Martin v Walsh, 2017 ABQB 793

Court of Queen’s Bench of Alberta Citation: Martin v Walsh, 2017 ABQB 793 Date: 20171220 Docket: 0806 00114 Registry: Lethbridge Between: Gary William Martin Plaintiff - and - Keith Christopher Walsh Defendant And Between: Gary William Martin Plaintiff - and - Bridge City Chrysler Ltd. and Chrysler Canada Inc. Defendant _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] Gary Martin brings a claim in tort and contract asking for damages well in excess of $75,000.00. He applies to this Court for an order under s17(2) of the Jury Act , RSA 2000 c J-3, seeking to have the trial heard by a civil jury. He also seeks to have the Court provide directions on how to deal with experts and to assist in streamlining the evidence for the jury. [ 2 ] The relevant portions of s17 of the Jury Act are 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 ...

(1.1) If, on an application made under subsection (1) or on a subsequent application, a judge considers it appropriate, the judge may direct that the proceeding be tried by judge alone pursuant to the

summary trial procedure set out in the Alberta Rules of Court .

(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 been directed to be tried by a jury, direct that the proceeding be tried without a jury. [ 3 ] The defendants Bridge City Chrysler Ltd. and Chrysler Canada Inc. concede that Gary Martin has prima facie met the test for a jury trial but strongly oppose the discretionary order, due to the fact that this matter is far too inconvenient and complex to be heard by a jury. [ 4 ] The parties agree that this case is not amenable to

summary trial. Plaintiff’s Argument [ 5 ] The plaintiff argues that he has met the required prima facie grounds to have a jury trial, and that the issues have already been, or will be, reduced to the point that a jury will not be too inconvenienced in hearing this civil trial.

In support of this, the plaintiff highlights many other cases which he asserts are product liability cases that were determined suitable for resolution by a jury. [ 6 ] The plaintiff emphasizes that there is still a great deal of simplification to occur through matters such as the use of the business record rule; the streamlining of which expert reports, or portions of expert reports, will be admissible; more effective compilation of the notices to admit and the responses; and discussion regarding the precedent jury trial instructions. [ 7 ] The plaintiff asserts presentation of his case will take only seven days, and the entire trial can be completed in 13.

For all these reasons, the defence has not shown that a jury trial would be inconvenient. Defendant’s Argument [ 8 ] The defence argues strongly that the decision of Justice Rooke (as he then was) in Shaw v Standard Life Assurance Co , 2006 ABQB 156 , is determinative in this case, resulting in a refusal of the applicant’s request for jury trial. Specifically, defence argues that it is plain and obvious that this action is “too inconvenient” for a jury trial due to the voluminous documentary and expert evidence which is very scientific in nature.

The issues are multiple and complex, such as the physical mechanisms of the collision and the injury; the determination of whether either of the two remaining defendants bear any responsibility for product liability arising from negligent design, a failure to warn, or negligent misrepresentation; and if there is any liability, the quantum assessment of the plaintiff’s damages.

The jury will not be able to adequately follow the competing experts and they will not be able to resolve the dispute in relation to the complex issues of causation and standard of care. [ 9 ] As well, defence argues that Shaw v Standard Life sets a presumption that any trial of 15 days or longer is presumptively inconvenient. The defence asserts that this matter is of such complexity that it cannot be tried in less than 15 days: there will 13 plaintiff expert witnesses, 7 defence expert witnesses, and additional lay witnesses. The defence also anticipates lengthy legal submissions, further lengthening the trial.

Reasons [ 10 ] It is important to note that the Shaw v Standard Life decision was decided under the former Rules of Court , Alta Reg 390/1968 . The current rules provide considerable tools for counsel and the Court to streamline the litigation process. They also place a high onus on counsel to work collaboratively to get to the real issues. Specifically, rules 1.2(3) and (4) state as follows:

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [ 11 ] The plaintiff’s argument may very well be persuasive for an order for a jury trial. However, the defendant has valid points about the current length of trial and complexity of issues as it relates to the number of expert witnesses and the volume of material.

At this point Shaw v Standard Life seems to be on the side of the defendants. [ 12 ] Using the new Rules of Court , Alta Reg 124/2010 , much can be done to deal with the number of expert witnesses and the length of their written opinions. For example, it is my understanding that the

section of rule 5.36 dealing with experts and expert reports has not been utilized to date by counsel. Specifically, the party receiving the expert’s report has not made their pre-trial reply. Further, rule 5.37 has not been utilized. It seems that utilizing these two rules may bring clarity or simplicity to some expert reports or result in the elimination of some reports all together. Further, the possibility of using rule 5.39 to allow the report of an expert to be admitted without the need of the expert to testify needs to be contemplated.

Many of the issues in rules 5.34 to rule 5.40 need to be addressed to determine the number of expert witnesses, the length of the trial, and the amount of material that will be required for the trial. [ 13 ] I am the Case Management Justice in this action and the rules that have just been cited need to be addressed before trial. I am therefore delaying a decision in this matter until after future case management meetings are held where I receive reports from counsel as to the steps they have taken pursuant to

part 5, division 2 of the Rules of Court . Counsel can address each of those rules and work out solutions, or if they are not successful, then the matter can be brought before me as Case Management Justice for a further meeting. [ 14 ] Accordingly, I am directing counsel to address their minds to the rules in question and collaborate as required by rule 1.2 to address the issue of the expert reports and which experts need to be called to testify. If agreement can’t be reached by counsel on how to address this matter they are at liberty to arrange a further case management meeting with me.

I trust that that can be arranged by no later than February 28, 2018 and a case management meeting be held in March, 2018. [ 15 ] In the meantime the application brought by the plaintiff is adjourned sine die to be brought before me on 10 days notice. Heard on the 28 th day of November, 2017. Dated at the City of Lethbridge, Alberta this 20 th day of December, 2017. D.K. Miller J.C.Q.B.A. Appearances: Travis Bissett, Stringam LLP for the plaintiff Lorena K. Harris, Dentons Canada LLP for the defendant