Jeffery v Leveque, 2024 ABKB 45

Court of King’s Bench of Alberta Citation: Jeffery v Leveque, 2024 ABKB 45 Date: Docket: 2001 05283 Registry: Calgary Between: Deanne Marie Jeffery Plaintiff - and - Peter Leveque Defendant _______________________________________________________ Reasons for Decision on Application for Civil Jury Trial of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] The plaintiff applies for this action to be tried by a jury. [ 2 ] The parties were married in 1983. They separated in January, 2003.

The plaintiff commenced a divorce and division of matrimonial property action on November 27, 2003. [ 3 ] A divorce judgment and corollary relief order was granted on February 11, 2019. There is evidence that the parties entered into minutes of settlement dated July 19, 2007. However, neither party has been able to locate a copy and counsel agree it is unlikely one

will be found before trial. [ 4 ] This action was commenced on April 14, 2020. The plaintiff alleges that during the marriage, her husband subjected her to physical and sexual assaults, causing personal and psychological injury (including damage to her jaw, temporomandibular joint disorder, daily headaches, depression and anxiety).

She seeks compensation of approximately $325,000 for loss of income, loss of earning capacity, out-of-pocket treatment expenses, aggravated and punitive damages. [ 5 ] The plaintiff was in three motor vehicle accidents during the period between the events alleged in the statement of claim and the filing of the statement of claim. She admits that these accidents worsened some of the injuries claimed. She also experienced a slip- and-fall at work which caused injuries.

Further, she admits that she experienced depression and anxiety before the torts allegedly committed by the defendant. [ 6 ] The defendant pleads that: a) “All claims and defences with respect to . . . [the marriage] should have been and were brought forward” during the divorce action and the minutes of settlement;

b) The plaintiff’s claims have been settled and discharged by the minutes; c) “Any cause of action . . . has merged in the divorce judgment and has ceased to exist”;

d) The plaintiff’s claims are against the defendant and his property, “which are estopped” by the minutes and the divorce judgment;

e) The action is “an improper and abusive attempt to renegotiate or vary the terms” of the minutes;

f) The action is a collateral attack on the minutes and divorce judgment; and

g) The plaintiff has delayed inordinately and without reasonable excuse in commencing her action. II. The Jury Act [ 7 ] Section 17(1) of the Jury Act , R.S.A 2000, c J-3 , says that, subject to other provisions, on application some actions “shall” be tried by jury. Those include an action founded on any tort or contract and an action for recovery for property, if the claims exceed an amount prescribed by regulation. The Jury Act Regulation (AR 68/83 ) sets those minimum amounts at $75,000 for actions commenced on or after March 1, 2003. [ 8 ] The “subject to” provision is important. Section 17(2) says if it appears that the trial might involve (

a) a prolonged examination of documents or accounts (

b) a scientific or long investigation, that the judge thinks cannot be conveniently made by a jury, a judge may direct trial without a jury. III. Issues [ 9 ] The plaintiff says her action is founded in tort and the amount claimed exceeds that prescribed in the regulations.

Thus, it is for the defendant to show that there would be a prolonged examination of documents or accounts or a scientific or long investigation, that cannot conveniently be made by a jury. [ 10 ] The plaintiff’s affidavit states that her family physician and clinical social worker will be expert witnesses at trial, testifying to the physical and psychological injuries she suffered. The reports are attached as exhibits: the first is three and a quarter pages, the second a little over one page. No further plaintiff experts are expected.

The plaintiff further states that, on advice of counsel, “records going to core issues total no more than 100 pages” and that “no more than 10 witnesses are expected . . ., with no more than four of those witnesses being experts.” [ 11 ] The defendant initially argued that this action requires the trier of fact to determine whether the action “is estopped by virtue of the doctrine of res judicata – an equitable defence not properly determined by a jury” (brief para 3).

The defendant said res judicata is an equitable doctrine and abuse of process is also rooted in equitable principles. [ 12 ] In further argument, the defendant acknowledges that res judicata and abuse of process are legal doctrines but submits that each require the court to exercise discretion.

The defendant argues this discretionary aspect makes the doctrines analogous to equitable doctrines which are unsuitable for trial by jury. [ 13 ] On the so-called “convenience” factors of section 17(2) of the Jury Act , the defendant’s affidavit says he is advised by his counsel “that experts will be required to speak to the existence and extent of the physical and psychological injuries . . . as well as the quantum of damages to be awarded” (para 4). In his brief, the defendant argues that these issues are sufficiently complex so as not to be suitable for trial by jury.

However, all of this is speculation for now. There is no evidence that defence experts have been retained or what they would say. IV. Categorization A. Generally

[14] In Alberta, the right to a trial by jury for civil actions is purely statutory: Coulter v Co-Operators Life Insurance Company,2013 ABCA 295 at para 4. Thus, the claim must fall within the types of action set out in section 17(1) of the Jury Act to qualify. [15] There is no dispute that the plaintiff’s claims fall within section 17(1)(b), namely an action founded on any tort that exceedsthe prescribed amount. Thus, the plaintiff has a prima facie right to a jury: Shaw v Standard Life Assurance Co, 2006 ABQB 156 atpara 7.

The respondent has the onus to show that the matter cannot be conveniently tried by a jury, within the meaning of section 17(2):Shaw at paras 8, 10-11. B. Equitable and Common Law Defences [16] Binding authority holds that actions involving claims for equitable relief or equitable defences cannot be tried by a jury:Coulter at paras 7-10 and 16-37; Alberta (Provincial Treasurer) v Gordey Construction Ltd, 1991 ABCA 250 at para 11. Partly that isbased on the historical fact that equitable doctrines were dealt with in the Court of Chancery which sat without juries.

Also, it is based onthe wider scope for discretion required properly to apply equitable doctrines as compared with legal doctrines (such as in contract cases),all of which increases the difficulty of instructing a jury. Coulter makes the point that the section 17(1)(

a) causes of actions and remediesare not founded in equity. The

section is silent about equitable defences but Coulter extends the analysis to them. C. Equity-Like Defences [17] The statement of defence pleads, in effect, that the plaintiff’s action is barred by the divorce judgment and minutes ofsettlement. Such defences (as pleaded) give rise to res judicata, abuse of process and (possibly) a contractual defence – all of which arebased in law, not equity: Donald J.

Lange, The Doctrine of Res Judicata in Canada, 5th ed (Toronto: LexisNexis, 2021) at 4 to 13 and199 to 203. [18] The defendant’s reference to estoppel must be taken to mean an aspect of res judicata, as that defence has two arms: issueestoppel and cause of action estoppel: 864503 Alberta Inc v Genco Place Properties Ltd, 2019 ABCA 80 at paras 24-25; Bank ofMontreal v Cochrane, 2011 ABQB 259 at para 7. (There are types of estoppel that are founded in equity, such as promissory estoppeland proprietary estoppel. Typically, they require detrimental reliance.

No form of equitable estoppel is pleaded in this case.) [19] Thus, to the extent there is a prohibition on juries trying cases where equitable doctrines are raised by defence, it does notapply here. But it must still be considered whether there are equity-like features to these common law defences that rule out having themtried by jury. D. Role of Discretion in Res Judicata and Abuse of Process [20] Lists of criteria governing res judicata (issue and cause of action estoppel) and abuse of process can be distilled from thecases.

Issue estoppel requires a final decision, the same parties (or their privies) and the same issues: Toronto (City) v CUPE, Local 79,2003 SCC 63 at para 23; Bank of Montreal at para 18. Cause of action estoppel likewise requires a final judgment, the same parties and“subject matter germaine to the claim or defence which could have been brought forward in the first action by reasonable diligence”:Genco Place Properties at paras 25 and 26. [21] Overlaying the application of these criteria is an important element of discretion.

Even where the legal tests for issue or causeof action estoppel are met, the court retains a discretion “to allow the matter to continue in the interest of justice and fairness”: 574095Alberta Ltd v Hamilton Brothers Exploration Company, 2003 ABCA 34 at para 37; Danyluk v Ainsworth Technologies Ltd, 2001SCC 44 at para 62.

This means that even if the usual requirements of issue estoppel or cause of action estoppel are met thecourt nevertheless may allow a matter to proceed: ibid. [22] Similarly, even where the usual criteria for issue or cause of action estoppel are not met, there is a discretion to bar the actionfor abuse of process if “allowing the litigation to proceed would nonetheless violate principles of judicial economy, consistency, finalityand the integrity of the administration of justice”: Condominium Corporation No. 0828219 v Carrington Holdings Ltd, 2023 ABCA222 at para 10 citing Toronto (City) v CUPE at para 37.

It is an error not to address whether discretion should be exercised to bar anaction even where the usual criteria for res judicata have not been met: Hamilton Brothers at para 37. [23] The rules and principles of res judicata and abuse of process “call for a judicial balance between finality, fairness, efficiencyand authority of judicial decisions”: Toronto (City) v CUPE at para 15.

This has a number of implications, including that a labourarbitrator has no special expertise in applying such doctrines, leading to a less deferential standard of review: ibid. “Concepts of fairness,equity and justice are central” to the application of res judicata: Bank of Montreal at para 7. [24] As will be seen, the element of discretion involved in res judicata and abuse of process is relevant to the convenience analysisapplicable to all civil jury applications. V.

The Convenience Factors [25] Meeting the onus of showing that a case should not be tried by a jury despite falling within one of the causes of action named

in section 17(1) of the Jury Act principally involves looking at whether the trial might involve an examination or investigation thatcannot conveniently be made by a jury: section 17(2). The reference to examinations or investigations “that cannot conveniently be madeby a jury” in section 17(2) does not refer to personal convenience of jurors: McVey v Petruck (1990), (AB KB), 111AR 36 (QB) at para 20(h).

It relates to the ability of jurors to record, comprehend and collate evidence, and to recall, assess and analyzethe information: Shaw at para 10. [26] For many years the cases have extended the application of the convenience test beyond examinations or investigationsinvolving documents, accounts or scientific matters. A catalogue of factors going to the convenience test based on a review of extensivecaselaw was set out and described in detail in Shaw at para 11.

I will address those that are relevant for this case. [27] It is clear that on the record before me there is no concern about prolonged examination of documents or accounts, scientificor technical investigations. Nor is the expected length of trial – which the defendant puts at ten days – a concern for a jury trial. [28] The contemplated expert evidence is not extensive. The plaintiff’s expert reports are brief and quite comprehensible.

Thedefendant warns of expert reports but has offered none nor described what would be difficult about them. [29] The number and type of experts are well within the range of many personal injury actions. When addressing the ability ofjuries to deal with expert evidence, the cases observe that experts usually are capable of explaining their procedures, information andopinions to lay persons: McVey at para 17; Hamblin v Markowski, 2004 ABQB 46 at para 10. [30] Primarily, the defendant says causation issues make the case unsuitable for a jury.

He points to psychological distress existingbefore the alleged torts and subsequent injuries. Thus, there may be causation, apportionment and assessment of damages issues thatinvolve both legal and factual analysis. The factual issues in dispute, however, fall within the scope of experience possessed by mostpotential jurors. [31] The existence of legal issues seldom can be avoided in a jury trial, but juries do not perform their tasks unaided. Counsel willpresent arguments and evidence with a view to there being a jury.

The presiding judge will give instructions on how they are todischarge their duties, what the relevant law is, and how the evidence relates to the legal issues. [32] The special factor in this case is the discretionary element of the defences of res judicata and abuse of process.

These fallwithin what Shaw refers to as “legal issues to be put to the jury” (paras 11, 28, 29 and 39-44) and “other factors” (paras 51 and 52).Complex legal issues, especially when inextricably linked to questions of law, may make it “inconvenient for a jury” because too manyissues would be taken away from the jury and require sequential or alternative findings that would be unnecessary in a trial by judgealone: Shaw at para 28; Alberta Laser Alignment Services Ltd v Scandinavian Grinding Mills Systems Inc, 1998 ABQB 257 at paras14-15; Chaba v Greschuk, 1992 ABCA 377 CanLII at para 12.

These are the types of concerns informing the Coulter decision’s findingthat the prohibition of trying equitable claims by jury extends to trying equitable defences by jury: Coulter at paras 26-37. [33] Even theoretically, it is doubtful that the equity-like defences of res judicata and abuse of process could be considered in ajury trial.

Trying to do so would be impractical and inconvenient in the extreme for all concerned, because it would require seekingspecial verdicts on elements of the defence to be followed by the overriding exercise of discretion by the presiding judge (as therequirement of judicial discretion could not be exercised by a jury). Even the usual elements of the defences are legal questions mixedwith fact.

In this case, these defences make it inconvenient for trial by jury within the meaning of the Jury Act, as interpreted in theauthorities. [34] A final factor, seldom considered, is whether justice to both parties is best served with or without a jury: Shaw at para 51;Greenwood v Syncrude Canada Ltd, 1998 ABQB 570 at paras 13 and 18. In this case, attempting to have the issues of resjudicata and abuse of process determined in a jury trial would entail a high risk of an unfair process and decision. VI.

Conclusion [35] For the reasons given, I find that the defendant has met his onus of demonstrating that this is not a proper case for a jury. Theapplication for a civil jury trial is therefore dismissed. [36] The parties may

schedule a further appearance if there are matters to address arising from this decision. Heard on the 11th day of April and the15th day of December, 2023. Dated at the City of Calgary, Alberta this 25th day of January, 2024. G.H. Poelman J.C.K.B.A. Appearances:

Kristen D. Hagg and Taylor Hudson for the Plaintiff Emily Amirkhani and Filippo A. Titi for the Defendant