The Alberta Court of Appeal recently refused to allow the victim of a car accident to proceed to trial with a jury despite the victim’s request to do so, finding the issues and evidence too complex for a jury.

What Happened?

The appellant commenced two actions arising out of a 2007 motor vehicle collision. One action was against the driver of the other vehicle, which has been resolved.

The other action was against a car manufacturer for negligent design and manufacture, failure to warn, and negligent misrepresentation, all arising out of injuries to the appellant’s lower leg allegedly caused when an airbag deployed.

In 2017, the appellant applied to have the trial heard by a civil jury, pursuant to s. 17 of the Alberta Jury Act. At the hearing of that application, in December 2017, the car manufacturer argued that the action was too inconvenient for a jury due to voluminous documentary and expert evidence, and numerous complex issues.

The case management judge was of the view that the Rules of Court provide options to streamline complex litigation. He delayed his decision on the appropriateness of a civil jury trial to give the parties time to take steps under Part 5 of the Rules of Court to manage the expert evidence.

In July 2018, the appellant filed a new application for a civil jury trial. He also applied 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”, with a view to simplifying the expert testimony for the jury (the “Procedural Order”).

Both those applications were denied. The case management judge found that there had been no real simplification of issues or expert reports, no real reduction in the number of experts, and no concrete proposal for agreement by the experts. He was not satisfied that the proposed Procedural Order would simplify the action in the future, and declined to make it.

Parties’ Positions

The appellant appealed, arguing that a party should not be deprived of the right to trial by jury except for “cogent reasons”, and that the number of expert witnesses should not act as a bar to a jury trial. Rather, the question should be whether the content of the expert evidence can be explained to a lay person.

The car manufacturer argued that, on the facts of this case, a jury trial was too inconvenient. The parties estimated that 20 expert witnesses would testify, in addition to lay witnesses. The car manufacturer also itemized a list of 27 issues that would need to be resolved and a list of seven issues about which the experts were in substantial disagreement.

The Law

Subsection 17(2) of the Jury Act states:

Right to jury in civil proceeding 

17(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.

Court of Appeal Decision

The court noted that the case management judge had acknowledged that the appellant has a prima facie right to a jury trial, and the only issue was whether the court ought to exercise its discretion to deny the application under s. 17(2) of the Jury Act. In exercising that discretion, the court must apply a two-part test:

  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”?

Based on previous case law, the court explained that the decision of whether a trial involves matters that can conveniently be heard by a jury is an exercise of discretion.

It found that the case management judge had assessed the relevant criteria and made clear that, in his view, the case would have to be significantly simplified for a jury trial to be appropriate. He was not satisfied that the steps taken had resulted in the necessary simplification.

As a result, the court found that there was no basis on which to intervene in the case management judge’s decision under s 17 of the Jury Act and dismissed the appeal.

[Note: In Ontario, the rules governing jury trials in civil cases are found in s. 108 of the Courts of Justice Act]

Get Advice

In the event of serious injury following a car crash, retaining a lawyer can help you to get the long-term support you need from your insurance company and the compensation that ought to be paid by the parties at fault for your accident.

At Petker Campbell Postnikoff, we investigate your claims arising from a car accident, and we seek the compensation you need to recover from your injuries. In the event you have sustained a catastrophic physical impairment or any permanent, serious impairment of any important physical, psychological or mental function, we will help obtain your insurance benefits and fair compensation from those at fault for the motor vehicle accident. We are experienced in handling cases for the most severely injured. We understand the challenges and worries faced on a day-to-day basis by those dealing with newfound hardships.

Legal advice can help you make sure you have what you need following a car accident. To speak with the Waterloo car accidents lawyers at our firm, call us at 519-886-1204 or contact us online. We offer prospective accident clients a free initial consultation.