Van Essen v Marcinowski, 2016 ABQB 634

Court of Queen’s Bench of Alberta Citation: Van Essen v Marcinowski, 2016 ABQB 634 Date: 20161110 Docket: 0901 04286 Registry: Calgary Between: Mark Allan Van Essen Plaintiff - and - Myrna M Marcinowski Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ [ 1 ] In this application, the Defendant seeks to have this matter heard by a jury. The Plaintiff contests this application. [ 2 ] This action arises out of a motor vehicle accident that occurred on March 26, 2007, in Calgary.

The Plaintiff issued his statement of claim on March 20, 2009, in which he claims damages arising from his personal injuries in an amount exceeding $75,000. The Defendant has formally admitted liability. Thus, the issues in this lawsuit are the extent of the Plaintiff’s injuries and quantification of damages. [ 3 ] The Jury Act , RSA 2000, c J-3, s 17, provides as follows: 17(1) Subject to subsections (1.1) and (2), on application by a party to the proceeding, the following shall be tried by a jury: ... (

b) an action founded on any tort or contract in which the amount claimed exceeds an amount prescribed by regulation, or

...

(2) If, on an application for directions or on a subsequent application, it appears that the trial might involve (

a) a prolonged examination of documents or accounts, or (

b) a scientific or long investigation, that in the opinion of a judge cannot conveniently be made by a jury, the judge may, notwithstanding that the proceeding has beendirected to be tried by a jury, direct that the proceeding be tried without a jury. Thus, a party has a prima facie right to have its matter heard by a jury. See also Shaw v Standard Life Assurance Company, 2006ABQB 156, 398 AR 181, 56 Alta LR (4th) 275 [Shaw] at para 7. [4] The Defendant describes this matter as “an uncomplicated personal injury action,” that will involve, among other things, anassessment of the Plaintiff’s credibility.

Such an issue, the Defendant argues, supports a jury application: Shaw at para 88. [5] The Plaintiff argues that the action is far from uncomplicated and provides his arguments based on the criteria set forth inJury Act s 17(2), and the factors outlined in Shaw, viz, i. the number of issues; ii. the number of experts; iii. the need for an interpreter; iv. the legal issues to be put to the jury; v. conflicts of expert opinions; vi. causation; and vii. other factors.

Shaw at para 29. [6] This Court will briefly deal with each of the Plaintiff’s arguments. [7] He argues that there are in excess of 2,600 pages of documents, of which “likely” 1,300 pages are relevant to the issues thatwill be before the court. He argues that the case at bar is similar to the situation in Alberta Laser Alignment Services Ltd vScandinavian Grinding Mills Systems Inc, 1998 ABQB 257, 222 AR 108 [Alberta Laser]. That case involved documents concerning aproject for which the plaintiff provided goods and services. It was not compensated for those goods and services.

The case involved notonly issues of contract, but also builders’ liens, and a claim for unjust enrichment. Wachowich ACJ, as he then was, outlines the“complicated” contractual issues that would be placed before the jury.

He expressed a concern about the number of produceabledocuments, but, unfortunately, he does not provide any idea as to the nature of those documents. [8] The Defendant, in the case at bar, questions the relevance of most of the pages of the documents and that, in any event, thejury need not spend an undue amount of time studying them, which is the test articulated by Rooke J, as he then was, in Shaw at para 14. [9] In this case, most of the documents are medical records.

The physicians and other health care providers will be providingviva voce evidence, which obviates the necessity for the jury to “study” the documents.

As well, as Wachowich ACJ said in Lentz vRiopel (March 5, 1996), Doc. 9303-10916 (QB), it is not the number of documents that is important, but whether the jury will need tospend an undue amount of time studying them. [10] We must remember that the main issue that will be before the court is to determine whether the Plaintiff’s injuries andsymptoms, which he self-reported to the medical practitioners and others, are as serious as he reports them to be. [11] One of the heads of damage that the Plaintiff claims is his loss of income.

He argues that because the Plaintiff was self-employed at the time of accident, the jury will have to spend a prolonged period reviewing financial information as it relates to thePlaintiff and his business. This Court disagrees. Again, the parties intend to produce experts that will be in a position to explain how onearrives at the income of a self-employed individual. As well, it will undoubtedly be provided with the Plaintiff’s income tax returns,which are not difficult to interpret. [12] This Court has reviewed each of the 18 exhibits that the Plaintiff attached to the affidavit he swore on July 11, 2016.

None ofthem are complicated, and, with the viva voce testimony of the various authors of those exhibits, it is this Court’s view that the jury willnot need to spend an undue amount of time studying them. [13] The Plaintiff argues that long and complex medical records will contribute to a scientific or technical examination, whichwould be inconvenient for a jury. As with the concern about the prolonged examination of documents, the parties intend to call many ofthe health care professionals who authored these documents.

As Picard J, as she then was, said in McVey v Petruk (1990), (AB KB), 111 AR 36 (QB) at para 17, “doctors are capable of explaining medical procedures and information to lay persons.” Seealso Hamblin v Markowski, 2004 ABQB 846 (QB). The length and complexity of the medical records is not the test. The test is whetherthe jury will be able to comprehend, recollect and analyze the scientific evidence presented to them: Saythavy v Elsahib, 2006 ABQB613, 405 AR 159 [Saythavy] at para 14.

[14] Many of the cases that the Plaintiff provided to this Court involved issues of, for example, reconstruction of accident scenes.Although this Court cannot provide a general statement that these types of cases might add an additional level of complexity, in thosecases, the courts found that they did. In the case at bar, those issues do not arise. [15] No doubt the length of the trial is a relevant consideration. The Plaintiff argues that this trial might take upwards of 21 days, whereas the Defendant argues that it should take no more than 10 days.

In Gorzko v Hager, 2000 ABQB 266 at para 11, 12 MVR (4th)41, Wachowich ACJ said that “a court should not be misled by the sheer volume of evidence to be presented at trial ... Instead the test iswhether the information will markedly lengthen the trial or will be of such a nature that it could not be understood by a lay jury.” [16] The issue of the length of the trial is related, in part, to the number of experts that the parties intend to put before the jury. ThePlaintiff deposes that he will need to present 16 expert.

The Defendant will present 5 experts, and suggests that direct and cross-examination of those experts will require 2 days. The sheer number of experts is not the test that this Court must apply to determinewhether it will allow this matter to be heard by jury. Rather, McMahon J said in Murdoch v Balfour, 2002 ABQB 494 [Murdoch] atpara 7, said the following: I am not to be unduly influenced by the number of expert witnesses since it is the complexity of the expected evidence and issues thatmust be considered ...

This Court feels the same. [17] As mentioned earlier, the issues in the case at bar are fairly narrow, and the decision will depend, in large measure, onwhether the reports the experts provide are cogent, in the minds of the jury. The issues themselves are not complex. When reviewing theexhibits, it became clear to this Court that much of content of the reports were based on the Plaintiff’s self-reporting. There was little interms of objective evidence. As well, the fact that some of the expert reports conflict in their substance is not the test that this Court mustapply.

Rather, the test is whether a jury will be in a position to understand the nature of the issues and discern the conflicting evidence:Green v Lloyd, 2001 ABQB 557, 322 AR 197. In Sinclair v Stehr, 2002 ABQB 374 [Sinclair] at para 5, McMahon J said the following: ... [I]t is apparent that the conflict in medical opinion arises not from differing medical views as much as from the credibility of the self-reporting of the patient. The central issue for the trier of fact then will be the plaintiff's credibility. The medical evidence is capable ofbeing put plainly before a jury and of being understood by them.

The same situation exists in this case. [18] Besides, when one looks at the list of expert witnesses that the Plaintiff has presented, there is some duplication in theirreports, and it appears that many of them will have little to report in terms of additional evidence. [19] We must remember that the parties are required to have this matter placed into case management, if this Court were todetermine that it will be heard by a jury.

The case management justice will have to make decisions concerning the necessity of theexperts, and whether the way in which the parties intend to proceed with this matter fall within the Alberta Rules of Court, Alta Reg124/2010, r 1.2. [20] The parties have advised this Court that during the independent medical examination that was conducted by Dr. AnthonyRussell, the Plaintiff asked that the examination be videotaped. As well, there is apparently a surveillance videotape of the Plaintiff. ThePlaintiff argues that the video evidence will add to the trial’s complexity. This Court fails to see how that is so.

In fact, it might simplifythe trial, and the evidence the parties present. [21] The Plaintiff also argues that the legal issues to be put to the jury involve complex questions of law, because, for example,they involve numerous heads of damages. This Court disagrees. The numbers of heads of damages has not prevented similar, morecomplex cases, from being heard by a jury. See e.g., Murdoch; Saythavy; Sinclair; Montague v Wilson, 2002 ABQB 649; Junuzovic vKostenuk, 2008 ABQB 347 [Junuzovic].

Cases where a jury trial have been refused involve, for example, estate matters (Shannon vMcCullough, [1996] AJ No 405 (CA)); matters in which the plaintiff sought equitable remedies (Alberta Laser; Alberta (ProvincialTreasurer) v Gordey Construction Ltd (1991), 1991 ABCA 250 , 120 AR 282 (CA)); and workers’ compensation claims(Greenwood v Sycrude Canada Ltd (1998), 1998 ABQB 570 , 240 AR 130 (QB). The case at bar does involve any suchcomplex issues of law. [22] The Plaintiff bears the onus of demonstrating that this matter cannot be conveniently heard by a jury: Junuzovic at para 10,Murdoch at para 8.

In the case at bar, the Plaintiff has not met his burden. Thus, this Court grants the Defendant’s application to havethis matter tried before a jury. The Defendant must post the usual costs. [23] The Defendant will have her costs of this application. Heard on the 21st day of October, 2016. Dated at the City of Calgary, Alberta this 10th day of November, 2016.

K. D. Yamauchi J.C.Q.B.A. Appearances: Edward Tawkin Tawkin Law Offices for the Plaintiff Don Dear, QC McLennan Ross LLP for the Defendant