings which follow the completion of evidence. There must, in a case such as this, be an opportunity for thoughtful review after preliminary conclusions have been reached and there is too much risk of a compromise verdict being accepted by the jury or a majority of the jury under pressures of time and other personal consideration.
[22] In my view a trial that is filled with scientific evidence is one in which the trier of fact will require an indeterminate period of time to contemplate the evidence before reaching a final conclusion. This factor weighs in favour of discharging the jury.
[23] Counsel for Acculine submits, and I accept, that juries regularly hear and determine brain injury cases. However, I do not accept that brain injury cases are routine cases that are easily understood by anyone, let alone members of a jury. Whether or not a jury should try a brain injury case will often depend on the type of brain injury, and on the other complications and complexities in the case.
[24] Counsel for the plaintiffs refers to several factors in this case that make the damages claim more complex than a “routine” brain injury. These aspects of the case, it is submitted, make it risky to leave the assessment of damages to the jury.
[25] Specifically, since the motor vehicle accident Foniciello has been able to drive and has been able to obtain his driver’s license. However, the plaintiffs allege that there is scientific evidence that would show that Foniciello’s driving skill is something that is not affected by the part of his brain that was injured.
[26] Similarly, there will be evidence that Foniciello appears to be functioning well in everyday life. However, the neuropsychologists will say that Foniciello has “staged independence”. That is, Foniciello, as part of his therapy, is taught to act as if he is functioning well, or to create an illusion of normal functioning.
[27] The plaintiffs submit, and I agree, that those two factors create a risk that the jury might incorrectly believe that Foniciello has made a good recovery. If the jury is not fully and properly educated at trial then there would be a real risk that the jury would misconstrue the evidence, and underestimate the severity of Foniciello’s injury.
[28] Further, I accept the plaintiffs’ submission that a jury will have a difficult time assessing Foniciello’s credibility because of the fact that he has a brain injury. I accept that juries are usually well suited for the task of assessing the credibility of witnesses, but in this case the jury can only assess Foniciello’s credibility if they are fully educated and understand Foniciello’s injury.
[29] In this case Foniciello has what is known as “anosognosia”, which I understand means that because of his brain injury, Foniciello is not aware of his neurological deficits. Foniciello may testify that he is fine or functional, but he is unaware of just how dysfunctional he is. I accept the plaintiffs’ submission that, with this condition, there is a real risk that a jury may undervalue Foniciello’s condition, and may misconstrue the inconsistencies in his evidence as matters that go to his credibility.
[30] In addition, there are many complexities in the calculation of the damages. The plaintiffs list 26 separate questions that the trier of fact will have to decide in the assessment of damages, including the need for various types of services and therapies, the calculation of present values for future therapies, and the need and type of attendant care.
[31] The plaintiffs tendered a lengthy report from a rehabilitation consultant who set out a spreadsheet of the many services, devices, and therapies that Foniciello will need, each of which is contested by Acculine. The rehabilitation consultant provided the costs for that proposed care on an item-by-item basis. The trier of fact will have to decide for each item whether it is needed and to what extent. Then, the trier of fact will have to calculate for each item the present value of the item and/or gross up the cost of the item. That will be a very difficult task.
[32] Similarly, the income loss claim is at least as complicated as the future care cost claim. The trier of fact must make some decisions as to the level of income that was lost, both past and future. The plaintiffs’ economist has provided a very detailed calculation as to how to deal with the Insurance Act provisions for past lost income and future lost income. However, if a jury were to find that the amount lost by the plaintiffs is different than the amount that was used by the plaintiffs’ economist, it may make the calculation of lost income an impossible task for the jury.
[33] Also, on the income loss claim the trier of fact may have to deal with the issues of Foniciello’s CPP Disability Benefits, Foniciello’s LTD benefits, and Foniciello’s settlement of his accident benefit claim, some of which was placed in a structured settlement. In my view, these assessments of damages will be extremely complex for a jury.
[34] Overall, on the damages issues, I find that justice will be better served if the damages issues were tried by a judge; not a jury.
THE “WAIT AND SEE” APPROACH
[35] Counsel for Acculine has requested that I take a wait and see approach regarding the request to strike the jury notice because in some cases the anticipated complexities in a case never materialize at trial.
[36] I accept that I have the jurisdiction to take a wait and see approach. However, as discussed in the Cowles decision at para. 72, if there is no advantage to be gained by waiting, the decision with respect to striking the jury notice should be made in advance of the trial.
[37] In my view, the damages issues in this case are unduly complex. I have read the reports of most of the proposed witnesses. This case will not become simpler at trial. Therefore, I will not take a wait and see approach in this case.
BIFURCATION
[38] In the alternative, counsel for Acculine suggests bifurcating the trial. That is, Acculine’s counsel suggests that I should let the jury decide the liability issues and some of the damages issues, and remove the more complex damages issues from the jury.
[39] In my view, it would not be sensible to permit the jury to try some of the damages issues and not the other damages issues. All of these damages issues are related to one another. For example, before a jury can decide what therapy is appropriate, a jury must be educated as to the nature of the injury and the effects of the injury on Foniciello. Therefore, I will not split the damages issues.
[40] The remaining question is whether the liability issues should be split from the damages issues. Although it is rare that a trial would be bifurcated without the consent of all parties, in two recent decisions of the Ontario Court of Appeal (“OCA”) the bifurcation of the trial has been mentioned as an appropriate consideration on a motion to strike a jury notice.
[41] In Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, (OCA) a jury notice had been served by the defendant, and the trial commenced with a jury. But, before the last witness was called, the plaintiffs brought a successful motion to discharge the jury. The trial judge then continued the trial without a jury. The defendant appealed the decision to discharge the jury, and the OCA allowed the appeal and directed a new trial.
[42] At para. 69 of the Hunt decision Austin J. referred to s.108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) which reads, “On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.” Also, at para. 69 of Hunt, Austin J. wrote:
It was also an error on the part of the trial judge to fail to consider splitting the trial and letting the jury decide liability while he dealt with damages.
[43] Further, at para. 83 Austin J. wrote:
As to the discharge of the jury, I find that the trial judge erred in considering the length of time it would take to prepare to charge the jury, in failing to consider splitting the trial, and in giving weight to the difficulty he would have in instructing the jury as to matters of law. These are errors of law.
[44] In my view, these comments imply that s.108(3) of the CJA gives the court jurisdiction, on a motion to strike a jury notice, to bifurcate the trial so that the damages issues and the liability issues are tried separately; one with a jury and one without.
[45] Similarly in the aforementioned Cowles decision, the defendant appealed from the decision of the trial judge to discharge the jury. O’Connor J, at para. 66, in reference to the Hunt decision, wrote:
The court interfered because the trial judge had erred in considering the length of time it would take to prepare a charge to the jury, in failing to consider splitting the trial between liability and damages as he had been asked to do, and in giving weight to the difficulty he would have instructing jury as to the law. None of those errors are present here.
[46] Thus, in both of these cases, the OCA found that the bifurcation of the trial was a proper consideration on a motion to strike a jury notice.
[47] In the present case, I find that the liability issues lend themselves to a trial by a jury. The plaintiffs allege that this motor vehicle accident had two causes; the negligence of Bendall, and the negligence of Acculine. A jury could easily be asked to decide the liability questions. Specifically, a jury could be told to assume that Bendall was at least partially responsible for the accident, and then the jury could be asked if there was any negligence on the part of Acculine that caused or contributed to the accident. If so, the jury could be asked to apportion liability between Bendall and Acculine.
[48] Plaintiffs’ counsel submits that a jury should not try the liability issues primarily because it is anticipated that Foniciello will testify on the liability issues. It is submitted that a jury needs to be fully educated as to Foniciello’s injury in order to assess his evidence.
[49] I do not regard that objection as a problem in this case. It is clear from Foniciello’s examination for discovery that Foniciello has no information as to how the motor vehicle occurred, and he has no memory of the accident or the events leading up to the accident. Also, if Foniciello appears to be slow or unresponsive on the witness stand, this court would certainly permit counsel to lead evidence of a general nature of his brain injury in order to explain his manner on the witness stand.
[50] For these reasons, I am prepared to allow the jury to try the liability issues.
CONCLUSION
[51] In conclusion, the plaintiffs’ motion to strike the jury notice will be allowed in part.
[52] The trial will be bifurcated so that the liability issues will be tried by a jury. The damages issues will be tried by a judge alone, at a time to be scheduled after the jury has determined the liability issues.
Henderson J.
Released: April 8, 2014
COURT FILE NO.: 50466/08
DATE: 2014/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Joseph Foniciello, Maria Foniciello, Mary Foniciello, Lucy Foniciello ,Tony Foniciello, Lindsay Foniciello, and Chelsea Price-Mullins, a Minor Plaintiff by her Litigation Guardian Mary Foniciello
Plaintiffs
- and –
James Bendall, Sandra Bendall, and 1177020 Ontario Inc., operating as Acculine Pavement Markings
Defendants
DECISION ON MOTION
Henderson J.
Released: April 8, 2014