Kwok v. Abecassis, 2016 ONSC 2031

CITATION: Kwok v. Abecassis, 2016 ONSC 2031

COURT FILE NO.: CV-12-0208

DATE: 20160322

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JIEFU KWOK Plaintiff

– and –

DAVID ABECASSIS, SIMON ABECASSIS, and THE PERSONAL INSURANCE COMPANY Defendants

Ryan A. Murray and Lara Fitzgerald-Husek, for the Plaintiff

David Rogers, for the Defendants, Abecassis Todd J. McCarthy, for the Defendant, The Personal Insurance Company

HEARD: March 22, 2016

HEALEY J.

[1] The plaintiff moves to strike each of the three jury notices filed in this action. The trial of this action has not commenced; it is scheduled to begin in November, 2016.

[2] The basis for the plaintiff's motion is that the trier of fact will be asked to resolve numerous complex issues of mixed fact and law with respect to both liability and damages. The claim is based on a motor vehicle accident occurring on the Highway 401 which involved several impacts to the vehicle driven by the plaintiff, resulting in catastrophic impairments as designated by his accident benefits carrier. The legal issues are anticipated by plaintiff’s counsel to include: 1) whether the facts can be characterized as involving one or two collisions; 2) if two collisions, whether the losses suffered by the plaintiff are divisible and if so, in what proportion; 3) whether the Abecassis defendants should bear any liability; 4) whether the plaintiff was contributorily negligent; and 5) a resulting calculation of damages, complicated by divergent opinions on the plaintiff’s life expectancy. The plaintiff also points to the complex, voluminous and competing expert evidence expected to be presented on the issues of liability and damages, the potentially negative effect of the plaintiff’s brain injury on his presentation as a witness, the number of witnesses and the expected length of the trial. In the result, the plaintiff argues that justice to the parties will be better served by striking the jury notices in advance of the trial.

[3] The defendants disagree, arguing that any such motion is premature and that this is a case in which the "wait and see approach" should apply. They argue that the fundamental and substantive right to have this matter tried before a jury should not be removed prior to an unfolding of the evidence in response to the issues that remain alive eight months from now. To strike the jury notices at this point would be to make a determination about complexity based only upon the plaintiff's speculation and assumptions about the strategy and anticipated evidence to be called by the defendants.

[4] It is recognized that the right to trial by jury is a substantive one, although not absolute, and that the plaintiff bears the burden of demonstrating that the justice of the case would be better served by having the matter heard by judge alone: Cowles v. Balac 2006 CanLII 34916 (ON CA), [2006], 83 O.R. (3d) 660 (Ont. C.A.), leave to appeal to S.C.C. refused, (2007), [2006] S.C.C.A. No. 496 (S.C.C.), at paras. 36-37. Further, the trial judge's discretion to retain or dismiss a jury in a civil case is very broad, provided that she does not act arbitrarily, unreasonably or capriciously, or through application of an incorrect principle of law: Cowles, at paras. 40 and 52; Kempf v. Nguyen 2015 ONCA 114, 2015 CarswellOnt 2231, at paras. 43 and 93.

[5] As argued by Mr. Murray, in Cowles the Court of Appeal noted that complexity is commonly recognized as a basis for striking a jury notice: at para. 48. However, as stressed by Mr. Rogers during argument, Cowles was a case in which an unusual constellation of factual circumstances led to unavoidable, complex legal issues that were not going to change or resolve in the future, persuading the trial judge to strike the jury notice even before the trial had commenced. Nothing coming close to that mix of factual/legal issues exists from the outset in this case.

[6] In Kempf, at para. 43, Epstein J.A. summarized the principles governing striking out of a jury notice, which were comprehensively outlined in the leading case of Cowles. One of those principles is that in some cases it is preferable to take a "wait-and-see" approach in order to determine whether the anticipated complexities of the case materialize, whether to the extent originally anticipated, or at all. This enables the trial judge to dismiss the jury only when it becomes necessary, while protecting the rights of the parties who seek a jury trial. It is also recognized, however, as set out by Laskin, J.A. in his dissenting judgment in Kempf, that “wait and see” is not a rule of law, but rather a matter of discretion: at para. 138. As previously mentioned, another of the governing principles is that the complexity of the 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 applicable legal principles. However, there is no sharp demarcation for when such complexity reaches the point where striking the jury notice becomes justified. The cases recognize that the wide latitude given to the trial judge can be properly exercised for or against discharging the jury equally correctly in many instances: Cowles, at para. 91; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (Ont. C.A.), at p. 625; Kempf, at para. 96; Placzek v. Green, 2012 ONCA 45 at para. 10. Ultimately the test is: will justice to the parties be better served by dismissing or retaining the jury?: Kempf, at para. 96; Cowles, at para. 37.

[7] It is not possible to do justice to that question at this point in time. There is nothing about this case that justifies deviating from the “wait and see” position and the rationale behind it. The case does not, at this early stage, cry out for such intervention. There is nothing uncommon about a motor vehicle accident action involving multiple vehicles and impacts. Jurors are familiar with the type of concepts and measurements that ultimately form the basis of the opinions reached by accident reconstruction engineers and specialists – speed, distance, force and driving behavior. Juries also regularly grapple with medical evidence relevant to severely injured individuals, including the question of causation. At this point it is speculative to determine whether the expert evidence, and the manner in which it is presented at trial, will be too complex or confusing for the jury to comprehend. The Court of Appeal in Placzek made clear that speculation about the manner in which evidence might be put before a jury is a potentially reversible error on a motion of this nature: para. 11.

[8] In terms of the competing expert opinions, instructing jurors about how to deal with competing expert opinions is a regular exercise for the trial judge. The fact that the opinions are extremely divergent is not a relevant consideration at this point.

[9] Although the length of the trial is recognized to be a relevant consideration, at this point no one can foresee whether it is inevitable that the case will extend beyond the anticipated four weeks currently allotted to it, if left with the jury.

[10] Another significant feature that could have an effect on the course of the trial is juror bias – the potential for them to react negatively to the testimony or behavior of a witness with an acquired brain injury. The behavior of such a witness may, in some cases, be effectively moderated by an appropriate ordering of medical witnesses, and a mid-trial charge if appropriate. Although in Moore (Litigation Guardian of) v. Wienecke, 2008 ONCA 162, 2008 CarswellOnt 1185 the jury was discharged in part because of the potential effect of the brain injury on the jury’s assessment of the plaintiff’s credibility, this was only done after twelve days of trial, which included having heard testimony from a vocational psychologist who had personally examined the plaintiff.

[11] In summary, while the issues anticipated by plaintiff’s counsel are likely accurate, as demonstrated by the draft jury questions presented by the defendants’ counsel during argument, those issues are not so numerous or complex that they require the intervention sought at this time. There are no other features of this case that currently warrant such an order. As the case unfolds and the evidence is heard, that may change.

[12] Accordingly, I find that it would be premature to decide the motion at this stage, and am reserving on making an ultimate decision on the motion until and unless renewed by plaintiff’s counsel at a later date after the trial has commenced. Costs of the day are also reserved.

HEALEY J.

Released: March 22, 2016