Chandra v. CBC, 2015 ONSC 2980
COURT FILE NO.: 06-CV-310261PD2
DATE: 20150512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
Richard Bennett, Joseph Figliomeni, John Lavers and Sarah Learmonth for the Plaintiff
Christine Lonsdale and Gillian Kerr, for the Defendants CBC, O’Neill-Yates, McIsaacs and Burgess
HEARD: 22 April 2015
REASONS FOR DECISION
(Motion to Strike Jury Notice Pursuant to Rule 47.02(2))
mew j.
[1] The plaintiff in this action seeks damages for libel and invasion of privacy allegedly arising from a news segment entitled “The Secret Life of Dr. Chandra” which was broadcast on CBC television on 30 and 31 January and 1 February 2006. The plaintiff, who at certain times material to this lawsuit was a professor at Memorial University, alleges that the broadcast was malicious, false and libellous of him personally and in the way of his calling as a professor and scientist.
[2] A jury notice was served by the defendants Jack Strawbridge and Memorial University of Newfoundland (the “MUN defendants”).
[3] The plaintiff wants to keep the jury. The defendants do not. The defendants have, accordingly, brought motions to strike the jury notice.
[4] As the appointed trial judge, I directed that certain motions should be heard during the week before the scheduled commencement of trial. Shortly before the motions were to be heard, the MUN defendants advised that they had settled with the plaintiff. Accordingly, while the MUN defendants’ evidence formed part of the motion record, the only motion heard was that of the CBC defendants (consisting of Canadian Broadcasting Corporation and three individual employees of the CBC associated with the broadcast).
[5] On 23 April 2015 I informed the parties that I was dismissing the motion to strike the jury notice, with reasons to follow. These are my reasons.
[6] In summary, I have concluded that I should not exercise my discretion to dispense with the jury at this time. The preferable approach in this case would be to wait and see as the trial unfolds whether the discharge of the jury is warranted.
Background
[7] Between 1974 and 2002, the plaintiff was employed as a professor and researcher in the faculty of medicine at Memorial University of Newfoundland (“MUN”). He became a world renowned expert in the fields of nutrition and immunology.
[8] In the broadcast, which consisted of a three-part, hour long documentary, it was alleged, among other things, that the plaintiff had fabricated research results which were then used as the basis for published scientific studies and reports. In the broadcast, the CBC claimed to have “uncovered a pattern of scientific fraud and financial deception dating back to the [1980]s”.
[9] The CBC documentary focuses on a number of studies which the plaintiff authored or co-authored, as well as studies conducted by others based on or purportedly replicating the plaintiff’s findings.
[10] Two key areas of the plaintiff’s research involved the impact of infant formula on the incidence of atopic disease (the “Milk Studies”), and the impact of a vitamin supplement on the immune response and cognitive function of elderly patients (the “Elder Vitamin Studies”).
[11] The Milk Studies include at least four independent but related studies. The plaintiff summarised the methodology and results of the most recent of those studies in these terms:
Methods: 216 high-risk infants whose mothers had elected not to breast-feed were randomized to receive exclusively a partial whey hydrolysate formula or a conventional cow’s milk formula or a soy formula until 6 months of age. Seventy-two high risk infants breast-fed for ≥ 4 months were also studied.
Results: Follow-up until 5 years of age showed a significant lowering in the cumulative incidence of atopic disease in the breast-fed (odds ratio 0.422 [0.200-0.891]) and the whey hydrolysate (odds ratio 0.322 [0.159-0.653]) groups, compared with the conventional cow’s milk group. Soy formula was not effective (odds ratio 0.759 [0.384-1.501]). The occurrence of both eczema and asthma was lowest in the breast-fed and whey hydrolysate groups and was comparable in the cow’s milk and soy groups. Small significant differences were noted in the 18-60 month period prevalence of eczema and asthma. Eczema was less severe in the whey hydrolysate group compared with the other groups. Double-blind placebo-controlled food challenges showed a lower prevalence of food allergy in the whey hydrolysate group compared with the other formula groups.
[12] The Elder Studies concerned at least three studies. The plaintiff set out the methodology in the first of those studies as follows:
This study assessed the effect of physiological amounts of vitamins and trace elements on immunocompetence and occurrence of infection-related illness. 96 independently living, healthy elderly individuals were randomly assigned to receive nutrient supplementation or placebo. Nutrient status and immunological variables were assessed at baseline and at 12 months, and the frequency of illness due to infection was ascertained.
Subjects in the supplement group had higher numbers of certain T-cell subsets and natural killer cells, enhanced proliferation response to mitogen, increased interleukin-2 production, and higher antibody response and natural killer cell activity. These subjects were less likely than those in the placebo group to have illness due to infections (mean [SD] 23 [5] vs 48 [7] days per year, p=0.002).
[13] The CBC defendants assert in their defence that the words complained of are:
a. not defamatory of and concerning the plaintiff;
b. a combination of statements of fact and expressions of opinion;
c. insofar as the words complained of are statements of fact, true in substance and in fact;
d. insofar as the words complained of consist of expressions of opinion, fair comment made in good faith and without malice on the basis of true facts with regard to a matter of public interest, namely the practice of scientists working and conducting research in universities in Canada;
e. contained in a broadcast on a matter of public interest, the communication of which was responsible.
f. if the words complained of did give rise to the meanings alleged by the plaintiff, protected as qualified privilege and, as such it was the CBC defendants’ duty to communicate the information, the words did not go beyond the exigency of the occasion, and the words were not communicated to those who have no interest in receiving the information.
[14] The CBC defendants propose to call witnesses with expertise in the subject matter of the plaintiff’s work who have specialised medical, scientific or statistical training. They point to the evidence which they anticipate being called in relation to the Milk Studies and the Elder Studies as indicative of the complexities that the jury will be asked to assess.
The Law
[15] The right to a jury trial in a civil action is provided for by s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43:
(1) In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.
(3) On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.
[16] Rule 47.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides the mechanism for bringing a motion to strike out a jury notice on the ground that the action ought to be tried by a judge without a jury.
Where Jury Trial Inappropriate
(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.
Discretion of Trial Judge
(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.
[17] The parties agree that the leading case on the exercise of a judge’s discretion to strike a jury notice is Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (C.A.) [Cowles]. A helpful summary of the reasons given by O’Connor A.C.J.O. in that case is provided by Epstein J.A. in the recent case of Kempf v. Nguyen, 2015 ONCA 114, [2015] O.J. No. 750, at para 43 [Kempf]:
The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See also King v. Colonial Homes Ltd., 1956 13 (SCC), [1956] S.C.R. 528, at p. 533: “the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons”.
A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).
Appellate review of a trial court’s exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See also Kostopoulos v. Jesshope (1985), 1985 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at p. 69, leave to appeal to S.C.C. refused, [1985] S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge’s exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).
The reviewing court should not interfere with the trial judge’s exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge’s discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See also Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 625.
The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49).
While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).
It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See also Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 (C.A.), at para. 70.
In some cases, it is preferable to take a “wait and see” approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary (at para. 70).
While in many cases the “wait and see” approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).
Positions of the Parties
[18] No issue was taken with the plaintiff’s assertion that he did not serve a jury notice of his own because of his reliance on the notice served by the MUN defendants. Accordingly it is immaterial that the plaintiff did not deliver the jury notice it now seeks to preserve.
CBC’s Position
[19] CBC argues that the case is so manifestly complex that it would be appropriate to strike out the jury notice at the outset of trial, rather than to take a “wait and see” approach.
[20] In summary the CBC suggests the following reasons that militate against a jury trial in this case:
a. The complexity of the scientific and technical issues involved.
b. The lack of time at the end of the trial for a jury to reflect on and calibrate the evidence before reaching its decision.
c. The length of the trial.
d. The extent of contested expert evidence.
e. The nature of the legal issues involved.
[21] As the CBC sees it, this is ultimately a case about scientific integrity. The CBC asserts that assessment of scientific integrity raises highly complex technical issues that would be beyond the reach of a jury. Specifically, CBC argues that the evidence is scientific and technical, a factor which weighs in favour of trial by judge alone. The trier of fact will need to understand the individual scientific studies in context and develop an appreciation of the relevant study designs and methodologies, as well as understand the steps required to collect and analyse data. There will be a great deal of evidence given by both participant experts (those witnesses involved in the underlying facts having expertise in the subject matter) and other experts who have specialized medical, scientific and/or statistical training.
[22] It is in the interests of justice for a judge to undertake the assessment of evidence and facts in a complicated scientific case: Foniciello v. Bendall, 2014 ONSC 2204, [2014] O.J. No. 1672 at para. 19. It is not convenient for the jury to make a scientific investigation. Juries are ill-equipped to take part in the trial and discuss the scientific technicalities with the counsel or witnesses as a judge would: Wipfli (Guardian ad litem of) v. Britten, 1981 615 (BC SC), [1982] 1 W.W.R. 709 (BCSC) at para. 32 (a statement also adopted by Henderson J. in Foniciello at para. 20).
[23] Furthermore, at the end of trial, a judge has the advantage of taking the time to reflect on the evidence, form preliminary conclusions, recheck the evidence, revise conclusions and eventually come to a just decision. A jury does not have this luxury: Foniciello at para. 21; MacDonald (Guardian ad litem of) v. Smith (1983), 1983 580 (BC SC), 48 B.C.L.R. 285 (BCSC).
[24] CBC also raises the length of the trial and the volume of evidence as factors which weigh against maintaining the jury.
[25] At the time the motion was argued, there were over 17,000 pages of documentary evidence disclosed (this number has since risen to approximately 3,900 documents comprising around 29,000 pages). The plaintiff has sworn nine affidavits of documents and his examination for discovery spanned six and a half days. The trial is scheduled to take nine weeks. It is anticipated that over 40 witnesses will testify.
[26] Although CBC concedes that the length of trial is not, on its own, a determining factor as to whether the jury should be struck, it can be inferred that a longer trial with more witnesses and more issues may be more complex: Cowles at paras. 81-83; Epstein Equestrian Enterprises Inc. v. Frank Jonkman and Sons Ltd., 2012 ONSC 5191, 23 C.L.R. (4th) 293 at para. 13.
[27] Aside from the wider complexities of the case, CBC argues that the trier of fact will have to weigh competing expert views on complicated matters. The expert reports relate to a number of topics, going towards both liability and damages. There are at least six different, competing experts.
[28] The issues on damages include a claim by the plaintiff that he has suffered pecuniary damages arising out of lost sales with respect to a multivitamin business.
[29] According to CBC, the damages issues are complex and involve a high degree of speculation. The trier of fact will, as part of the process of quantification, have to take into account various negative and positive contingencies which experts disagree over. The presence of complex damages issues support striking a jury: Placzek v. Green, 2012 ONCA 45, 29 M.V.R. (6th) 169 at paras. 8-10.
[30] CBC argues that claims for defamation and invasion of privacy are inherently complex. Aside and apart from the issues of expert evidence and determination of damages already alluded to, the defences raised by CBC will require the jury to apply numerous conditions and shifting burdens. CBC submits that the accumulation of the factual and legal complexities result in it being contrary to the interests of justice for the issues between the parties to be resolved by a jury.
[31] In Cowles, the Court of Appeal at para. 57 noted that the facts in that case put it at the low end of the complexity scale, but notwithstanding that, the court concluded that there was sufficient complexity to permit the judge to strike the jury. The CBC argues that the facts and evidence in the present case are significantly more complex than those in Cowles.
[32] While CBC acknowledges that a trial judge has the discretion to adopt a “wait and see” approach, it argues that the present case falls into the category of cases, identified by the Court of Appeal in Cowles at para. 72, where the “wait and see approach” is not appropriate. It is CBC’s submission that the evidentiary complexities that are already a reality at the outset of trial will remain so throughout the case and there is no need to “wait and see” if the complexities will materialise.
Plaintiff’s Position
[33] The onus of demonstrating that justice to the parties will be better served by a judge alone trial rests with CBC: Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 at para. 73 [Hunt].
[34] The right to be tried by a jury in a civil action is a substantive right that should not be interfered with without just cause or cogent reasons: Cowles at para. 154 (see also Kempf at para. 44 where reference is made to “the statutory right to a jury trial”).
[35] The plaintiff argues that the central issue in the case is whether or not Dr. Chandra fabricated research studies and misappropriated money. The jury will not have to decide whether the conclusions in Dr. Chandra’s research were correct or not, but, rather, whether the work was done at all.
[36] Scientific controversies should be settled by methods of science rather than by methods of litigation: Bernstein v. Poon, 2015 ONSC 155, [2015] O.J. No. 190 at para. 127. The plaintiff argues that it would be inappropriate for the CBC’s anticipated witnesses to be called to contest the validity or soundness of Dr. Chandra’s studies.
[37] It is the plaintiff’s position that while it might serve CBC’s purposes to maximise the complexity of the evidence, neither the legal issues nor the procedure are too complex for a jury. It would be a reversible error for a trial judge to strike a jury notice on the basis that it would be difficult to explain the law to the jury: Hunt at para. 70; Cowles at para. 63; Kempf at para. 43.
[38] The plaintiff argues in the alternative, that the court should take a “wait and see” approach: Cowles at paras. 70-73; Kempf at paras. 43 and 64; Strojny v. Chan, [1988] O.J. No. 201 (H.C.).
Discussion
[39] There is no doubt that the jury will hear a lot of evidence, much of it from witnesses who are scientists or other experts.
[40] The trial will also be long and the documents entered into evidence potentially voluminous.
[41] Furthermore, it has been said that the law of defamation is “notoriously complex and difficult” (R.J. Sharpe, K.E. Swinton & K. Roach, The Charter of Rights and Freedoms, 2d ed. (Toronto: Irwin Law, 2002 at p. 145).
[42] All of these factors militate against trial by jury.
[43] Nevertheless, subject to certain express limitations which do not apply to this case, a party has a statutory right to ask for a trial by judge and jury. That right should only be displaced by the exercise of judicial discretion based upon cogent and compelling reasons.
[44] While in some jurisdictions there have been statutory amendments that limit or eliminate the right to a jury trial in defamation actions[^1], in Ontario the only reform has been to put the right to a jury trial on the same footing as other eligible civil claims[^2].
[45] The Court of Appeal observed in Cowles, at para. 48:
Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science.
[46] In the present case, the parties have very different perspective on what the core issues are. The plaintiff says that the case is about alleged academic fraud. The defendants say it is about scientific integrity. If it is the former, it is far more likely that the issues will be within the abilities of a jury to try. Even if it is the latter, it remains to be seen to what extent the jury will have to understand or determine matters of scientific complexity or controversy.
[47] It would be presumptive in the present circumstances, for me to attempt to determine which vision of the case is more likely to prevail before any evidence has been adduced at trial.
[48] Indeed, not until a sufficient and representative body of evidence has been presented at trial will it become apparent whether, and if so, to what extent the case turns on technical or scientific issues. As the Court of Appeal said in Cowles, at para. 70:
Experience has shown that in many instances the anticipated complexities of a case or other concerns giving rise to a motion to dismiss a jury do not materialize or at least not to the extent originally asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so: see e.g., Martin v. St. Lawrence Cement Co., 1966 275 (ON CA), [1968] 1 O.R. 94 (C.A.); Ryan v. Whitton, 1963 121 (ON CA), [1964] 1 O.R. 111 (C.A.).
[49] The effect of some of the other complexities presented – the length of the trial and the volume of documents – is also best left assessed until after the case is underway. Long civil jury trials do happen from time to time. As conceded by CBC, the length of the trial is not in and of itself a factor: the jury panel will be told how long it is anticipated the trial will last and it can be expected that jurors for whom a lengthy trial would impose an unacceptable degree of hardship will not be required to serve. It is only to the extent that the length of the trial is indicative of the complexity of the subject matter that it becomes a factor. And often it can be the case that where thousands of documents are produced, only a relatively small number are really of great importance.
[50] Finally, while the legal complexities of a defamation case are often apparent from the outset, I would not, at this stage, dismiss the jury on the basis of legal complexity alone. Only if the combined effect of the legal issues and the factual issues as they emerge at trial so warrants would it be appropriate to re-evaluate whether the case has become too complex for a jury to do justice between the parties.
Disposition
[51] For the foregoing reasons, I am of the view that the CBC defendants’ motion to strike out the jury notice in this action should be dismissed.
Mew J.
Released: 12 May 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
REASONS FOR DECISION
Mew J.
Released: 12 May 2015
[^1]: E.g. England and Wales, where the provision in section 69(1) of the Senior Courts Act 1981 which provided that libel and slander actions in the Queen's Bench Division should be tried with a jury unless the trial required prolonged examination of documents etc. has been replaced by s. 11 of the Defamation Act 2013 which provides that trial is to be without a jury unless the court orders otherwise.
[^2]: Prior to 1985, section 57 of the Judicature Act, R.S.O. 1980, Chap. 223 provided:
Actions of libel, slander, malicious arrest, malicious prosecution and false imprisonment shall be tried by a jury, unless the parties in person or by their solicitors or counsel waive such trial.