William A. McMaster

The plaintiff, a dentist claiming long-term disability benefits following a motor vehicle accident, brought a motion to strike the defendant's jury notice prior to trial.

The plaintiff argued the case involved complex medical and financial issues and claims for declaratory relief.

The court dismissed the motion, applying the 'wait and see' approach, holding that the right to a jury trial is a substantive right and the case did not meet the high standard required to strike a jury notice in advance of trial.

Costs were awarded to the defendant.

The defendant retailer appealed a master's order refusing further inspection and testing of ski bindings that were alleged to have malfunctioned and caused a skiing accident.

The master had concluded that the prejudicial effect of destructive testing outweighed its probative value and that direct expert evidence was required to justify the testing.

The court held that the master erred in law by requiring direct expert evidence and by rejecting admissible hearsay evidence permitted on motions under the Rules of Civil Procedure.

The master also misapprehended the evidentiary record when assessing the qualifications of the proposed technician and the technical assertions contained in the affidavits.

Applying the correct Rule 32.01 test, the court found a reasonable possibility that further testing could reveal useful evidence and that its probative value outweighed the potential prejudice.

The appeal was allowed and testing of the binding was permitted.