Caragannis v White, 2023 ABKB 428

Court of King’s Bench of Alberta Citation: Caragannis v White, 2023 ABKB 428 Date:20230718 Docket: 2003 10947 Registry: Edmonton Between: Lesley Caragannis and His Majesty the King in Right of Alberta Plaintiffs - and - Highbury Show Stables Ltd., Gareth Graves, Ash-Bren Equine Ltd., 1914423 Alberta Ltd. and Conlan White Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice G.S.

Dunlop _______________________________________________________ [ 1 ] On June 6, 2020 the plaintiffs sued the defendants for damages resulting from one of the plaintiffs, Lesley Caragannis, falling from a horse on July 7, 2018. On October 9, 2020 the plaintiffs discontinued the action against two of the defendants, Ash-Bren Equine Ltd. and 1914423 Alberta Ltd., leaving three defendants in the action: Highbury Show Stables Ltd., Gareth Graves and Conlan White. [ 2 ] Mr. White seeks an order that the trial of this action be held with a jury. Mr. Graves and Highbury support that application. The plaintiffs oppose it.

Because the plaintiffs claim more than $75,000 in damages from the defendants, I must grant the application for a jury trial unless the plaintiffs establish that this case falls within s. 17(2) of the Jury Act , RSA 2000, c J-3 : Greenwood v Syncrude

Canada Ltd. 1998 ABQB 570 at para 12 ; Van Essen v Marcinowski 2016 ABQB 634 at para 22 . [ 3 ] S 17(2) of the Jury Act reads:

(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. [ 4 ] The plaintiffs submit that the issues in this case are complex and will necessarily involve a long investigation which cannot conveniently be made by a jury. [ 5 ] The pleadings define the issues. The Statement Claim contains many allegations. Mr. Graves and Highbury admit some of those allegations in their Statement of Defence. Mr.

White admits none of those allegations in his Statement of Defence. Consequently, based on the pleadings, everything pled in the Statement of Claim will be in issue at trial. [ 6 ] However, in his affidavit in support of his application for a jury trial, Mr. White admits that he was Ms. Caragannis’s instructor when Ms. Caragannis fell from her horse during a riding/jumping lesson on July 7, 2018. Furthermore, during oral submissions on this application, Mr. White conceded that as a result of falling from her horse, Ms.

Caragannis suffered a complex facture of her knee which required surgery. [ 7 ] No other admissions were brought to my attention during the application. [ 8 ] The plaintiffs plead the following, none of which is admitted by the defendants: • Mr. White was an employee of Mr. Graves who provided riding instruction to Ms. Caragannis and training for Ms. Caragannis’ horse: Statement of Claim, para 9. • In order to receive training from Highbury and Mr. Graves, Ms.

Caragannis was required to board and ride her horse at a riding and boarding facility in Ardrossan, Alberta operated by Ash-Bren Equine and owned by 1914423 Alberta: Statement of Claim, para 6 - 8. • Ms. Caragannis entered into a contract with Mr. Graves, expecting that Mr. Graves or someone comparable to his skill set would provide the training and based on the promise of Mr. Graves’ expertise and the fact that he competed at elite levels of equestrian sport: Statement of Claim, para 13. • Mr. Graves and Decia Biller advertised themselves as a coaching team for Highbury and Ms.

Caragannis moved her horse to the Ash-Bren facility to obtain the benefits of learning from that team: Statement of Claim, para 17. • Mr. Graves and Ms. Biller provided approximately five lessons to Ms. Caragannis following which Highbury placed its employee, Mr. White, in the role of instructor for Ms. Caragannis’ class and as trainer for her horse. Despite promises by Mr. Graves and Highbury that this was a temporary arrangement, as of January 2018 Mr. White became the sole trainer and instructor of Ms. Caragannis and her horse: Statement of Claim, para 18 – 21. • Highbury and Mr.

Graves breached their contract with Ms. Caragannis by failing to provide experienced qualified coaching as promised, from January to July 2018: Statement of Claim, para 24. • The breach of contract resulted in the end of Ms. Caragannis’ riding career and the loss of her investment in her horse: Statement of Claim, para 25. • Highbury represented that Mr. White was a qualified and appropriate replacement instructor, when in fact he was negligent, reckless, and much less experienced as an instructor: Statement of Claim, para 26. • In June 2018, during a lesson taught by Mr. White, Ms.

Caragannis’ horse exhibited a fear of tires near a jump: Statement of Claim, para 29. • On July 7, 2018 Ms. Caragannis fell from her horse, suffering severe injuries. The fall was caused by Ms. Caragannis and her horse being required to jump over a vertical jump supported by two tires: Statement of Claim, para 31, 33 and 49. • Mr. Graves and Mr. White, as horse riding instructors, owed a duty of care to Ms. Caragannis which they breached by placing Ms.

Caragannis’s horse in a jumping situation in which it was not comfortable or accustomed: Statement of Claim, para 34, 35 and 40. • The defendants breached their duties of care in numerous other ways: Statement of Claim, para 41. • Mr. White, Mr. Graves and Highbury were occupiers of the Ash-Bren facility and breached their duty to visitors to ensure that the premises were safe: Statement of Claim, para 44 – 46. • Highbury breached the Consumer Protection Act , RSA 2000 c C-26.3 by advertising that its instructors were experienced, and that Mr.

Graves would participate in the instruction, but failing to fulfill those promises: Statement of Claim, para 47. [ 9 ] In addition to denying those alleged facts, Highbury and Mr. Graves plead the following:

• Ms. Caragannis knew or ought to have known that Mr. White was no longer in a business relationship with Highbury and Mr. Graves prior to July 7, 2018: Statement of Defence, para 4. • Ms. Caragannis voluntarily accepted the risk of injury and waived any claim against the defendants in writing: Statement of Defence, para 5. • Ms. Caragannis caused or contributed to her fall on July 7, 2018 by, among other things, failing to accurately disclose her previous riding experience and particulars about herself and her horse, failing to follow Mr.

White’s instructions, and taunting or provoking her horse: Statement of Defence, para 6. • Mr. White’s negligence caused Ms. Caragannis to be thrown from her horse: Statement of Defence, para 7. • Ms. Caragannis’ injuries, if any, relate to events or conditions that predate or postdate her fall from her horse: Statement of Defence, para 8. • Ms.

Caragannis failed to follow the advice of her medical caregivers and failed to take all necessary and reasonable steps to resume her pre-accident work and lifestyles: Statement of Defence, para 9. [ 10 ] In addition to his blanket denial of all allegations in the Statement of Claim, Mr. White pleads the following: • Ms. Caragannis wilfully accepted the risk of being thrown from her horse and waived any claim with respect to resulting injury or damage: Statement of Defence, para 6 and 7. • Ms.

Caragannis caused or contributed to her fall on July 7, 2018 by, among other things, failing to accurately disclose her previous riding experience and particulars about herself and her horse, failing to follow Mr. White’s instructions, and taunting or provoking her horse: Statement of Defence, para 8. • The other defendants’ negligence caused Ms. Caragannis to be thrown from her horse: Statement of Defence, para 9. • Ms. Caragannis’ injuries, if any, relate to events or conditions that predate or postdate her fall from her horse: Statement of Defence, para 12. • Ms.

Caragannis failed to mitigate her injury, loss or damage and her claims are exaggerated, too remote or otherwise unrecoverable: Statement of Defence, para 13. [ 11 ] The plaintiffs’ claims include breach of contract, negligence and negligent misrepresentation. Highbury admits it had a contract with Ms. Caragannis. Mr. Graves and Mr. White deny that they had any contract with Ms. Caragannis. Mr. White denies that there was a contract between Highbury and Ms. Caragannis. All three defendants deny making most of the representations alleged in the Statement of Claim. They also all deny that Mr.

White was employed by Mr. Graves or Highbury. [ 12 ] All three defendants deny that Mr. Graves or Mr. White owed a duty of care to Ms. Caragannis and all three allege that Ms. Caragannis waived any claim she may have had against them. [ 13 ] In response to the application for a jury trial, Ms. Caragannis filed an affidavit which attaches as an exhibit an affidavit sworn by Mr. White in 2021 in support of a

summary dismissal application. The

summary dismissal application was unsuccessful. Mr. White attaches to his 2021 affidavit a document he describes as a waiver. The document is entitled “Acknowledgement of Risk and Release of Liability”. The opening words of that document are: The following waiver of all claims, release from all liability, assumption of all risks, agreement not to sue and other terms of this agreement are entered into by me (the Participant) with and for the benefit of ASH-BREN EQUINE LTD. its directors, officers, employees, volunteers, business operators, agents and site property owners or lessees (collectively the “Host” ).

Without limiting the generality of the foregoing, “Equine Activities” includes but is not limited to trail rides, pack trips and riding instructions provided by the “Host” to the Participant. (underlining added) [ 14 ] The waiver does not specifically name any defendant other than Ash-Bren. The plaintiffs discontinued their claim against Ash-Bren. It is unclear on the material before me whether Highbury, Mr. Graves or Mr. White can establish that they are or were “directors, officers, employees, volunteers, business operators, agents and site property owners or lessees” of Ash-Bren.

That may be an issue in the trial. [ 15 ] Mr. White submits that the existence of a waiver does not make an action too complicated for a jury. On this point, he cites Kempf v Nguyen 2015 ONCA 114 in which one cyclist sued another for injuries suffered in a crash during a large charity bicycle ride. Damages were settled before trial. The only issue was the extent to which the defendant was liable for the plaintiff’s injuries. The case was set for trial with a jury but at the opening of the trial the plaintiff applied to strike the jury notice and discharge the jury.

The trial judge granted that application, finding that the jury would be confused by the implications of a waiver the plaintiff had signed before entering the event. The Ontario Court of Appeal held that was an error at para 57 – 58: The limited application of the waiver is hardly beyond the ken of members of a jury. I cannot see how a properly instructed jury would have difficulty understanding that the document was not a bar to Kempf’s action. The waiver is a contract between the participants and the ride organizers.

It is not a contract between Kempf and Nguyen, nor does it contain any terms that release other ride participants from liability for their negligence. In any event, civil juries in Ontario are able to decide issues involving contracts: see e.g. , Wadhwani v. State Farm Mutual Automobile Insurance Co. , 2013 ONCA 662 , 2013 CarswellOnt 15078 (Ont. C.A.) , at para. 2 ; Barlow v. Citadel General Assurance Co. , 2009 ONCA 106 , 94 O.R. (3d) 399 (Ont. C.A.) , at para. 1 .

This is, as counsel for Kempf described it in oral argument, a rather simple personal injury action. There was a collision between twocyclists. Sadly, one was seriously injured. To determine liability the jury would have to sift through the often-conflicting evidence, makefindings of fact and apply the law as explained to them by the trial judge. This is what juries do every day. [16] The Kempf case was far simpler than the case before me.

There was a single defendant in Kempf and no issues regardingwhether one defendant employed another or whether the defendant had a contract with or made misrepresentations to the plaintiff. [17] If the action before me were to proceed to a jury trial, the jury would have to be instructed by the trial judge and apply the lawregarding: • formation and construction of contracts, including waivers; • pre-contractual representations; • indicia of employment and vicarious liability flowing from employment; • the existence of a duty of care in negligence; • the elements of negligent misrepresentation; • liability where there are overlapping contractual and negligence duties; and • waiver of rights with respect to contractual and negligence claims, including which potential defendants are entitled to theprotection of any waiver. [18] Those are just some of the areas of law which the jury would have to apply.

One or two of these might be manageable by ajury. The group of them together create a nest of interconnected issues which are likely to make a trial by a jury inconvenient. I envisiona lengthy charge by the trial judge followed by numerous questions from the jury room. [19] This is similar to the situation in Alberta Laser Alignment Services Ltd. v Scandinavian Grinding Mills Systems Inc. 1998ABQB 257 at para 14 - 15: As regards the contract issue, the following matters may arise: formation of contract, certainty of terms, privity of contract, consensus adidem, unilateral and mutual mistake, and economic loss.

Many of the matters in this action are issues of law, or issues of closely relatedfact and law, which will be either too complicated to be determined conveniently by a jury within the meaning of s. 16(2) or will end upbeing determined by the judge anyway, considerably minimising the role of the jury. In circumstances such as this, where there are several causes of action which may fall by the wayside upon certain determinations of fact,there is a distinct advantage in having a judge sit alone. [20] Mr. White submits that the only potentially complex issue in this case is whether Ms.

Caragannis’ diabetes was caused by theinjuries she suffered in her fall from her horse. It is not clear to me on the evidence on this application that the cause of Ms. Caragannis’diabetes will be an issue at trial. Given the breadth of the injuries pled in the Statement of Claim, it may be. As I have set out above,there will be many other issues. I disagree with Mr. White’s submission that medical causation is the only complex issue with which thejury will have to grapple. [21] In oral submissions before me the plaintiffs went first, followed by the defendants.

I proposed that order because in this casethe onus is on the plaintiffs to establish why the case should not be heard by a jury. With one exception, the defendants did not respondregarding the numerous legal issues the plaintiffs identified in their submissions. The one exception is breach of fiduciary duty whichMr. White submits is not pled. On that point, I agree; the Statement of Claim does not plead facts to support a claim based on breach offiduciary duty. However, that leaves all the other issues raised by the plaintiffs, on which I heard no submissions from the defendants.

Ihave include some of the issues raised by the plaintiff during oral argument in my list of issues in these reasons. [22] Although it involved a different claim (wrongful dismissal), the reasoning in Greenwood v Syncrude Canada Ltd. 1998ABQB 570 at para 18 – 19 applies here: I find that it is not in the best interest of either party to have a jury attempt to disseminate the many layers of law and complex evidencethat will form this proceeding. This principle was addressed by the Alberta Court of Appeal in Chaba v. Greschuk et al. (1992), 1992ABCA 37 , 127 A.R. 133 at 135.

There, the Court illuminated the problems of requiring a jury to make decisions on inter-connected issues. In situations where a judge could give determinative verdicts on each issue as it comes up a jury would have to hear allthe evidence and arguments and then be briefed on the legal issues and standards to be applied to the pleadings. The Court stated: So, it is necessary for a jury to hear all the evidence on both sides and to hear all argument and be fully charged on every legal issuewhich may prove relevant on one view or another of the evidence.

That makes it certain that the examinations here would be prolonged. The proceedings in question here would necessarily be much longer if a jury had to analyse the arguments and evidence and be briefedon all the applicable legal standards. It is difficult to accept that it would not be inconvenient for a jury to do this. [23] I conclude that the trial of this action will involve a long investigation of numerous interconnected legal issues that cannotconveniently be made by a jury. Consequently, Mr. White’s application for a jury trial is dismissed. [24] If the parties are not able to agree on costs, they may

schedule a one-hour hearing before me on that issue, no later thanSeptember 29, 2023.

Heard on the 20 th day of June, 2023. Dated at the City of Edmonton, Alberta this 18th day of July, 2023 . G.S. Dunlop J.C.K.B.A. Appearances: Eliza Maynes Maynes & Radovici Lawyers for the plaintiffs Sean M. Stepchuk for the defendant, Conlan White Ken Haluschak Bryan & Company LLP for the defendants, Highbury Show Stables Ltd. and Gareth Graves