Sep 25, 2019

When Can You Get A Civil Jury In An MVA Trial?

Martin v Chrysler Canada Inc., 2019 ABCA 347 (CanLII)

Keywords: MVA; civil jury; discretionary order; Jury Act, RSA 2000, c J-3


In 2007, the Appellant is involved in a motor vehicle collision with family members who experienced only minor injuries. He commences two actions: one as against the driver (which is resolved), and another against the Respondents for,

  • negligent design and manufacture,
  • failure to warn, and
  • negligent misrepresentation

arising out of injuries, including a knee replacement, to the Appellant’s lower leg allegedly caused when an airbag deployed behind an unpadded metal plate and hard plastic cover ripping through his jeans and hyper-extending his left leg which was positioned above his right leg on the brake.

In 2017, pursuant to s. 17 of Jury Act, RSA 2000, c J-3, the Appellant applies to have the trial heard by a civil jury. The Respondents argue the action is “too inconvenient for a jury” as a consequence of voluminous evidence, and numerous complex issues. There are a number of orders against the Respondents for delayed disclosure.

The Case Management Judge delays the decision with respect to the appropriateness of a civil jury; gives the parties time to manage the expert evidence. Following a further case management meeting, the Appellant is directed to

1. reset the application for a jury trial; and

2. bring a procedural order to streamline the expert evidence; and

3. amend the Statement of Claim.

No order is filed to confirm these directions. The Appellant responds by filing a new application for a jury trial, but also applies for a procedural order “directing conflicting expert witnesses to confer with one another within 120 days to narrow the issues and identify the points on which their views differ and provide a signed written statement for use at trial identifying the issues or facts on which they agree or disagree”; i.e. ‘hot-tubbing’. (See para. 5).

The Case Management Judge determines there is insufficient simplification of the issues and expert reports to put the case before a civil jury. Both applications are denied. The Appellant appeals; the Court of Appeal dismisses the appeal.


The “Novel” Procedural Order

With respect to the Appellant’s “novel” requested procedural order, the Case Management Judge found that there was no “concrete proposal for agreement by the experts”. (See paras. 6, 9). The Appellant had asked for an order requiring conflicting experts to sit down and come to an understanding about some of the facts and issues. The Case Management Judge determined this was improper, in part because it involved “…using rules that ‘this court is not accustomed to’”. (See para. 9).

In any event, for the Court of Appeal, directions relating to the management of expert evidence at trial are a matter of discretion and so entitled to considerable deference “…because of the case management judge’s intimate knowledge of the litigation”. Citing Piikani Nation v. Kostic, 2018 ABCA 234, the Court declined to find the Case Management Judge’s assessment of the Appellant’s procedural order was unreasonable. (See para. 11).

Significantly, with respect to the absence of a filed order confirming the Case Management Judge’s own directions, the Court of Appeal found the Parties are ultimately responsible for setting out such directions:

Parties are responsible for preparing orders arising out of applications and case management meetings, unless other arrangements are made. Where they neglect to do so, they can expect that a case management judge will proceed to keep the matter moving forward and may issue directions arising out of previous case management meetings based upon the materials before him or her. We do not find that the case management judge made any reviewable error in proceeding in the fashion he did. (See para. 14).

When is a Case Ready for a Civil Jury?

The Appellant enjoys a prima facie right to a jury trial, subject to the court’s discretion to deny that right under s. 17(2) of the Jury Act. The Court of Appeal set out two questions which must be answered before proceeding to trial:

1. Whether there “might” be a prolonged examination of documents or accounts, or a scientific or long investigation?

2. Whether such an examination or investigation “cannot conveniently be made by a jury”? (See para. 16).

The Appellant’s submission on this test included an argument that parties should not be deprived of their right to a civil jury simply because their case involves (and requires) a number of expert witnesses. Rather, the only question should be whether the content of the evidence “…can be explained to a lay person”. (See para. 17).

Might this raise a significant question of public importance? Canadian civil litigants find themselves in a dubious position – it seems there is either too much evidence, or not enough (take for example, the circumstance faced by a self-represented litigant). It remains to be seen whether this question will be pursued further – i.e. in the form of an application for leave to appeal to the Supreme Court of Canada.

For its part, the Court of Appeal declined to address these arguments, relying instead on paras. 5-8 in Balogun v Pandher, 2010 ABCA 40 (CanLII) and noting “…the decision of whether a trial involves matters that can conveniently be heard by a jury is an exercise of discretion”. (See paras. 19-20).

Counsel for the Appellant: R. Travis Bissett (Stringam LLP, Lethbridge, Raymond, Taber)

Counsel for the Respondents: Lorena Harris (Dentons Canada LLP, Edmonton)