BARRIE COURT FILE NO.: CV-11-0693

DATE: 20190515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jacob James McIsaac by his Litigation Guardian, Cheryl McIsaac and Joseph McIsaac

Plaintiffs

– and –

Dr. James Alastair MacKinnon, Dr. Patricia Ann Bayliss, Dr. Shujauddin Fazalurrhahman Hafiz, Dr. John Timothy Feltis, Dr. Patricia Cresswell Parkin, Dr. Michael Szeto, Dr. Stanley Edgar Read, Dr. Chantelle Bernadette Samson Barnard, Dr. Manuel Carcao, Dr. Beverley Lynette Burt Bowes, Dr. Mohamed Abdelhaleem, Lila Freedman, in her capacity as Administrator of The Estate of Dr. Melvin Harris Freedman, Deceased, Dr. John Doe, Credit Valley Hospital and The Hospital for Sick Children

Defendants

James Vigmond, Adam Little, and Karen Vigmond for the Plaintiff

Thomas Curry, Jaan Lilles, Andrew Porter and Amy Sherrard, for the Defendant, Dr. James Alastair MacKinnon

HEARD: May 13, 2019

RULING RE: MOTION TO STRIKE JURY

CHARNEY J.:

Introduction

[1] This is a medical malpractice action arising from the defendant’s medical treatment of the minor plaintiff in the months after his birth. Originally there were multiple defendants. The remaining defendant is Dr. James MacKinnon, a paediatrician who practices at the Credit Valley Hospital.

[2] The infant plaintiff alleges that the defendant was negligent in his care of the plaintiff. He alleges that the defendant failed to diagnose and treat the plaintiff in a timely manner following receipt of certain test results, and that this negligence caused the plaintiff’s severe developmental disabilities. The infant plaintiff’s parents are also plaintiffs in this action.

[3] In an agreed Statement of Facts, Dr. MacKinnon has acknowledged that his treatment of the plaintiff fell below the standard of care, but the issues of causation and damages are still contested.

Issue

[4] At the outset of the trial, counsel for the defendant brought a motion pursuant to s. 108 (3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 47.02(2) of the Rules of Civil Procedure, to strike the jury notice served by the plaintiffs. He argues that the trial will involve complex factual and legal issues relating to an alleged delay in the treatment of the plaintiff’s rare metabolic disorder, Transcobalamin II deficiency, or TCII, and that these complexities render this case unsuitable for a trial by a jury.

[5] TCII is an extremely rare genetic metabolic disorder that impacts a portion of the body’s process for metabolizing proteins and facilitating the transport of vitamin B12 from the digestive tract to the tissues in the body.

[6] The defendant argues that the trier of fact will be required to grapple with highly complicated and sophisticated scientific concepts to understand the nature of this rare disorder and the mechanism by which the disorder impacts the entry of vitamin B12 into the body’s cells in order to understand the implications of these concepts in relation to the central legal question of causation. The defendant points out that there is sharp disagreement between the experts on the impact of a delay in treatment in this case, and this disagreement will require reference to a significant volume of complex medical literature. He argues that the trier of fact will need to develop and retain a deep understanding of this rare condition and the significance of the medical literature in order to understand the expert evidence relevant to causation.

[7] The defendant argues that the complexity of the legal concept of “causation” coupled with the complex and disputed scientific evidence relating to this rare disorder makes this case unsuitable to be tried by a jury, and that justice will be better served by having the trial heard by a Judge alone.

[8] The trial is scheduled to last 4 to 5 weeks on the issues of causation and damages alone, and both parties will be calling multiple expert witnesses to deal with these issues. The plaintiffs have claimed damages in the amount of $25 million.

[9] The plaintiffs argue that the rarity of the minor plaintiff’s medical condition cannot be equated with complexity, and that the defendant’s motion to strike the jury is, at best, premature. The legal and factual issues in this case are no more complex than any medical malpractice case, and the fact that medical experts may disagree on the issue of causation is neither unusual nor inherently complex. Furthermore, the damages issues in this case are the kind that are regularly decided by juries.

[10] The plaintiffs also note that there is only one remaining defendant in this case. This is not a case in which multiple defendants are pointing fingers at each other, which might add a level of complexity and confusion for a jury.

Analysis

[11] The principles relating to a motion to strike a jury are summarized by the Ontario Court of Appeal in Kempf v. Nguyen, 2015 ONCA 114, at para. 43. The relevant principles to be applied by the judge hearing the motion are:

i. 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;

ii. 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;

iii. 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;

iv. 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;

v. 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; and

vi. 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, contemplate that a judge may strike a jury notice even before a trial has begun.

[12] In Kempf, the Court of Appeal concluded that the trial judge decided to strike the jury (at para. 54) “primarily on the basis of her apprehension that the jury would not be able to understand the limited use they could make of the waiver”. The Court of Appeal noted, at para. 59:

To determine liability the jury would have to sift through the often conflicting evidence, make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day.

[13] The Court of Appeal concluded that this was a case in which the “wait and see” approach would have been more appropriate. The Court stated, at para. 64:

In my view, it would have been preferable for the trial judge to have reserved her decision on the motion until after the evidence had been completed, as Nguyen’s counsel urged her to do, or, perhaps, until a discrete problem arose. As the cases emphasize, the “wait and see” approach is generally preferred. I say so for two reasons. From a practical perspective, often the anticipated complexities of a case or other concerns giving rise to the motion to dismiss a jury do not materialize. From a principled perspective, the right to a jury trial is a fundamental, substantive right that should not be interfered with except for very cogent reasons: Cowles, at para. 70.

[14] The “wait and see” approach is based on the premise that it is usually “preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted”, see: Cowles v. Balac, 2006 CanLII 34916 (ON CA), at para. 70. While the “wait and see” approach is not a rule of law, the Court of Appeal has consistently noted that it is the “preferable” and “most prudent” approach, see: Kempf at para. 65 and Cowles at paras. 70 – 72. As the trial unfolds, it may be that not all of the expert witnesses will be called, or, despite the complexity of the background science, the experts are able to explain the basis of their different opinions in language that is accessible to the average juror.

[15] Given the Court of Appeal’s decision in Kempf, Dow J. observed in Ma v. RBC Life Insurance Company, 2016 ONSC 6417, at para. 13:

It will be the rarest of situations and only in the clearest of cases where a party can successfully argue a jury notice should be struck in advance of the trial.

[16] In my view, this case does not justify departing from the “wait and see” approach preferred by the Court of Appeal. At this point it remains speculative 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.

[17] As such, I will follow the “prudent” course and reserve my decision on this motion until after the evidence has been completed. At that point, counsel for the defendant may renew his motion to strike the jury if he remains of the view that justice will be better served by having the trial decided by a judge alone. We will wait and see.

Justice R.E. Charney

Released: May 15, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jacob James McIsaac by his Litigation Guardian, Cheryl McIsaac and Joseph McIsaac

Plaintiffs

– and –

Dr. James Alastair MacKinnon, Dr. Patricia Ann Bayliss, Dr. Shujauddin Fazalurrhahman Hafiz, Dr. John Timothy Feltis, Dr. Patricia Cresswell Parkin, Dr. Michael Szeto, Dr. Stanley Edgar Read, Dr. Chantelle Bernadette Samson Barnard, Dr. Manuel Carcao, Dr. Beverley Lynette Burt Bowes, Dr. Mohamed Abdelhaleem, Lila Freedman, in her capacity as Administrator of The Estate of Dr. Melvin Harris Freedman, Deceased, Dr. John Doe, Credit Valley Hospital and The Hospital for Sick Children

Defendants

RULING RE: MOTION TO STRIKE JURY

Justice R.E. Charney

Released: May 15, 2019