Successful Arguments that a Trial Should be Heard by Judge Alone

In Bucholz v. Bevan, 2017 BCSC 2377, the Plaintiff, including a third party, apply to Court to have the trial proceed with a Judge alone.

The relevant Rule is 12-6(5) Court May Refuse Jury Trial:

(5)        Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a)        within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)         the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

(ii)        the issues are of an intricate or complex character, or

(iii)       the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action,

Factors to Consider

There is no dispute that the Bevan defendants are prima facie entitled to have this action tried by a jury and that the onus is on the applicants to satisfy the court that it should exercise its discretion in favour of proceeding by judge alone. In Rados v. Pannu, 2015 BCSC 453 (aff’d on appeal 2015 BCCA 459), at para. 38 the Court listed a number of factors that may be taken into account in determining whether that onus has been met:

  • the anticipated length of the trial;
  • the number of experts to be called;
  • the volume of expert evidence;
  • the nature and character of the expert evidence;
  • the extent to which there are conflicts in the expert evidence;
  • the nature of the inquiries the trier of fact will be asked to make to resolve those conflicts, including by having regard to scientific literature;
  • the extent to which the case necessarily involves reference to unfamiliar medical terminology;
  • the number of issues to be resolved by the jury;
  • the character of those issues; and
  • complexities that may arise as a consequence of the interaction between the issues.

This Plaintiff had been involved in 3 motor vehicle collisions, the first of which (in 2007) had been resolved.

The injuries being claimed are:

  1. chronic pain;
  2. soft-tissue injuries to left shoulder, neck, back and legs;
  3. head injury;
  4. depression and anxiety;
  5. insomnia, bowel and bladder difficulties;
  6. Migraines; and
  7. a secondary addiction to prescription pain medications.

Liability is denied, although not a true denial, and causation and quantum will be in dispute.  45 days has been scheduled for trial.

Courts’ Analysis

[10]        The number of issues is significant, arising from two different accidents and the plaintiff’s treatment by Dr. Class. The Bevan defendants submit that liability with respect to Dr. Meszaros and the Bevan defendants will not be contested, and that “the jury’s task will be complicated only to the extent of determining the applicable standard of care for Dr. Class and whether she breached that standard of care and with respect to the limitation defence.” However, these liability issues are themselves difficult and the interaction of liability, causation and apportionment, as more fully set out in the plaintiff’s written submissions, is genuinely complex and difficult:  Sadowick v. Doobay, [1982] B.C.J. No. 447 (S.C.), at para. 7.

[11]         Addressing the other factors listed in Rados, the trial is booked for 45 days. While in Froese v. Wilson, 2017 BCSC 2042 at para. 16, Smith J. noted that the trend in the jurisprudence has been towards acceptance of the capacity of a jury to absorb and understand conflicting medical evidence in personal injury cases, the trial in Froese was scheduled for 20 days, less than half the length of the trial here. With a 45-day trial, the concerns expressed in Wipfli v. Britten (1981), 32 B.C.L.R. 343 at 348-349 (S.C.) – as to the jury’s ability to retain its understanding of the evidence presented through a long trial – remain pertinent.

[12]         Three of the factors listed in Rados relate to expert evidence. At the time of the application, there were 14 expert witnesses and 21 expert reports. More may be served at the 84- and 42-day deadlines. This introduces significant complexity. While some of the reports come from experts in “fields that are commonly at issue in personal injury cases” (Froese, para. 17), others address the issue of standard of care of a general practitioner which raises more difficulty. Furthermore, given the period over which Dr. Class treated Mr. Bucholz, the jury will have to consider opinions addressing an evolving standard of care in the controversial area of opioid treatment. More generally, with respect to causation, the reports conflict as to the proximate cause of Mr. Bucholz’s condition, the possible contributors being the 2007 accident, the 2009 accident and Mr. Bucholz’s opioid use.


[13]         All of this supports the applicants’ contention that the 45-day trial involves a scientific investigation that cannot conveniently be made by a jury, and that the issues are complex such that they are not suitable for a trial with a jury. Accordingly, the applications of Dr. Class and Mr. Bucholz are allowed. They are entitled to their costs in the cause.

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