David Walsh v. LENORA WALSH, 2019 NLSC 131

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Walsh v. TRA Company Limited , 2019 NLSC 131 Date : July 09, 2019 Docket : 200101T1035 Between: David Walsh and LENORA WALSH Plaintiffs And: TRA Company Limited First Defendant And: Foodland Limited Second Defendant And: Sobeys Group Inc. Third Defendant AND: SOBEYS CAPITAL INCORPORATED FOURTH DEFENDANT AND: SOBEY’s LAND HOLDINGS LIMITED FIFTH DEFENDANT AND: JOSEPH GREEN SIXTH DEFENDANT Before: Justice Glen L.C. Noel

Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 26 and 27, 2019 July 3, 2019

Summary: The application of the Plaintiffs for a civil jury trial was dismissed primarily on the basis of the trial management factor and delay inbringing the application. Costs were awarded to the Defendants on Column 3 for one counsel to be taxed at the conclusion of all proceedings in this matter, andset off against any cost awards in favour of the Plaintiffs. Appearances: Paul D. Dicks, Q.C. Megan S. Reynolds Appearing on behalf of the Plaintiffs Colm St. R J Seviour, Q.C. Jonathan D. Dale Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Walsh v. TRA Co., [2006] N.J.

No. 389, 2006 CarswellNfld 376 (S.C. (T.D.)); Walsh v. TRA Co., 2007NLCA 50; Walsh v. T.R.A. Co., 2015 NLTD(G) 27; Walsh v. T.R.A. Co., 2016 NLTD(G) 119; Walsh v. T.R.A. Company Limited, 2018NLSC 178; Clarke v. Manufacturers Life Insurance Co., 2003 NLSCTD 40; Brewer v. Hewitt, 2005 NLCA 30; Royal Bank v.MacDonald, 2005 NLTD 135; Brewer v. Metro General Insurance Corporation Ltd., 2010 NLTD(G) 170; Pearce v. Anderson, 2015NLTD(G) 33; Whiten v. Pilot Insurance Co., 2002 SCC 18; Bella v. Young, 2006 SCC 3; Sanitary Products Ltd. v. Wells (1995), (NL CA), 135 Nfld. & P.E.I.R. 318, 420 A.P.R. 318, (Nfld.

S.C. (C.A.)); Atlantic Mack Sales (NB-NS) Inc. v. CiticapitalCommercial Corp./Citicapital Corp. Commerciale, 2004 NBQB 272; Earle v. Christian Brothers of Ireland in Canada (1994), (NL SC), 124 Nfld. & P.E.I.R. 254, 36 C.P.C. (3d) 341 (Nfld. S.C. (T.D.)); Cabana v. Newfoundland and Labrador, 2018NLCA 52; Tshakapesh v. Oblates of Mary Immaculate, 2005 NLTD 14; R. v. Jordan, 2016, SCC 27 STATUTES CONSIDERED: Jury Act, 1991, S.N.L. 1991, c. 16 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D INDEX Page INTRODUCTION........................................................................................... 5 BACKGROUND............................................................................................. 5

PROCEDURAL HISTORY ............................................................................ 7 ISSUE ............................................................................................................. 10 ANALYSIS .................................................................................................... 11 Applicable Legislation and Rules of Court .............................................. 11 Guiding Authorities on Exercise of Discretion ......................................... 12 1) Typological ...................................................................................... 15 2) Functional ........................................................................................ 19 3) Trial Management ........................................................................... 23 4) Other Relevant Factors ................................................................... 25 Delay................................................................................................ 25 Available Court Resources................................................................ 26

Section 37 of the Act .......................................................................... 27 CONCLUSION .............................................................................................. 28 COSTS ........................................................................................................... 28 DISPOSITION ............................................................................................... 29 REASONS FOR JUDGMENT Noel, J. : INTRODUCTION [ 1 ] The Plaintiffs have applied pursuant to Section 32(3) of the Jury Act, 1991, S.N.L. 1991, c. 16 , (the “ Act ”) as amended for a civil jury trial in this commercial tort action. [ 2 ] The action has had a long and winding journey through our Court for the past 18 years.

The Plaintiffs at ages 77 and 76 do not have the luxury of time on their side for this case to drag on for several more months and years. The Court owes it to the parties to see an end to this. [ 3 ] By Order of the Chief Justice filed on June 10, 2019, I was appointed the Case Management Judge following Justice Butler’s elevation to the Court of Appeal. It is incumbent upon me to assist the parties in finding a clear path forward to resolve this protracted litigation. [ 4 ] The relief sought herein is subject to a discretionary order of the Court.

The onus is on the Plaintiffs to persuade me that the action would benefit from a jury trial. In the exercise of my discretion, I must consider whether a jury trial at this juncture is appropriate and in the best interest of justice.

BACKGROUND [ 5 ] The action is based on the alleged failure of the Defendants to pass along certain purchasing deals to two corporations of which the Plaintiffs were the sole beneficial shareholders (the “Plaintiffs Corporations”), with one Corporation owning and operating a store in Bay Bulls, Newfoundland and Labrador and the other Corporation owning and operating a store on Merrymeeting Road in St.

John’s, Newfoundland and Labrador. [ 6 ] The alleged contract was not in writing and the parties disagree as to the specific entitlements of the Plaintiffs’ Corporations. [ 7 ] The Plaintiffs’ Corporations are not parties to this litigation, and the Plaintiffs sold their shares in the Plaintiffs’ Corporations several years prior to the issuance of the Statement of Claim. [ 8 ] The factual allegations underpinning the pleaded causes of action are that the Defendants made inaccurate misrepresentations,

which induced the Plaintiffs’ Corporations to enter into the supply arrangement with the Defendants, and made later misrepresentations to the effect that the Plaintiffs’ Corporations were in fact receiving the benefit of all deals. [ 9 ] The Plaintiffs originally framed their claim in contract and tort. However, after previous court applications, the Plaintiffs abandoned the claim for breach of contract and are pursuing claims in their personal capacities as follows: a. Fraudulent misrepresentation; b. Negligent misrepresentation; and c.

Negligence. [ 10 ] As a result of the alleged misrepresentations and negligence, the Plaintiffs claim the following damages: a. General damages, including but not limited to loss of the ability to work in the retail food industry, loss of reputation and mental anguish; b. Special damages, including but not limited to losses resulting from having sold their shares at an artificially low price and loss of income; and c. Exemplary Damages (for fraudulent concealment and abuse of trust).

PROCEDURAL HISTORY [ 11 ] To appreciate the full extent and nature of this litigation requires an overview of its procedural and judicial history. [ 12 ] The Statement of Claim was filed on April 6, 2001. [ 13 ] On application of the Defendants, the action was struck out by Orsborn, J. in Walsh v. TRA Co. , [2006] N.J. No. 389, 2006 CarswellNfld 376 (S.C. (T.D.)), but reinstated by the Court of Appeal in Walsh v. TRA Co. , 2007 NLCA 50 (the “ Reinstatement Decision ”). [ 14 ] With the consent of the Defendants, the Statement of Claim was amended in 2011 and further amended again in 2014.

The Further Amended Statement of Claim filed on September 14, 2014 is what governs the pleadings in the matter. [ 15 ] The Defendants brought subsequent applications to strike, first on the ground that the Plaintiffs claimed damages are corporate losses which they cannot recover in law (the “ Derivative Decision ”, Walsh v. T.R.A. Co., 2015 NLTD(G) 27 ); and secondly on the ground that the action is barred by time limitations (the “ Limitations Decision ”, Walsh v. T.R.A. Co ., 2016 NLTD(G) 119).

Although these applications were dismissed, the Defendants’ corporate losses and limitations defences subsist as substantial defences. [ 16 ] During Case Management in September 2016, Plaintiffs’ counsel indicated that the matter was ready for trial and asked that the matter be placed on the Pre-Trial List.

The Defendants agreed. [ 17 ] On November 28, 2016, the matter was set down for a five-week trial, scheduled to start on March 20, 2018. [ 18 ] Through the Case Management process, the parties agreed on timelines for the circulation of expert reports on damages, which would be relied upon at trial and available for consideration at a Court Ordered Settlement Conference. There was some delay on the part of the Plaintiffs in obtaining their trial-ready expert report and the Settlement Conference was ultimately rescheduled.

The Plaintiffs were required by the Case Management Judge to circulate their expert report on damages prior to the Defendants submitting any expert report. [ 19 ] The Plaintiffs produced their trial-ready expert report on damages on October 13, 2017 (the “Plaintiffs’ Expert Report”). The Defendants produced their trial-ready expert report on damages on December 21, 2017 (the “Defendants’ Expert Report”). The Defendants’ Expert Report included a response to the Plaintiffs’ Expert Report. [ 20 ] The Settlement Conference was held on January 16, 2018.

The parties were unable to reach a settlement. [ 21 ] On February 8, 2018, Plaintiffs’ legal counsel from about the year 2006 advised the Defendants that they had terminated their retainer with the Plaintiffs. Counsel subsequently applied for removal and were removed by Court Order. The Plaintiffs had two prior counsel in the years from 2001 to 2002, and 2003 to 2006. [ 22 ] As the Plaintiffs were then unrepresented and the trial was approximately six weeks away, the trial was rescheduled to commence on September 24, 2018.

After a brief period of being self-represented, the Plaintiffs retained new counsel. [ 23 ] Counsel on behalf of the Plaintiffs brought an application for bifurcation, which was dismissed by judgment of Butler, J. rendered on August 28, 2018 (the “ Bifurcation Decision ”, Walsh v. T.R.A. Company Limited , 2018 NLSC 178 ).

[ 24 ] Before the start of trial counsel for the Plaintiffs at the time withdrew as counsel. [ 25 ] The matter was then case-managed with the Plaintiffs being self-represented.

The Plaintiffs indicated in the case management process that they intended to conduct the trial, scheduled for commencement on September 24, 2018, as self-represented litigants. [ 26 ] The start of the trial was moved back to October 1, 2018 after the self-represented Plaintiffs indicated who they intended to call as witnesses, and confirmed that they would not be calling the author of their previously provided trial-ready Plaintiffs’ Expert Report. [ 27 ] As a result of the Plaintiffs electing not to call their expert, the Defendants obtained and circulated a revised expert report, which removed the references, reviews and critique of the Plaintiffs’ Expert Report. [ 28 ] At the request of the Plaintiffs, the Defendants, including their client who flew in from out of Province, met with the Plaintiffs at a further Settlement Conference on September 26, 2018.

Mr. Walsh had a serious health incident during the Settlement Conference. Mr. Walsh was subsequently checked out and cleared medically. [ 29 ] The Defendants prepared for and attended on the first day of trial on October 1, 2018. At the start of trial, Mr. Walsh sought a brief postponement for medical reasons and asked that the trial commence slightly later within the allotted time in October, 2018. [ 30 ] The Defendants suggested that the trial be postponed until such time that Mr. Walsh could confirm that he was medically able to proceed. Mr.

Walsh and the Court agreed and the matter was removed from the trial list. Counsel for the Plaintiffs at the within Application explained that the stress Mr. Walsh was under was attributable to having to attend a Settlement Conference and trial without the benefit of counsel. Counsel assured the Court there are no known medical impediments for Mr. Walsh now proceeding with this matter.

In fact, the Plaintiffs were present in Court during the hearing of this and related matters. [ 31 ] Current counsel, Benson Buffett, became solicitor of record on October 18, 2018. [ 32 ] In addition to this application, there are two more Applications before the Court. One by the Defendants seeking security for costs and the other by the Plaintiffs for further document production. [ 33 ] Arising from the production order sought, counsel for the Plaintiffs intend to seek a new expert report quantifying the alleged economic loss.

Counsel for the Defendants indicated there will be a reply report from Defendants’ expert to the new Plaintiffs’ Expert Report, and possible request sought for Discovery of the Plaintiffs’ expert. [ 34 ] Accordingly, over 18 years out, this action is still not ready for trial. ISSUE [ 35 ] When ought the Court exercise discretion to grant a civil jury trial, and what are the factors that govern the exercise of the Court’s discretion in this matter?

ANALYSIS Applicable Legislation and Rules of Court [ 36 ] The statute and rules of relevance to civil jury trials are found in the Act and the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D (the “ Rules ”) , as amended. [ 37 ] The following are the relevant provisions of the Act : 31.1

(1) In a civil cause or issue a jury consists of 6 jurors as selected under

section 24 and (

a) any 5 jurors may return a verdict or answer a question put to the jury by the judge; and (

b) a verdict or answer given by 5 jurors has the same effect as a verdict or answer given by 6 jurors.

(2) Notwithstanding paragraph (1)(a), 5 jurors in a civil cause or issue may return a verdict if the jury cannot agree upon a unanimous verdict after 3 hours of deliberation. 32.

(1) In actions of defamation, malicious prosecution or false imprisonment, the plaintiff and the defendant may indicate in a certificate of readiness filed under the Rules of the Supreme Court, 1986 that he or she wishes the issues of fact tried by a judge with a jury.

(2) Upon a request made under subsection (1) a judge shall order that the issues of fact shall be tried by a judge with a jury.

(3) A judge may make an order for a trial with a jury in another cause or matter where a party makes a request in a certificate of readiness filed under the Rules of the Supreme Court, 1986 , or in manner and at those times as the court may allow.

(4) A judge who orders a trial with a jury under subsections (2) or (3) may make an order regarding the expenses of the jury in the conduct of that trial. 36. Where it appears to a judge in chambers or a judge presiding at a trial that an issue of fact should be tried or damages assessed without a jury, the judge may, in his or her discretion or upon application by a party, direct that the issue be tried or damages assessed without a jury. 37.

Where a matter is heard by a judge without a jury, the judge may order a cause, matter, or issue to be tried by judge with a jury. [ 38 ] Rule 45.01 of the Rules provides as follows: 45.01 Where permitted by The Jury Act or any other Act , the issues of fact and the assessment of damages in a proceeding may be tried by a judge with a jury. Guiding Authorities on Exercise of Discretion [ 39 ] I approach this decision cognizant that we have a paucity of experience with civil jury trials in this jurisdiction. Green, C.J. (as he then was) in Clarke v.

Manufacturers Life Insurance Co. , 2003 NLSCTD 40 pointed out (at paragraph 12): “… since 1975 there have been only 4 civil jury trials conducted in this province.” Counsel have not submitted anything to refute there has only been one civil jury trial following the rendering of the Clarke decision, and that Clarke resolved prior to proceeding to a jury trial. [ 40 ] In the exercise of the Court’s discretion, I am bound to follow the guidance as set out in Brewer v. Hewitt , 2005 NLCA 30 , a decision of our Court of Appeal.

Brewer involved an appeal of the applications judge’s dismissal of the plaintiff’s application for a civil jury trial in an assessment of damages for a personal injury claim arising from a motor vehicle accident. [ 41 ] In Brewer , Mercer, J.A. provided a comprehensive

summary of the relevant governing principles and factors, as follows: 85. To summarize:

(1) Except for the causes of action specified in s. 32(1), the Jury Act directs that the granting of a civil jury is subject to the discretion of the court. That discretion is not fettered by any presumption of law in favour or against a civil jury.

(2) There is an onus upon an applicant under s. 32(3) of the Jury Act to persuade the court that there is sound reason to believe that there is benefit in having the cause or issue determined by the civil jury.

(3) In exercising the discretionary power under the Jury Act the court should consider typological, functional and trial management factors, without designating certain as primary and others as secondary. (4a) The court should first address the typological factor, i.e., that pertaining to the nature of the subject matter and issues, and determine if a civil jury is of benefit in that regard. (4b) Certain cases, or issues, generally favour adjudication by a civil jury, including those where standards of community morality or reasonableness are involved. (4c) Other issues are generally better resolved by judge alone.

Those include the determination and application of the standard of care where there is conflicting expert evidence and the determination of quantum of non-pecuniary general damages.

(5) Consideration of the functional factor focuses on whether the issues at trial are those of fact or of law or whether there are interwoven issues of fact and law.

(6) Trial management concerns include the anticipated length of trial, the likely continuity thereof, and whether there is a clear need for calm and unhurried consideration of the issues without the time pressures inherent in jury deliberations.

(7) All relevant factors should be weighed by the court upon a s. 32(3) application. There is no prima facie entitlement arising if the typological factor favours the granting of a civil jury. [ 42 ] There have been three reported decisions of our Court considering whether to grant a civil jury trial since Brewer . In each of the cases the application for jury trial was denied. They are: Royal Bank v. MacDonald , 2005 NLTD 135 ; Brewer v. Metro General Insurance Corporation Ltd ., 2010 NLTD(G) 170; and Pearce v.

Anderson , 2015 NLTD(G) 33 [ 43 ] The parties have not relied on Metro General or Pearce , and I do not see these two cases as having any relevancy to the present proceeding. I will comment on Royal Bank in the context of the analysis of the factors I am required to consider in exercise of my discretion. [ 44 ] In Brewer , Mercer, J.A. accepted the identification and classification of the factors that Green, C.J. set out in Clarke .

The factors were categorized into three categories: typological, functional, and trial management. [ 45 ] Brewer made it clear the identified factors: 84. …are recommended as a guide for judges in determining whether to exercise the discretionary power conferred by s. 32(3) of the Jury Act . It is not intended to discourage consideration of other yet unidentified factors which may arise.

In each case all the relevant factors which arise should be considered by the court upon an application to obtain a jury trial under s. 32(3) . (emphasis added) [ 46 ] It is with this in mind I must consider the typological, functional, trial management and other relevant factors applicable to this case. 1) Typological [ 47 ] Mercer, J.A. in Brewer explained the typological factor as follows: 69. The first is the typological factor, involving a focus on the nature of specific issues at trial and whether there would be benefit to having a consensus of lay opinion.

A search for benefit in this context is a search for comparative advantage. It must be considered whether the issues at trial favour the selection of one mode of trial over another. It was observed in Clarke that various concerns about a jury trial can be addressed through more detailed instructions and guidelines, as proposed in Whiten. That may be correct but the focus must be not just on whether a jury trial can be conducted to allay concerns, but on whether a jury trial, so conducted, is preferable to trial by judge alone .

I note that Whiten, which arose in Ontario where there is a prima facie entitlement to a civil jury, did not discuss the selection of mode of trial. 70. Issues on which lay opinion may be of benefit include those where standards of community morality are involved, where condemnation of improper conduct is sought, or where dishonesty is alleged. “When in a civil case a man’s honour or integrity is at stake… then trial by jury has no equal” – Ward v. James , p. 571.

Claims for punitive damages, as in Clarke and Whiten would be so classified, provided that such would likely be a dominant feature of the trial . [emphasis added] [ 48 ] Paragraph 70 from the Brewer decision quoted above was discussed in the case of Royal Bank which involved the plaintiff bank’s action on the defendant’s personal guarantee. The defendant pleaded mistake of fact and non est factum , and sought a jury trial on the basis that these defences engaged issues of honesty and credibility which were the proper purview of a jury.

LeBlanc, J. considered paragraph 70, including the quotation referenced by Mercer, J.A. in that paragraph (which he identified as a quote from Lord Denning). As to the scope of the questions of honesty, honour or integrity which signal that a case may be proper for a jury, LeBlanc, J. said the following: 12. I do not believe that either Lord Denning or Mercer, J.A., meant that in all cases involving the honesty, honour or integrity of a party a civil jury trial is to be preferred to a trial before a judge alone.

If it were otherwise, the door would be opened wide for the granting of civil jury trials, which approach appears not to be favoured by the law and statutory framework presently existing in this Province or by the reasoning of the Court of Appeal in the Brewer case.

[ 49 ] In going on to dismiss the defendant’s application for a jury trial, LeBlanc, J. said further: 13. While no doubt the issue in the present case will require certain findings on credibility and will involve consideration of honesty and integrity of a party, the ultimate issue is really whether the defendant will be held responsible under the personal guarantee. This does not raise a question of community standards. It is my opinion that the reference to condemnation of improper conduct referred to by Mercer, J.A, in Brewer is made in a different context.

While necessarily involving a determination of credibility of the persons involved and dealing with the honesty of a party, I see no benefit to having a consensus of lay opinion from the community to determine the result of this case. A judge having experience in hearing and judging issues of credibility would not be in a worse position than a jury in such a case.

In fact, due to his/her experience, there may be greater benefit by having a judge alone trial. [ 50 ] I agree with counsel for the Defendants that in cases which engage questions as to the honesty, honour or integrity of a party, these questions will not in and of themselves favour jury trials; there must be more. In paragraph 70 of Brewer quoted above, Mercer, J.A. suggests that for such issues to warrant an order for a civil jury trial, they must be “a dominant feature of the trial”. The case of Whiten v.

Pilot Insurance Co. , 2002 SCC 18 cited by Mercer, J.A. involved a jury’s award of one million dollars in punitive damages against the defendant insurer for its bad faith administration of the plaintiff’s fire loss claim. Similarly, a claim for punitive damages alleged to flow from an insurer’s bad faith, claims administration was viewed by Green, C.J. to be “a major consideration” and a predominant feature which warranted a jury trial in the case of Clarke .

These are cases engaging first party claims for breach of ‘peace of mind’ standard insurance contracts. [ 51 ] The position of the Defendants is that the tort claims in this case, which are predicated on an alleged breach of a grocery products supply agreement, “are far removed” from the nature of the claims advanced in Whiten and Clarke .

On the other hand, counsel for the Plaintiffs is asserting the nature of the case and specific issues would indeed benefit from “having a cross-section of lay opinion”. [ 52 ] Butler, J. in the Bifurcation Decision in discussing the issues the Court will have to address at the trial of this case concisely stated: 16. Reduced to its simplest of terms … the Court will be asked to address: (

a) whether a tort was committed, (

b) if so and by whom and what was its effect on the Plaintiffs and (

c) how should damages (if any) be assessed. 17. … I accept that the Court will have to address each of the following: (

a) the relationship between the Plaintiffs and the Defendants; (

b) what representations (if any) were made to the Plaintiffs by the Defendants; (

c) if any of the representations made were made negligently or fraudulently; (

d) what reliance (if any) was made by the Plaintiffs on the representations made; (

e) whether the Sixth Defendant owed the Plaintiffs a duty of care, and if so, whether it was breached by misrepresentations made; (

f) when the Plaintiffs knew or ought to have known of their cause of action against the Defendants and if their actions are statute barred; and (

g) whether the Plaintiffs have a right to maintain a derivative action against the Defendants in their capacity as shareholders of the corporations which owned, operated and sold the two supermarkets. [ 53 ] On the typological factor, I am persuaded that given the nature of the specific issues and the uniqueness of the case there would be a benefit to having a consensus of lay opinion. I take considerable guidance from a case that was decided by a civil jury trial in this jurisdiction and went to the Supreme Court of Canada: Bella v.

Young , 2006 SCC 3 . [ 54 ] Young was a claim in negligence resulting from a report made to Child Protection Services (“CPS”) by the Director of the School of Social Work at Memorial University (“Dr. Rowe”). The jury concluded that the University had acted negligently and awarded damages to the Plaintiff, a student, in the amount of $839,400, including $430,000 in non-pecuniary damages. [ 55 ] The Court of Appeal overturned the jury verdict.

The Supreme Court of Canada allowed the appeal and restored trial judgment. [ 56 ] I rely on Young to demonstrate civil juries can properly determine and assess damages in a tort action based on negligence. I am most reluctant to dismiss the capability of a civil jury and the benefit a consensus of lay opinion would bring to bear in advancing the law

of tort, even such as here when dealing with a novel commercial related tort claim. [57] The Court noted in Brewer: 80. Though it is a pre-requisite to the exercise of the judicial discretion to grant a civil jury that the nature of the case, and the issuesinvolved, favour that mode of trial, that conclusion on the typological factor should not be regarded as conferring a prima facieentitlement to a civil jury, as was suggested in Clarke. It must be weighed with the functional and trial management factors.

It isinappropriate to classify certain factors as primary and others as secondary. [58] While the Plaintiffs have persuaded me the nature of this case could benefit from a cross-section of lay opinion, there are otherfactors militating against having this matter heard by a jury at this time. 2) Functional [59] Mercer, J.A. discussed the functional factor in Brewer, as follows: 81. The functional factor is concerned with how the division of functions between a judge and jury would affect the trial given theissues involved. As stated in Wells v.

Sanitary Products Limited, supra: …A civil jury is inappropriate where the issues of fact are clearly interwoven with the issues of law or where the primary issues areissues of law… Causation issues in personal injury actions may involve interwoven issues of fact and law. Where there are issues of mixed fact and law,which are those involving the application of a legal standard to a set of facts, meaningful appellate review requires a record whichindicates the basis of the decision.

Matters of mixed fact and law lie along a spectrum and it must be determined whether an allegederror arises from application of an incorrect standard, or other error of law, or whether it involves the

interpretation of the evidence as awhole. Where the legal principle is not extricable the deference normally accorded to the finder of fact is no longer applicable. SeeHousen v Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. [60] Further to the extract cited in the quote above, the decision in Sanitary Products Ltd. v. Wells (1995), (NLCA), 135 Nfld. & P.E.I.R. 318, 420 A.P.R. 318, (Nfld. S.C. (C.A.)) stated: 9. … The pleadings in this case disclose that substantial legal questions are involved together with issues where legal questions andquestions of fact are interwoven.

It is apparent that complex questions of law and mixed law and fact will arise in the area of contract,wrongful dismissal and tort (negligence) law. [61] The Court of Appeal overturned the trial judge’s order for a jury trial. [62] In Atlantic Mack Sales (NB-NS) Inc. v. Citicapital Commercial Corp./Citicapital Corp. Commerciale, 2004 NBQB 272,Russell, J. of the New Brunswick Court of Queen’s Bench denied a jury trial application, citing Wells, in a case which he characterized tobe a “complex, involving serious issues of corporate and commercial law”. [63] This too is a complex case.

Butler, J. recognized this in the Bifurcation Decision, wherein she stated the following: 31. However characterized, the issues to be tried in this case are complex. The limitations issue was considered inappropriate toaddress on a

Summary trial; the legitimacy of the derivative action was considered unusual enough to warrant being reserved to bedetermined by the trial judge. These two Applications indicate the complex issues in this litigation and their results support the need forthe trial judge to have the whole of the evidence before him/her. [64] Butler, J. also identified causation to be an important issue. The Plaintiffs have the burden of causally connecting the allegedunprofitability of the Plaintiffs’ Corporations to the misrepresentations of the Defendants. Butler, J. described the causation issue asfollows: 34.

The Plaintiffs will have to testify respecting the representations made to them prior to becoming affiliated with Sobeys. They willhave to establish either the negligent nature or falsehood of the representations made and the effect that these had on the Plaintiffs’corporations. Since they assert that their corporations were unprofitable, this will require production of the Plaintiffs’ corporations’ ownbusiness records and evidence from competitors. 35.

Defendants’ counsel suggests that causation requires evidence of the experts because the Defendants assert that the Plaintiffs’corporations were operating unprofitably due to their management and not due to any misrepresentations by Sobeys. Counsel believesthat the experts are qualified to address this. [emphasis added] [65] Butler, J. was unable to conclude that the issues of liability and damages in this case could be separated; rather, she concluded

that on the limited evidentiary record before her, the matters of liability and damages appeared to be co-mingled. [66] Despite the complexity and legal nuances undoubtedly involved, I am satisfied, with appropriate time and consideration by thetrial judge in consultation with counsel for the parties, proper directions and instructions could be given to the jury in respect to thespecific issues identified as (

a) through (

e) in paragraph 52 above, including the factual findings on the causation issue. [67] I note in Clarke the issue of whether the limitation period in the long term disability policy barred the plaintiff’s claim did notpreclude the ordering of a jury trial. In the Limitations Decision, McGrath, J. was unable to decide on the record before her whether ornot the Plaintiffs’ claims were time-barred.

Having all the evidence before the Court in a trial, I am satisfied the factual elements of whatand when the Plaintiffs knew or ought to have known on the material elements of each cause of action could be findings made by a jury,then it would be the responsibility of the trial judge to apply those factual findings to the applicable limitation period and the law ondiscoverability, and make a legal ruling whether all or any of the causes of the action were out of time.

I conclude, however, in theanalysis below under the trial management factor that the limitation period issue would be more conveniently left to the trial judge in allrespects. [68] The fact that causation is in issue, and whether the Plaintiffs can establish any loss, is not unlike any other claim based innegligence. The issue of causation was strongly contested in Young, and the Supreme Court of Canada held there was sufficient evidenceto permit the jury to find a causal connection between the University’s breach of duty and the damages suffered by the appellant (atparagraph 59).

Causation in and of itself does not take this case out of the ambit for jury consideration. The trial management aroundthat issue though remains to be considered. [69] The derivative action issue is clearly one mixed with fact and law that would require considerable legal analysis, and have to beleft to the trial judge alone. In the Derivative Decision, Whalen, C.J. acknowledged (at paragraph 37) “that courts are reluctant to piercethe corporate veil”. He stated: 42. The Plaintiffs, of course, run into the challenge, noted above, that courts are reluctant to pierce the corporate veil.

Although theyhave not pointed to one of the specific, recognized exceptions to the general proposition that corporations and shareholders are separateentities, there does not appear to be consistent principle underlying when a Court may do so. … Courts appear to maintain a discretion topierce the corporate veil in the interests of preventing a patent injustice. [70] Whalen, C.J. found: 43. … the Plaintiffs have a possible chance of success in their action on the basis that a Judge of this Court could find that refusing topermit the Plaintiffs' claim for the impugned damages would lead to a result "too flagrantly opposed to justice". [emphasis added] [71] I am also mindful eminent jurist Orsborn, J. initially struck this action.

Equally eminent jurists in Wells, C.J. (as he then was)joined by Roberts, J. and Rowe, J. (now of the Supreme Court of Canada) reinstated the action. In the Reinstatement Decision, the Courtstated: 23. …Whether or not there is also liability to the shareholders can, therefore, only be determined after consideration of the evidenceas to the relationship between the shareholders and the party against whom the claim is made, and consideration of the applicable law.” [72] Further, the Court concluded: 25.

They [the Plaintiffs] are not to be precluded from having the opportunity to establish such a relationship, and presenting theirargument as to entitlement at law, by the court anticipating that a Foss v. Harbottle defence will be presented and will be successful.” [emphasis added] [73] To say this entire proceeding is not fraught with legal complexity, unprecedented law and mixed fact and law would be denyingthe obvious.

Could the case nevertheless be managed in such a way that a jury trial would be preferable to judge alone? 3) Trial Management [74] I cannot envisage the management of this trial with a jury, at this late stage in the procedural history, as a practical and viableoption. It is on this basis and other relevant factors to be considered that this application fails. [75] The Plaintiffs indicate that they will call seven to ten witnesses of fact with 150 documents to be put in evidence. This is aconsiderable documentary record. Both parties intend to submit expert reports on the economic loss, if any.

While it is well within thepurview of a civil jury to assess expert reports on damages (as the jury had to do based on the Plaintiff’s expert report in Young), the verynature of what both counsel have indicated will be conflicting expert reports will require detailed review and thoughtful analysis. Counsel for the Plaintiffs propose that this case will take three weeks. Meanwhile, counsel for the Defendants say it would occupy atleast five weeks, or 25 days, of trial time (an estimate achieved in Case Management when there was no consideration of a jury trial).

Itend to agree with counsel for the Defendant that five weeks must be viewed to be conservative, if the case is to be heard by a jury. Inthe case of Earle v. Christian Brothers of Ireland in Canada (1994), (NL SC), 124 Nfld. & P.E.I.R. 254, 36 C.P.C.(3d) 341 (Nfld. S.C. (T.D.)) Mercer, J. declined to order a jury trial, in part because the plaintiffs proposed to present 30 documents in 30days of trial (at paragraph 12). [76] Although there is no medical evidence before me on Mr.

Walsh’s health at this time, I do have concern that based on pastexperience in these proceedings, of the potential need for in trial adjournments to accommodate Mr. Walsh’s health. In the LimitationsDecision, McGrath, J. specifically noted the health challenges which had been experienced by the Plaintiff David Walsh in connectionwith his examinations for discovery. She noted that “he was hospitalized for these issues after the 2005 discovery examination”.

Subsequently, Mr. Walsh’s health challenges have caused proceedings in this case to be adjourned on at least two occasions. There therefore exists a concern for adjournments which weighs against ordering a jury trial. [ 77 ] I have previously raised, in the functional factor analysis, concerns over mixed fact and law issues. It is those very concerns that impact on trial management. As counsel for the Plaintiffs submitted,

Section 36 of the Act allows the trial judge to remove “an issue of fact” from the jury and for the trial judge to decide the issue. That in fact occurred in Young when the trial judge directed as a matter of law the words in Dr. Rowe’s letter to CPS were not capable of being defamatory, and removed defamation from the jury’s consideration. Whether the Plaintiffs have a right to maintain a derivative action against the Defendants in their capacity as shareholders is such issue of mixed fact and law that the jury could be directed not to consider.

My concern is how much thought and deliberation would be required to make such a legal determination on that issue, and the time required for considered instructions to the jury on the other issues identified for the jury to make the necessary factual findings and assessment of the damages. [ 78 ]

Section 31.1 (2) of the Act allows five of the six jurors in a civil action to return a verdict, if a unanimous verdict cannot be reached after three hours of deliberations. That is not to say a jury could not take longer than three hours to deliberate. Nevertheless, this has been regarded as a factor militating against a jury trial in complex cases requiring meaningful deliberation and decision.

This trial management concern has been described as the need for “unhurried and thoughtful consideration” of the issues without the time pressures imposed by “the need for a jury decision shortly after testimony finishes”. In Earle at paragraph 13 , Mercer, J. referred to this as a factor which led him to dismiss the plaintiff’s jury trial application. [ 79 ] The Defendants also point to one final trial management factor that favors a trial by judge alone. Counsel for the Defendants raise potential admissibility of evidence issues. The Sixth Defendant, Mr.

Green is now deceased. [I have indicated to counsel the pleadings will have to be amended to reflect the proper legal status of the Sixth Defendant.] As counsel for the Plaintiffs noted, Green’s evidence is available by way of his discovery evidence. Rule 30.13(1)(

c) stipulates: 30.13.

(1) At a trial or upon a hearing of an application, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at an examination for discovery, or who received due notice thereof, for any of the following purposes, … (

c) where the deponent is dead , … for any purpose by any party.” [Emphasis added] [ 80 ] There allegedly have been audio recordings made by the Plaintiff, Mr. Walsh of discussions he had with Green unbeknownst to him. Such surreptitious recordings and any transcripts of those audiotapes will involve an evidentiary ruling on admissibility. My concern is such rulings on evidentiary admissibility issues could lead to an interlocutory appeal, as occurred on an evidentiary issue in Cabana v. Newfoundland and Labrador , 2018 NLCA 52 .

This would have the effect of derailing the trial and dismissal of the jury. 4) Other Relevant Factors Delay [ 81 ] The delay in bringing this Application is a paramount consideration that goes to the merits of granting the relief sought and ultimately costs. I must point out I do not lay the blame of this on present counsel for the Plaintiffs, who were only retained in October, 2018. In fact, it is of benefit not just to the Plaintiffs, but to the Defendants and the Court that the Plaintiffs do not have to proceed to Court as self-represented litigants with this rather complex case, especially in light of Mr.

Walsh’s health concerns. It is also laudable that present counsel bring a fresh set of eyes and are endeavouring to take every step they deem appropriate to best present and advocate for their clients’ interests, and in so doing gain and maintain the confidence of their clients. I do not fault them for the willingness to bring this application.

At the same time, I must do fairness to the Defendants and what is in the best interest of justice here. [ 82 ] Section 32(3) of the Act requires that a request for a jury trial must be made either “in a certificate of readiness… or in manner and at those times as the court may allow”. The

section may be fairly interpreted to require that a timely request must be made by a party requesting a jury trial. [ 83 ] The Plaintiffs confirmed their readiness for trial in Case Management, and the case was entered on the Pre-Trial List, in September, 2016. No request for a jury trial was made until the application herein was filed on November 27, 2018. This application has been brought much too late. [ 84 ] In the case of Tshakapesh v.

Oblates of Mary Immaculate , 2005 NLTD 14 , the plaintiffs filed their application for a jury trial on December 20, 2004 in relation to a trial which was scheduled to commence on March 1, 2005. Barry, J. stated as follows: 41. If it were necessary, I believe the Defendants’ delay in requesting civil juries in these matters could be taken as a factor weighing heavily against their request.

In the present circumstances, however, my decision is not based on this delay, since I have determined that the other trial management factors, when combined with the functional factors noted, greatly outweigh any benefit from having the input of a civil jury and strongly indicate that justice to the litigants in the present case will be better served by trials without a jury. [ 85 ] Furthermore, in terms of delay, this action is still not ready for trial, as alluded to in paras 32 – 33 above.

The Court is unable to fix a date for the trial without the assurance of counsel that all pre-trial matters have been completed. Ordering a jury trial without certification that the parties are ready to proceed, as is contemplated by Section 32(3) , is not in keeping with the proper administration of justice.

Available Court Resources [ 86 ] This case has taken considerable time and resources of the Court. A civil jury trial will engage the Office of the High Sheriff in the jury administration, and the Court in making a courtroom with the capability of handling the sitting of a jury and a jury room available for a considerable period of time. While there ought to be no impediment to citizens seeking access to justice in the mode of trial they deem best suiting the case they are advancing; there comes a point in light of the direction given by the Supreme Court of Canada decision in R. v.

Jordan , 2016 SCC 27 on the time limits for the hearing of criminal trials, and the inherent limitations placed on the availability of courtrooms and judicial resources, where, as here, a civil jury trial is no longer preferable to trial by judge alone.

Section 37 of the Act [ 87 ]

Section 37 has not been given any judicial consideration by our Court. Counsel, upon my direction, confirmed there are no authorities on this provision. As noted previously,

Section 36 permits a judge “ in chambers or a judge presiding at a trial” to take an issue of fact or the assessment of damages from the jury. Conversely,

Section 37 states: Where a matter is heard by a judge without a jury , the judge may order a cause, matter, or issue to be tried by judge with a jury . [emphasis added] [ 88 ] I raised with counsel that if the trial judge were to find for the Plaintiffs,

Section 37 contemplates the scenario whereby the Exemplary Damages (for the allegations of fraudulent concealment and abuse of trust) could be reserved for a jury assessment. In such a scenario, the Exemplary Damages would not only be the “dominant feature”, they would be the only legal remedy remaining to be determined.

There are challenges with this approach in regard to possibly having to rehear evidence, recall witnesses, and otherwise duplicate certain aspects of previous proceedings. [ 89 ] I do note Binnie, J.’s comment in Whiten : “Where a trial judge is concerned that the claim for punitive damages may affect the fairness of the liability trial, bifurcated proceedings may be appropriate.”

Section 37 then may be a more appropriate mechanism where the trial by judge alone involves a contractual claim, and all that remains to be resolved is the punitive damages in bifurcated proceedings with a jury. Although the residual availability of

Section 37 remains with the trial judge, it is no help to the Plaintiffs on this application. [ 90 ] In the end, I have to apply the Brewer test: 66. … If, upon consideration of the relevant factors, the court concludes that the applicant has not discharged that onus of persuasion then the default position prevails and trial would be by judge alone. CONCLUSION [ 91 ] The applicant Plaintiffs have failed to establish the onus upon them to persuade the court, upon consideration of all relevant factors, that a civil jury trial should be granted.

Accordingly, the default position prevails and the trial will be by judge alone. [ 92 ] Eighteen years is a long time in anyone’s life. It is especially so for the Plaintiffs in their advancing years. We need a clear path forward to allow the parties to get a resolution of this protracted proceeding. The parties are to attend at Case Management Meeting on July 31, 2019 with this goal in mind. COSTS [ 93 ] Under Rule 55, costs are always in the discretion of the Court.

In the normal course as per Rule 55.04(2), the Defendants would be entitled to have their costs of this application taxed on Column 3, unless otherwise ordered. [ 94 ] I agree with Ms. Reynolds, who argued this application as counsel for the Plaintiffs, litigants should not be dissuaded from seeking a jury trial within the reasonable contemplation and scope of Brewer and other guiding judicial authorities. If this application had been made much earlier in the proceedings, I would have ordered costs in the cause.

Had present counsel for the Plaintiffs been the ones to indicate trial readiness back in September 2016, with the lateness of this application I would have awarded costs on Column 5 to be taxed and payable forthwith. Since present counsel themselves are late coming to this, and for the reasons previously stated in paragraph 81 above, I have concluded it was not inappropriate to make this attempt to seek a civil jury trial. [ 95 ] Nevertheless, the Defendants have succeeded in having the application dismissed and there is no reason to depart from the usual course and award them their costs.

However, I want the complete focus of the parties on a path to resolution and not be concerned with taxing and recovery of interlocutory cost awards. [ 96 ] I am therefore ordering the Plaintiffs pay the Defendants costs of this application on a Column 3 basis for one counsel to be taxed at the conclusion of all proceedings in this matter, and as per Rule 55.02(1)(

c) that this cost award be set off against any cost awards in favour of the Plaintiffs. [ 97 ] I thank all counsel for their thorough written briefs and insightful oral submissions. disposition [ 98 ] It is ordered that: 1) The application of the Plaintiffs for a civil jury trial is dismissed. 2) The Defendants shall have their costs on Column 3 for one counsel to be taxed at the conclusion of all matters in this proceeding, and the award herein set off against any cost orders in favour of the Plaintiffs.

3) Counsel for the Defendants as the successful party shall prepare and file the formal order within the next 10 days for the Court’s endorsement. 4) The next Case Management Meeting to discuss status and date(

s) for the two pending applications is on July 31, 2019 at 2:30p.m. _____________________________ Glen L. C. Noel Justice