Decision reinforces the substantive right to have a trial heard by a jury even in a complex case
In May 2016 Kelly McCullagh of Carfra Lawton LLP successfully opposed the plaintiff’s application to strike a jury notice, in Lapp v. Suffern. This decision reinforces that the substantive right to have a trial heard by a jury will be upheld even in a complex case with multiple issues and experts.
The Lapp trial was scheduled for 20 days and was to include the evidence of 20 experts and 32 expert reports. The experts included physicians, psychologists, a physiotherapist, engineers and accountants. In addition, there were expected to be 20 or more lay witnesses. The plaintiff alleged that she had suffered a mild traumatic brain injury in a motor vehicle accident, as well as a vestibular injury and soft tissue injuries. She operated her architect business through a corporation and alleged business losses as well as diminishment of future earning capacity. Liability for the accident was in issue and there was engineering evidence about the impact forces and the potential for concussion given the forces involved.
The defence had filed a jury notice when the trial was set, in November 2014, and paid the jury deposit as required under the rules — 45 days before trial. Trial was set to begin May 30, 2016. Contrary to the rules, the plaintiff did not apply to strike out the jury notice within 7 days of being served with it, in November 2014. The plaintiff also gave no indication of an intention to apply to strike out the jury notice until after the trial management conference — which was held a month before the scheduled trial date. The plaintiff’s application was heard over 3 days and was vigorously opposed by the defence. On May 26, 2016, Mr. Justice Johnston dismissed the plaintiff’s application, with the result that the trial would proceed before a judge and jury.
In dismissing the plaintiff’s application, Mr. Justice Johnston accepted that there would be a scientific investigation required and the case was at least somewhat intricate and complex, but found it would not be inconvenient within the meaning of the case law for the case to be heard by a jury and there was no apprehension it would be unjust to have the case heard by a jury.
Written reasons for judgment are not yet available, but are expected soon.