Court File and Parties

CITATION: Nemchin v. Green, 2017 ONSC 1862

COURT FILE NO.: 12-56112

DATE: 2017/04/10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TATIANA NEMCHIN

Plaintiff

– and –

YVONNE GREEN

Defendant

Counsel:

Joseph Obagi and Adam Aldersley, for the Plaintiff

Thomas Ozere and Kim Dullet, counsel for the Defendant

HEARD: March 10, 2017

RULING

Motion No.5

Trial Forum – Jury or Judge Alone

CORTHORN J.

Introduction

[1] Following the conclusion of the evidence, the plaintiff brought a motion for an order (a) striking the defendant’s jury notice and (b) that the balance of the trial would proceed before judge alone.

[2] The plaintiff’s motion to strike the jury was heard on March 10, 2017.[^1] Prior to the resumption of trial on March 27, I dismissed the plaintiff’s motion, provided oral reasons for doing so, and undertook to deliver written reasons. This ruling is in follow-up to the oral reasons given and is being released subsequent to return of the jury’s verdict.

Background

[3] The trial date in this matter was set by the Local Administrative Judge (Civil) at a trial management court held approximately a year prior to the trial date. Counsel for the parties had collectively estimated that the trial would last three weeks. Out of abundance of caution, and in an effort to ensure that the trial would be completed in the time allotted, the Local Administrative Judge added a week to the estimated trial time. In the end, the trial was scheduled to commence on February 13, 2017 and to last for four weeks.

[4] Upon being assigned to preside over the trial, I arranged a trial management conference. The conference was held on February 10. At the conference, I canvassed with counsel the preliminary motions to be heard, the timing of jury selection, and the length of the trial.

[5] It was necessary to discuss the estimated duration of the trial because the fourth week of the trial ended on the Friday immediately preceding the March Break. Counsel were advised that I was, because of a prior commitment, unable to sit the week of March 13. Counsel and the parties were therefore aware, before the trial began, that if more than four weeks were required for the trial, it would be necessary to break for at least one week. There was no objection made on behalf of either party to proceeding in that manner.

[6] The trial proceeded the week of the February 13 as expected, with preliminary motions on the first day and jury selection on the morning of the second day. The members of the jury panel were advised from the outset that (a) the trial was scheduled to last four weeks and (b) if the trial lasted more than four weeks, the Court would not be sitting the week of March 13. The jury was selected on the morning of February 14. Counsel for the parties made their respective opening arguments that afternoon.

[7] The plaintiff’s first witness, an expert and participant witness, was called on the third day of trial – February 15. The next witness called was the plaintiff herself. Her examination-in-chief spanned a number of days including Monday, February 20. Towards the conclusion of the plaintiff’s examination-in-chief a break was taken in her evidence.

[8] That break was taken to allow for a voir dire with respect to a surveillance video upon which the defendant intended to rely as substantive evidence only. A ruling was required so that the plaintiff could determine how to address the surveillance, if at all, in the concluding portion of her examination-in-chief.

[9] The voir dire took the better part of two days. On the first day, the videographer testified with respect to the contents of his reports and the video footage obtained. Argument on the voir dire was heard on the second day. I ruled that the defendant was not entitled to rely on any of the surveillance video as substantive evidence.[^2]

[10] The plaintiff’s testimony continued on the Thursday and Friday of the second week of trial. The parties continued to call their evidence throughout the week of February 27 and on March 6, 7, and 8.

[11] As is my practice, at the end of each day of the trial, I reviewed with counsel the schedule of the witnesses, the anticipated duration of their testimony, and the potential for the trial to take more than the amount of time for which it was scheduled. During the week of February 27, it became relatively certain that it would not be possible to complete the trial by Friday, March 10.

[12] It was therefore clear that it would be necessary to break for the week of March 13 (the March Break Week) and return thereafter to complete the trial. Also to be considered was that counsel for the defendant was, due to a prior commitment, not available for the period from March 16 to 23.

[13] The plaintiff requested that the jurors be canvassed for their availability during the week of March 20 in any event, on the basis that the ‘scheduling problem’ (i.e. a break until March 27) was solely the result of the scheduling conflict of counsel for the defendant. In response to that request, I:

• Disagreed with the plaintiff’s characterization of the cause of the scheduling issue;

• Informed counsel that in my view the scheduling issue arose because of the inability of counsel for both parties collectively to accurately estimate the length of the trial; and

• Declined to canvass the jurors for their availability the week of March 20.

[14] With respect to the final point, I informed counsel that my decision not to canvass the jurors for their availability for the week of March 20 was without prejudice to the plaintiff’s right to bring a motion to strike the jury at a later point in the trial if she wished to bring such a motion.

[15] In the end, the members of the jury were canvassed for their availability the week of the March 27 and for April 5, 6, and 7. Counsel for the plaintiff was not available on April 3 and 4 because of a two-day hearing scheduled in the Court of Appeal.

[16] The jurors were all available from March 27 to 31 and on April 5 and 6. I note that one member of the jury re-scheduled day surgery from March 29 to a date in May so as to be available for the continuation of the trial.

[17] The evidence in the trial was completed part way through the day on March 8. At the conclusion of the evidence, the jury was asked to return on the morning of March 27.

The Issue

[18] Would justice between the parties be better accomplished by retention or by discharge of the jury?

Disposition

[19] For the reasons which follow, the plaintiff’s motion was dismissed.

The Positions of the Parties

a) The Plaintiff

[20] The plaintiff emphasized that she has the burden of proof with respect to the issues of liability and damages. With respect to the latter, the plaintiff highlighted that her primary injury is post-traumatic stress disorder (“PTSD”). The plaintiff referred to PTSD as an “invisible wound.” She submitted that the outcome of the action, in particular with respect to the assessment of damages, turned on her credibility and the understanding the jurors had of the medical evidence with respect to PTSD.

[21] The plaintiff argued that, as a result of a delay of 19.5 days from the conclusion of the evidence until closing argument would begin, justice would be better served if the trial proceeded before a judge alone. The plaintiff’s position was that in this case the delay of 19.5 days was prejudicial to her because:

• The jurors would not have access to their notes during the 19.5-day break;

• The evidence would not be fresh in the minds of the jurors;

• There was the potential for the jurors to be unable to recollect, properly or at all, portions of the evidence; and

• The medical evidence with respect to PTSD was complex and the delay might cause the jurors to forget the details and subtleties in the evidence they heard on this subject.

[22] The plaintiff acknowledged that delay alone is not necessarily a sufficient factor upon which to base an order dismissing the jury. However, there may in some cases, and this trial was one of them, be a delay of sufficient length that delay alone is ‘the’ factor upon which to base an order discharging the jury.

[23] In summary, it was the plaintiff’s position that the prejudice arising by reason of the delay could be fully addressed by proceeding with the balance of the trial before judge alone.

b) The Defendant

[24] The defendant’s position was that there was no compelling or cogent reason to deprive the defendant of her right to have this action tried by a jury. The defendant submitted that there was nothing complex about the evidence in this matter – in particular when the evidence in this matter is contrasted with the complex evidence described in the authorities upon which the plaintiff relied. For example, the defendant highlighted the following matters as relevant to the determination of the motion:

• The plaintiff called one expert medical witness (who was also a participant witness).

• The only other expert called by the plaintiff was an economic loss expert. Her evidence took a half-day of trial time.

• The documentary exhibits total approximately 50 in number and are comprised, in large part, of medical records.

• Exhibit 1 was the plaintiff’s medical records. Of the 113 tabbed sections, a great number of them are a single page only. Only 54 of the 113 tabs were referred to during the trial. The remainder of the documents was the chiropractor’s notes and those notes were not referred to in evidence.

[25] The defendant’s position was that the nature of the plaintiff’s injury did not impact, at least in this case, on the jury’s ability to recall and understand the evidence. Even if it were accepted that PTSD is “invisible” as the plaintiff submitted, there was more than ample evidence from the plaintiff and other witnesses about PTSD for the jury to recall and consider.

[26] The defendant submitted that the potential for the jurors to recollect the evidence should not be underestimated. The defendant highlighted that the jurors were eager to make themselves available in late March and early April.

[27] Lastly, the defendant’s position was that the delay from the completion of the evidence to the commencement of closing argument was not a delay which she occasioned.

Analysis

[28] The right to a trial by jury in a civil action is provided for in section 108(1) of the Courts of Justice Act.[^3] It is a substantive right that is not to be taken away except for cogent reasons.[^4]

[29] The plaintiff’s motion to strike the jury was made pursuant to section 108(3) of the CJA, which provides that “[on] motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.”

[30] The Ontario Court of Appeal concluded on at least two occasions, more than 20 years apart, that the test on a motion of this kind is, “Will justice to the litigants in the particular case be by retention or by discharge or the jury?”[^5]

[31] That question was considered by the Divisional Court in the 1983 decision in Soldswisch v. Toronto Western Hospital et al.:

We think that an important element in any answer to that question is which forum is more likely going to be able to comprehend, recollect, analyze and eventually weigh expert testimony on complex and highly technical scientific matters. It is essential to just determination of issues that the tribunal of fact be able to understand the case that the litigants are putting forward.[^6]

[32] In argument on the motion before me, both counsel addressed this “important element” of the answer to the question posed.

[33] The plaintiff’s position was based largely on the nature of her injury and the complexity, which in her view arises from the “invisible” nature of her injury. On that aspect of the argument, I agree with the defendant’s position; the alleged invisible nature of the injury does not give rise to complexity sufficient to warrant taking this case from the jury.

[34] I agree with the plaintiff that the jury’s assessment of her credibility would be a significant factor in the outcome of this case. However, I do not agree that the delay in this case was prejudicial to the plaintiff in the jury’s consideration of the evidence and, ultimately, their assessment of the plaintiff’s credibility.

[35] First, in reality the delay is not one of the 19.5 days. It is a delay of seven calendar days and five sitting days – from March 20 to March 27. With the evidence having concluded on March 8, given the time required to complete the charge and review same with counsel, absent the need for any break at all, in all likelihood closing argument would not have commenced until March 13 with the charge to follow thereafter. There was going to be a delay from March 13 to 20 before the jury returned to hear closing argument and receive the charge. This break was required because of my schedule and regardless of the schedule of counsel for the defendant.

[36] Second, those jurors who kept notes (and not all of them did) would be able to refresh their memories from their notes. They would have each other, as they always do, with whom to discuss their respective recollections of the evidence. For any point about which they were uncertain as to the evidence, they would be in a position to request that the audio recording be played for them in open court. The jury was no different than are judges in terms of access to the audio recording for clarification where required.

[37] Third, with respect to the expert evidence, the two expert witnesses who testified addressed the contents of their respective reports. Although the jury did not have copies of the reports to assist them, as does a trial judge, they heard and had access to the same oral evidence upon which to rely as I had as the trial judge.

[38] This jury was no different than any other jury in terms of lack of experience, relative to the presiding trial judge, in comprehending, analyzing, and weighing expert testimony. However, I found that the issues about which the medical and other experts testified were not particularly complex and they were certainly not highly technical scientific matters. I also found that the jury remained in a position to apply their respective intellects and bring their good common sense to the matters they were asked to determine.

[39] Lastly, I turn to the issue of “delay” in and of itself. The plaintiff submitted that there is no data available as to the impact of delay on the ability of juries to fulfill their function. The plaintiff characterized the impact as negative. Such a characterization overlooks the potential salutary effect of a break from the proceeding, the opportunity for reflection, and a return to the courtroom refreshed and energized for the balance of the proceeding including deliberation.

[40] The plaintiff explained the timing of the motion on the basis that she took the “wait and see” approach described in the decision of the Court of Appeal in Kempf v. Nguyen:

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.[^7]

[41] I note that the plaintiff provided no authority in support of an order discharging the jury upon the completion of the evidence (i.e. prior to closing argument and the delivery of the charge).

Conclusions

[42] I found that the evidence in this matter was not so complex as to make the jury any less likely than the trial judge to be able to comprehend, recollect, analyze and weigh the evidence including that of the expert witnesses. I also found that the plaintiff would not be prejudiced by what amounted to a delay of five additional sitting days (March 20 week) over and above the five days (March 13 week) at which the plaintiff requested the break be capped.

[43] In summary, it was not necessary to dismiss the jury. I concluded that justice between the parties would be better accomplished by the retention of the jury.

Madam Justice Sylvia Corthorn

Released: April 10, 2017

CITATION: Nemchin v. Green, 2017 ONSC 1862

COURT FILE NO.: 12-56112

DATE: 2017/04/10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TATIANA NEMCHIN

Plaintiff

– and –

YVONNE GREEN

Defendant

RULING ON MOTION

Motion No. 5

Trial Forum – Jury or Judge Alone

Madam Justice Sylvia Corthorn

Released: April 10, 2017

[^1]: Unless otherwise specified, all dates referred to in this Ruling are in 2017. [^2]: Nemchin v. Green, 2017 ONSC 1321. [^3]: R.S.O. 1990, c. C.43. [^4]: The Roman Catholic Episcopal Corp. v. Axa Insurance, 2016 ONSC 4061, 2016 CarswellOnt 9742, at para. 26. [^5]: Aitken v. Forsell, [1991] O.J. No. 912, 50 O.A.C. 337, and Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189, 1967 CarswellOnt. 179, at para. 38. [^6]: (1983), 1983 CanLII 1684 (ON SCDC), 43 O.R. (2d) 449, at para. 18. [^7]: 124 O.R. (3d) 241, 2015 ONCA 114, at para. 43(8).