Court of Appeal upholds defence jury notice in case with 28 medical witnesses

In reasons for judgment released this week, the Court of Appeal in Donaldson v. Dorworth, 2017 BCCA 236, dismissed the plaintiff's appeal of the trial judge's decision to uphold the defence jury notice.  The plaintiff argued that the case was too complex for the jury given 16 medical witnesses were expected to testify on factual matters, and another 12 on matters requiring opinion evidence.  In dismissing the plaintiff's appeal the court said:

[12]        I agree that this is a close case, but in my view the chambers judge made a decision that was open to him on the record before him. I can see no reviewable error and would not give effect to this ground of appeal.

[13]        On the second issue, the case management judge concluded that the issues would require a prolonged examination of documents and a scientific examination within the meaning of the sub-rule, but rejected the argument that the examination of these documents and expert reports could not be made conveniently with a jury.

[14]        On this appeal, the appellant has not identified an error of principle in the decision of the case management judge. Her main argument is that the judge gave no weight, or no sufficient weight, to factors relevant to the application to strike. These factors may be summarized as the length of trial, the number of expert witnesses, the number of medical fact witnesses, the liability dispute and the complexity of the expert evidence, particularly in relation to the appellant’s medical condition.


[21]        In my view, the case management judge in the case at bar considered the factors that were relevant to the disposition of this application and did not take into account any irrelevant factors. He did not make an error of principle but rather came to a decision that was open to him. I can see no reviewable error in his judgment. I would dismiss this appeal.

The full decision can be found here:

Court Strikes Defence Jury Notice on Basis that Wage Loss Claim Too "Complex"

In the recent decision of van Driesum v. Young, 2016 BCSC 2279, the Court granted the plaintiff’s application to strike the defence jury notice on the basis that the wage loss claim was too “complex” for the jury.  The court said:

[1]             The Plaintiff applies to strike the jury.  The trial is scheduled to begin November 21 and to occupy 18 court days.  These relatively brief reasons will perhaps not do full justice to the able submissions from both sides I heard on Monday, but the imminence of the trial calls for a prompt decision.

[6]             The overall question is trial fairness, weighing the Defendant's presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[9]             In the result, determining the Plaintiff's pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff's earnings, lost earnings, and diminished earning capacity post-accident.

The full text of the decision can be found here: