Callaghan v. Canadian National Railway Company

2025 BCSC 569 Callaghan v. Canadian National Railway Company

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Callaghan v. Canadian National Railway Company, 2025 BCSC 569 Date: 20250327 Docket: S36659 Registry: Chilliwack Between: Julie Kristine Callaghan Plaintiff And Canadian National Railway Company, Chris Babcock and Greg MacMillan Defendants And Canadian National Railway Company, City of Chilliwack, Estate of Mathew Jarvis, ISL Engineering and Land Services Ltd., Chris Babcock and Greg MacMillan Third Parties Before: The Honourable Justice Caldwell Reasons for Judgment In Chambers Counsel for the Plaintiff: B. Vickers L. MacLeod Counsel for the Defendants and Third Parties Canadian National Railway Company, Chris Babcock and Greg MacMillan: M.L. Camlay A.J. Mollard For the Third Parties City of Chilliwack, Estate of Mathew Jarvis, and ISL Engineering and Land Services Ltd.: No Appearances Place and Date of Hearing: Abbotsford, B.C. January 31, 2025 Place and Date of Judgment: Chilliwack, B.C. March 27, 2025 [1] The defendants apply to strike the jury notice filed by the plaintiff on May 29, 2024.

FACTS [2] On May 26, 2018, Matthew Jarvis was seated in an electric wheelchair on the railway crossing at Broadway Street in Chilliwack. One or more of the wheels on his wheelchair may have been stuck in the gap alongside the rail tracks. A train was approaching. The plaintiff, Ms. Callaghan, attempted to free the wheelchair and/or Mr. Jarvis. She failed. The train struck and killed him and injured Ms. Callaghan. She claims to have suffered significant physical, emotional, and financial damages as a result of the incident and seeks compensation. [3] The claims as against certain of the defendants/third parties have settled but the claim against the Canadian National Railway Company ("CNR") and the two named defendants remains alive, and certain issues involving apportionment may well remain to be dealt with at trial. THE DEFENDANTS' POSITION [4] The defendants say this is a very complex case and focus their submissions on the Supreme Court Civil Rules, R. 12-6(5)(a)(ii). They apply for an order that the trial be heard by the Court without a jury on the ground that the issues involved are of an intricate or complex character. [5] First, the defendants say that there will likely be at least 14 expert reports in evidence, including: - an engineer crash reconstruction report from the plaintiff and two such reports from the defendants; - a report of a physiatrist from each of the

plaintiff and the defendants; - a psychiatric report from the plaintiff; - an occupational therapist/cost of future care report from the plaintiff; - two reports of a rheumatologist from the plaintiff; - an economist's report from the plaintiff; - a functional capacity report from the defendants; and - a vocational assessment report from the defendants. [6] In addition, the defendants say that other complicating factors include the presence of a "BC Ferries" agreement, allegations of over 30 breaches of a standard of care, complex and transitioning safety regulations prescribed by the CNR, apportionment issues among the various defendants and the plaintiff, and analysis of law associated with rescuer liability. THE PLAINTIFF'S POSITION [7] The plaintiff says that this case is not more, and certainly not significantly more, complex than many motor vehicle or other personal injury cases. While the number of experts and reports may or may not be slightly higher than such cases, the types of medical and other experts involved are those commonly seen in jury and non-jury personal injury trials. Conflicts between and among experts is to be expected and is routinely dealt with by juries. [8] Counsel says that consultation and formulation of the proper questions to be put to the jury and proper instructions as to the applicable law can and will allow the jury to render a proper and fair decision.

ANALYSIS [9] The opportunity, and in fact the right, of a party to elect to have their civil trial heard and determined by a judge sitting with a jury has been a fundamental part of British common law and jurisprudence for hundreds of years. [10] That tradition is recognized and carried on in our Rules, specifically R. 12-6. [11] There is a presumptive right to a trial by jury in a personal injury case. It is not to be lightly cast aside. The jury notice should be struck only where a judge is satisfied, under R. 12-6(5)(a) criteria, that the issues cannot be tried fairly by a jury. The onus is on the applicant and is not easily satisfied: MacPherson v. Czaban, 2002 BCCA 518 at para. 17. [12] The circumstances in which a jury notice may be set aside are clearly stated in R. 12-6(5): (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, or (b) at any time for an order that the trial be heard by the court without a jury on the ground that the trial relates to a fast track action or to one of the proceedings referred to in subrule (2). [13] There is a two-step analysis when addressing applications under R. 12-6(5)(a)(ii). First, the court must determine whether the issues in the case require a prolonged examination of documents, scientific investigation, or are otherwise of an intricate or complex character. Justice Fitch elucidated this step in Rados v. Pannu, 2015 BCSC 453 at para. 34 (aff'd in 2015 BCCA 459 at paras. 6-7): [34] The fact that lengthy materials are likely to be filed does not necessarily mean that a prolonged examination of them is required. The fact that there will be a considerable amount of evidence led does not necessarily make the issues intricate or complex. Issues may be intricate or complex if, for example, the judge would experience difficulty in framing questions for the jury. It is the character of the issues that is the focus of the inquiry. The number of issues in play is not necessarily an accurate gauge of intricacy or complexity: MacDonald v. Smith (1983), 48 B.C.L.R. 285 (B.C.S.C.) at para.

18. Finally, complexity must be assessed cumulatively, with the whole of the trial in mind, and with an appreciation of the extent to which factual findings will impact on the weight that may be given to other expert reports and guide the assessment of other issues, including the quantification of damages. As Chief Justice McEachern observed in MacDonald v. Smith, while it may be the case that individual issues viewed in isolation could be tried conveniently with a jury, attention must also be paid to difficulties that are likely to arise from the interaction of and between different issues. Put differently, where multiple issues are to be considered, the interplay between otherwise relatively uncomplicated issues can make them intricate or complex in nature. [14] If the answer to this first question is yes (a prolonged examination is necessary, or the issues are intricate or complex), the court must then consider whether the jury can conveniently conduct that examination. This second step of the inquiry "obliges the court to exercise its discretion, the amplitude of which is somewhat broader when a finding has been made that the issues in the case are intricate or complex": Rados at para. 35. [15] Having reviewed the submissions of counsel, the pleadings, and the materials filed in support of and opposing this application, I am unable to conclude that, taken as a whole, this

case can be properly characterized as an unduly or significantly complex or intricate matter or one which involves issues which could fairly be labelled as intricate or complex. [16] The matter does not involve an unusually large number of litigants. The legislation and regulations governing the parties are no more complex or confusing than most legislation. The legislation, regulations, and other issues regarding rescuer law can be adequately explained to the jury by the trial judge by way of proper instructions. The number and types of experts involved is not unusual in comparison to other significant personal injury claims. Many such claims also routinely involve assessments of liability apportionment. [17] Even if I am wrong, and this is a matter which involves at least some issues of higher complexity and intricacy, I am not satisfied on the materials that it would be to the level that a jury could not adequately deal with such issues and render a proper decision. [18] Various authorities have addressed the issue of juries and their ability to deal with the complexities of trial evidence and argument. [19] In Gulamani v. Chandra, 2009 BCSC 1042, Justice Arnold-Bailey commented: [43] In my view, the point to be drawn from Reischer is clear: juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly

presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury (Rule 39(27)(a)(i)), or whether the issues are of a complex or intricate nature (Rule 39(27)(a)(ii)), is relatively high even in the context of a long trial with many difficult legal questions. [20] In Cahoon v. Brideaux, 2010 BCCA 228, Justice K. Smith stated: [4] Since jurors are chosen from all walks of life, juries collectively possess a broad range of education and life experiences. The level of formal education of jurors will range from elementary school to post-graduate university degrees, but education is not the primary attribute of a competent juror. Juries are judges of the facts and the ability to find facts rests less heavily on erudition than it does on sophistication acquired through experience in the affairs of life, experience that is possessed eightfold by civil juries. It follows that the collective ability of juries to understand things, to evaluate motives, to analyze probabilities, to determine what is in harmony with human experience, and to reason from evidence to fact and from fact to rational inference must be, with rare exception, at least equal to that of any single individual. It follows as well that juries will generally recognize misrepresentations of the

evidence, that they will be offended by unfairness and by submissions that insult their intelligence, and that they will not be moved by sophistry or by appeals to cheap sentimentalism, prejudice, or base motives. As Riddell J.A. aptly said almost a century ago, in Dale v. Toronto R. Co. (1915), 24 D.L.R. 416 at 417 (Ont. C.A.), ... jurymen are not the compounds of ignorance, weakness and prejudice they are sometimes supposed to be; and in many cases in my own observation, I am confident that unfair argument and "mud-slinging" hurt rather than helped those who indulged in them. [21] In Froese v. Wilson, 2017 BCSC 2042, Justice N. Smith observed: [14] In Wipfli, McEachern C.J.S.C., as he then was, said the focus must be not only on a jury's ability to understand scientific evidence, but also on its ability to retain that understanding through a long trial in a way that permits an analysis of the evidence (at 349): I do not believe that it will be convenient to make this scientific investigation with a jury. If the trial proceeds with a jury, and if it should last 25 days or thereabouts, the members of the jury whose note-taking ability is at least questionable will listen, usually in silence, to many days of scientific evidence about the matters mentioned above. They will then hear submissions pro and con which will compress this case the way counsel choose to compress it but

not, perhaps, the way the jury would like to have it discussed. The jury will have practically no opportunity (except possibly for a few hesitant questions), to take part in the trial, and the jury will have no verbal interaction or opportunity to discuss this case with the witnesses or with counsel, as a judge has. The jury will then hear the judge's best efforts to analyze and simplify the case, but it is doubtful if the case can properly be explained in a protracted monologue, keeping in mind that I have mentioned only some of the issues in the case. [15] However, 36 years after Wipfli was decided, almost all trials (including serious criminal trials, where the right to a jury trial is constitutionally guaranteed) have become longer and more complex, with a proliferation of expert evidence. In that time, the court has increasingly recognized the intelligence of contemporary juries and their ability to assess properly presented expert evidence: Cliff v. Dahl 2012 BCSC 276 at para. 28. [17] This trial is set for 20 days--a length no longer unusual for a jury trial. Although there is a multiplicity of expert evidence, it comes from experts in fields that are commonly at issue in personal injury cases and there appears to be a great deal of common ground as to the nature of the injuries suffered by the plaintiff in the motor vehicle accident. As said above, the main areas of

disagreement relate to the long-term impact of those injuries and the cause of the plaintiff's ongoing symptoms. I am not persuaded that those areas of disagreement are so complex that they cannot be considered by a properly instructed jury on the basis of properly presented and explained expert evidence. [18] Counsel for the plaintiff also alluded to a concern that a jury may take a harsher view of the plaintiff's conduct than would a judge in assessing liability. That is entirely speculative and I presume jurors will be attentive to whatever instructions the trial judge gives them on how they are to go about assessing the relative blameworthiness of both parties. However, the possibility that a jury verdict may reflect community attitudes that differ from those of judges is one of the frequent justifications for retaining the jury system. [22] In my respectful view, these comments, made by three learned jurists, are directly applicable to the case and issues before me. I am not persuaded that the issues are complex or intricate, but even if they are somewhat so, it is not to the extent needed to displace the plaintiff's right to a trial by judge and jury. I am satisfied that a properly instructed modern jury, working with properly crafted questions, is eminently capable of reaching a just and proper decision. [23] The application is dismissed. Costs will be in the cause. "Caldwell J."