COURT FILE NO.: CV-15-00540527
DATE: 20241121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VICTORIA ABBOTT-FLEMING and MICHAEL ABBOTT-FLEMING
Plaintiffs
– and –
ASHLEIGH LEVESQUE, D. DENISE GILES, DR. JOHN DOE T. RIOS-ALBA, DR. ~~L.~~J. MERMELSTEIN and FOX FLIGHT INC.
Defendants
Jeffrey Wm. Strype and Rajwant Bamel, for the Plaintiffs
Mina Karabit, for the Defendants
HEARD: November 19, 2024
Papageorgiou J.
Overview
[1] The Plaintiffs Victoria Abbott-Fleming (“Victoria”) and Michael Abbott-Fleming (“Michael”) bring a claim in respect of an injury Ms. Abbott suffered while on a flight operated by the Defendant Fox Flight Inc. (“Fox Flight”).
[2] Fox Flight is an international air ambulance company that engages in the transportation of individuals that require medical care. The Defendants Ashleigh Levesque and Denise Giles were a registered nurse and registered respirologist, respectively, on the flight.
[3] The Plaintiffs allege that Victoria suffered a sciatic nerve injury during the flight as a result of the negligence of the Defendants that resulted in an above-knee amputation of her left leg.
[4] The trial in this matter has not yet been scheduled although there have been two pre-trials. There are still some expert reports that have not been delivered.
[5] The Defendants move to strike the jury notice in this action.
Decision
[6] For the reasons that follow I dismiss the motion.
[7] In my view, it is preferable to follow the “wait and see” approach. While there is complexity to this matter, there is not yet a trial date. It is unknown what the actual contested issues will end up being at trial, as issues sometimes are narrowed. It would not be in the interests of justice to deprive the Plaintiffs of this substantive right at this stage of the proceeding based upon the materials and argument before me.
Issues
[8] Will justice be better served in this case by discharging the jury at this time?
Analysis
The General Legal Principles for Striking a Jury Notice
[9] There is no dispute between the parties as to the following legal principles that apply.
[10] The right to a trial by jury in civil actions is set out in s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and is a substantive right that should not be interfered with lightly: Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 43; Penate v. Martoglio, 2024 ONCA 166, at para. 18, where the Court reiterated this.
[11] Section 108(3) of the Courts of Justice Act and r. 47.02(2) provides that the court may, on a motion, order that the issues of fact be tried or the damages assessed, or both, without a jury.
[12] The test for discharging a jury in a civil proceeding was articulated by the Court of Appeal for Ontario in Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, at p. 625 as follows:
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.
[13] Complexity of the facts and the legal principles that apply to a given case are proper considerations, and indeed the main considerations in determining whether justice will be better served by the discharge of a jury: Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (Ont. C.A.), at paras. 58, 72, and 91.
[14] Drawing a line between what is too complex for a jury is “far from an exact science.” Cases come down to the weighing of the right of a litigant to a jury trial against a determination that justice to the parties will be better served by striking the jury notice: at paras 36-91. See also Girao v. Cunningham, 2020 ONCA 260 at para 162 regarding the test. Determining whether a case is too complex is an inherently case specific exercise: Kempf v. Nguyen at para 119.
[15] See also Ismail v. Flemming, 2018 ONSC, where the Court indicated that a jury should be discharged only where a trial by jury would present the “greatest difficulty” by virtue of the complexity of the issues or evidence.
[16] Finally, in in Louis v. Poitras, 2021 ONCA 49, 456 D.L.R. (4th) 164, at para. 17, the Court indicated that the state of the administration of justice and the civil backlog is an appropriate consideration.
[17] The Defendants’ main argument is that a constellation of factors looked at together mean that justice to the parties will be better served by the discharge of the jury at this time, because this matter is simply too complex.
[18] The Plaintiffs’ position is that this motion is premature and that this court should adopt the “wait and see” approach.
Background
[19] Victoria and Michael were on vacation in New York from December 13, 2013, to January 17, 2014. While on their vacation Victoria contracted Swine Flu which developed into pneumonia. Victoria was admitted at Lenox Hill Hospital in Manhattan, New York on January 2, 2014. On January 4, 2014, she was put into a medically induced coma and put on extracorporeal membrane oxygenation (ECMO). On January 15, Victoria was removed from ECMO with the insertion of a tracheostomy for respiratory support. There was no record of any neurological problem with Victoria’s left leg up to the time of transfer.
[20] Victoria was further sedated with Midazolam, Fentanyl and Propofol during transport to the UK. During the flight, Victoria was restrained with straps so that she could not move in any way. She felt that the straps were too tight but was unable to speak due to the tracheostomy in her throat. The flight was expected to take approximately 12-16 hours. Upon arrival in the UK, Victoria was rejected by Stepping Hill Hospital because Fox Flight had not confirmed the flight status. This resulted in a further confined transport to Fairfield Hospital some three hours later. Shortly after arrival, she noticed that her left foot was numb and cold. The hospital put a woolen sock on her foot. She told her husband Michael that she could not feel her foot.
[21] Before this incident, in or around 2003 Victoria suffered a workplace accident. This resulted in diagnosis of Complex Regional Pain Syndrome (CRPS) in 2004 and an above-the-knee amputation of her right leg in 2006.
[22] Victoria engaged in litigation in the UK related to the first above-knee amputation which involved expert opinions on her condition, prognosis and future damages.
[23] She settled that action in 2007 for 2.1 million pounds.
[24] It is the Plaintiffs’ position that by December 2013 when she took her trip to New York, her pain had stabilized with intermittent flare ups and that prior to the 2013 incident, she never had any problems with her left leg with no signs of CRPS. She takes the position that this leg was strong and allowed her to be more independent than she is now without any legs.
[25] It is the Plaintiffs’ position that as a direct result of the Defendants’ negligence, Victoria suffered a sciatic nerve injury, which resulted in a flare up of her CRPS and eventually led to the above knee amputation of her left leg. The Plaintiffs assert that up until the time of transfer, there was no record of any neurological problem with Victoria’s right leg. She had been cleared for transfer by Lenox Hill and accepted by Fox Flight who had done their own medical evaluation.
[26] The following is my consideration of the main issues argued.
Cause of Action and Issues in Dispute
[27] The cause of action is negligence and at this stage, issues of standard of care, causation and damages are in dispute. These concepts are concepts that juries typically address in medical malpractice and motor vehicle accident cases.
The Concept of CRPS
[28] The jury will have to understand what CRPS is. The Defendants’ factum references Victoria’s expert, Dr. Kevin Smith, who describes CRPS as a “syndrome of signs and symptoms that can develop following trauma to an extremity in which there is variable expression of pain, edema, dysregulation of blood vessel, sweat gland and hair follicle control, movement disorder and trophic changes in the skin, nails, and bone.” “The associated pain is often disproportionately severe to the injury itself and is generally non-dermatomal. Although early and aggressive treatment is recommended, prognosis for recovery is unpredictable and often patients are left with permanent signs and symptoms.” In my view, a jury could understand this concept which is central to all issues in this case.
The Law Relating to Previous Injuries
[29] The Defendants also rely on the decision in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458 in support of the complexity in this case. Athey held that a defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced in any event. In my view, this is not too complex a proposition for a lay person to understand and it is presumed that a judge knows the law and is able to explain it to the jury.
Number of Experts and Conflicting Opinions
[30] The Plaintiffs have 8 expert witnesses which include a pain specialist, an emergency medicine physician, an anesthesiologist, a peripheral nerve injury surgeon, a life expectancy evaluator, an occupational therapist, a vocational consultant, an accommodations expert and possibly a biomedical engineer.
[31] The Defendants have 12 expert witnesses including a critical care paramedicine expert, an emergency medicine physician, a neurologist, an expert in anesthesia and pain care, a critical care expert, a rehabilitation medicine physician, an occupational therapist, a vocational rehabilitation and employment consultant, a life expectancy expert, a biomedical engineer and an architect.
[32] The Defendants may call the experts from the UK litigation as well which would add another 12 experts.
[33] These experts will present conflicting opinions related to the issue of the standard of care, whether the standard was breached and whether the damages were caused by the negligence.
[34] The expert reports demonstrate that there is no agreement as to the standard of care of an aeromedical transport company. The Plaintiffs rely upon analogies to critical care facilities in hospitals, but the Defendants’ position is that direct transference of such standards to the aeromedical field is difficult. Therefore, the jury will have to determine the standard of care based upon competing medical opinions. They would then need to extrapolate that to the unique circumstances of this flight.
[35] To determine causation, the trier-of-fact will also be required to parse Victoria’s pre-existing condition from injuries allegedly caused by the Fox Flight Defendants’ negligence.
[36] There will also be issues as to the impact of Victoria’s treatment in New York, the potential implications on her CRPS and whether the flight caused the sciatic injury which then triggered CRPS.
[37] With respect to damages, the Defendants argue that the previous settlement represents the severity and permanence of Victoria’s CRPS and impacts her damages. There are reports related to the previous litigation related to Victoria’s future needs. These include reports that spoke to her needing an electronically operable wheelchair and adaptations to her home. However, I take Plaintiff counsel’s point that this is somewhat of a red herring. The future care reports that led to that settlement are in some cases 15 years old. They were the basis for the future care that she required at that time, but what can be known with some precision now is what her future care costs have actually been since the 2003 accident. The fact that the experts in this litigation also say that she requires a wheelchair and adaptations to her home does not make the issue more complicated. If anything, the Defendants will be able to point out where they feel her estimated future care costs have been duplicated by damages that she has already obtained in as simple a manner as they did in their factum on this motion and before me during argument.
[38] As noted by the Court in Boyce v. Waterloo Insurance Company, 2024 NSSC 54, conflicting expert opinions is not generally a ground to strike a jury notice, because counsel performs much of the “heavy lifting” on evidentiary issues in any event, and that “it is the job of counsel to elicit any necessary opinion evidence from medical experts in a clear and understandable fashion”.
[39] Despite the fact that there are many experts, and they approach the issues from different perspectives, juries often address pre-existing injuries and conditions in the context of medical negligence and motor vehicle negligence and claims address competing causation and expert opinions relevant to severely injured individuals: Kwok v. Abecassis, 2016 ONSC 2031 at para 7; In Cowles v. Balac at paras 39 the Court acknowledged that “experience shows that juries are able to deal with a variety of cases and to render fair and just results.”
Quantum of Trial Documents and Length of trial.
[40] The trial duration calculations on the Trial Management Form indicate that the trial will take 13,320 hours which is approximately 8 weeks, but in argument the parties indicated that it could take an additional 2 weeks because Victoria can only testify for 2 to 3 hours per day because of her medical condition. With this adjustment, her evidence is expected to take 2 weeks. Counsel for the Plaintiffs indicates that the time will not be wasted because there will be other issues to address when the Plaintiff is not testifying.
[41] I note here that Victoria’s inability to testify for more than 3 hours per day will be the case whether this is a jury trial or not.
[42] While there may be concerns about inconvenience to juror members by having to sit during a long trial, there is a process for empaneling the jury who will be able to raise any issues about the duration at the outset.
[43] Trial documents are estimated to be between 12,000 and 16,000 pages.
[44] In Chandra v. CBC, 2015 ONSC 2980 the court declined to strike the jury notice notwithstanding complexity and the matter involving 29,000 documents and 40 expert witnesses. The Court stated:
…[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.”
“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.
Potential of the Plaintiff Not being able to continue and an adjournment being required to continue the trial mid-stream.
[45] The Defendants are concerned that Victoria could have a relapse in which case there might need to be an adjournment of part of the trial to a future date which will be unworkable with a jury. This is highly speculative. If that were to happen, the Defendants could move before the trial judge to strike the jury.
The Civil Backlog
[46] The Defendants also argue that the interests of the civil backlog should be taken into account in the exercise of the court’s discretion and that in this case, this tips the balance in favour of striking the jury notice: Louis v. Poitras, at paras. 2, 3.
Cases Where Jury Notices Have Been Struck Before Trial
[47] All but two of the cases referenced by the Defendants where jury notices have been struck involved decisions made by the trial judge and these cases are distinguishable.
[48] Thibault v. The Empire Life Insurance Company, 2012 ONSC 1723, 8 C.C.L.I. (5th) 272 was a successful motion to strike a jury before trial by a motions judge. However, this case involved "a host of complex legal issues including civil fraud, breach of contract, breach of fiduciary duty, an insurer's obligation to deal with an insured in good faith and the meaning of such obligation, an insured's obligation to bargain in good faith, and the interpretation of complex insurance policies" in addition to several questions of fact: at paras. 69-74. The Court also had concerns about the need for the jury to assess two actuarial reports and forensic accounting reports involving entries in a general ledger account over a 16-year period. As well, the main claim was declaratory in nature. Justice Thorburn (as she then was) noted that s. 108(3) of the Courts of Justice Act provides that issues of fact and the assessment of damages in a claim for declaratory relief shall be tried without jury: at para. 56. Thorburn J. also held that it was not in the interests of justice to sever these claims from the claim for declaratory relief: at para. 65.
[49] The legal issues in this case are not as legally multifaceted and there are no issues that a jury is not permitted to address.
[50] The case Lounds v. Lounds 2024 ONSC 2010 involved a jury trial that was scheduled to take place in North Bay for six weeks. The main reason why the jury was struck was that the courts in North Bay could not accommodate a jury trial of that length. The onus here is on the Defendants and they have provided no evidence that Toronto cannot accommodate a jury trial of this length. They have had two pre-trials and many case conferences and no one has ever advised them as much. I can advise as a judge of this court that Toronto does have jury sittings that can accommodate a jury trial of this length.
The Wait and See Approach
[51] Although the Defendants argue that it is more practical, efficient and an overall benefit to the civil justice system to strike a jury before trial, as noted in Kempf v. Nguyen, citing Cowles v. Balac, sometimes it is preferable to take a “wait and see” approach before deciding whether to discharge the jury, because experience shows that in many cases “the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted”: at para. 43. Waiting and seeing allows courts to “better […] protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary”: at para. 43.
[52] Given the Court of Appeal’s decision in Kempf v. Nguyen, 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.
[53] In McIsaac v. MacKinnon, 2019 ONSC 2954, the defendant argued that the complexity of the legal concept of “causation” coupled with the complex and disputed scientific evidence relating to a rare disorder made the case unsuitable to be tried by a jury. The Court, referring to the jurisprudence in Kempf declined to strike the jury, and instead adopted a “wait and see approach.”
[54] In my view, although the matter is certainly complex, I am not satisfied based upon the materials and submissions before me that the interests of justice support striking the jury at this stage. In AB v. CD, 2018 ONSC 2696 even though Myers J. was dubious that the case before him was appropriate for a jury, he concluded that the case law was clear that the decision to strike a jury notice due to complexity is one for the trial judge absent unusual circumstances.
[55] There are no unusual circumstances that require this jury notice to be struck at this time.
[56] There is not even a trial date scheduled yet. It may be that as the trial approaches, some of the contested issues that have created complexity will fall off the table. It may be that even though there are thousands of documents there are only a handful that are actually presented at trial which is often the case.
[57] The “wait and see” approach preserves the Plaintiffs’ substantive right while still leaving open the possibility that the Defendants could move to strike the jury notice before the trial judge on the basis that it is in the interests of justice. This is the preferable approach consistent with the case law.
Costs
[58] The Plaintiffs are the successful party and presumptively entitled to costs. They seek costs in the amount of $10,905 on a substantial indemnity basis or $7,635 on a partial indemnity basis.
[59] There is no basis for a substantial indemnity costs award which are only awarded where there has been reprehensible, scandalous or outrageous conduct on the part of a party: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5; Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.); and most recently Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.
[60] The partial indemnity costs claimed by the Plaintiffs are almost identical to the costs set out in the Defendants’ Bill of Costs. The time spent and rates charged are reasonable These are within the reasonable contemplation of the Defendants Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26.
[61] Thus, I award the Plaintiffs $7,635 payable within 15 days.
Papageorgiou J.
Released: November 21, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VICTORIA ABBOTT-FLEMING and MICHAEL ABBOTT-FLEMING
Plaintiffs
– and –
ASHLEIGH LEVESQUE, D. DENISE GILES, DR. JOHN DOE T. RIOS-ALBA, DR. ~~L.~~J. MERMELSTEIN and FOX FLIGHT INC.
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: November 21, 2024