Huntley v. Larkin

Huntley v. Larkin Court Supreme Court Date 2007-02-23 Citation 2007 NSSC 221 Docket SH 140333 Judge/Registrar/Adjudicator McDougall, Glen G. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Huntley v. Larkin, 2007 NSSC 221 Date: 20070223 Docket: SH 140333 Registry: Halifax Between: Joellen Lynn Huntley by her litigation Guardian, Byron Huntley, Byron Huntley and Louise Huntley Plaintiffs v. Andrew Larkin, Karen Larkin and Theodore Hogeterp Defendants Judge: The Honourable Justice Glen G. McDougall Heard: February 15, 2007, Halifax, Nova Scotia Written Decision: July 30, 2007 Counsel: Raymond F. Wagner and Michael Dull, for the plaintiffs/respondents Andrea Baldwin, for the defendants Andrew and Karen Larkin Michael E. Dunphy, Q.C. and Michelle Kelly, for the defendant/applicant Theodore Hogeterp By the Court: [Orally] [1] The defendant, Theodore Hogeterp, has applied to strike the notice of trial with a jury and to allow the matter to proceed by way of judge alone. [2] The application is brought pursuant to Civil Procedure Rules 28.05, 28.08 and 37.10 and Section 34(a)(ii) of the Judicature Act, R.S.N.S. 1989, c. 240 (as amended) (the “Act”). BACKGROUND [3] The trial of this matter is scheduled to begin on April 10, 2007 and will continue for 33 sitting days. [4] In addition to the plaintiffs’ action for damages for injuries sustained in a single vehicle accident the defendants have filed cross-claims against one another. [5] The plaintiffs have settled with the defendants “Larkin”. They have entered into what is commonly referred to as a “Mary Carter” agreement. Their action against the defendant “Hogeterp” along with the cross-claims of the defendants remain to be decided. [6] The motor vehicle accident that resulted in severe injuries to the plaintiff, Joellen Huntley, occurred on April 18, 1996 in Centreville, Nova Scotia. The defendant, Hogeterp, operated a farm adjacent to the scene of the accident. At the time Mr. Hogeterp was the owner of a Red Bone Coonhound named Tasha. [7] The plaintiffs allege that the motor vehicle accident occurred when the defendant, Andrew Larkin, swerved the vehicle he was driving in order to avoid a dog that had run onto the highway. They further allege that the dog belonged to Mr. Hogeterp. As a result of Mr. Hogeterp’s alleged negligence in allowing his dog to roam onto the highway the plaintiffs say that he caused or contributed to the accident that resulted in the injuries sustained by Joellen Huntley. [8] Counsel for Mr. Hogeterp seek to have the matter heard by judge alone because of: (1) the complexity of the issues that must be decided; (2) the duration of the trial due to the number of anticipated lay and expert witnesses that will likely have to be called; (3) the existence of the Mary Carter agreement and the effect this might have on the jury; (4) the overall effect of trial length, complexity of the issues and the existence of the Mary Carter agreement when considered as a whole. [9] Counsel for the plaintiffs with the support of counsel for the Larkin defendants disagree with the position of Mr. Hogeterp’s counsel. They argue that neither the anticipated length of the trial nor the complexity of the issues nor the existence of the Mary Carter agreement whether thy are considered separately or together as a whole would justify denying the plaintiffs their substantive right to a jury trial. ISSUE: [10] The issue then for this court to decide is: Should the plaintiffs’ notice of trial with a jury be struck in order to allow the trial to proceed by way of judge alone? DISCUSSION: [11] The law relating to civil trials in Nova Scotia is contained in Section 34 of the Judicature Act, supra. Under the heading of “Trials and Procedure” the relevant provisions of Section 34 are as follows: 34 Subject to rules of Court, the trials and procedure in all cases, whether of a legal or equitable nature, shall be as nearly as possible the same and the following provisions shall apply: (a) in civil proceedings, unless the parties in person or by their counsel or solicitors consent to a trial of the issues of fact or the assessment or inquiry of damages without a jury, the issues of fact shall be tried with a jury in the following cases: (i) where the proceeding is an action for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false imprisonment, (ii) where either of the parties in a proceeding requires the issues of fact to be tried or the damages to be assessed or inquired of with a jury and files with the prothonotary and leaves with the other party or his solicitor a notice to that effect at least sixty days before the first day of the sittings at which the issues are to be tried or the damages assessed or inquired of, except that, upon an application to the Supreme Court or to a judge made before the trial or by the direction of the judge at the trial, such issues may be tried or such damages assessed or inquired of by a judge without a jury, notwithstanding such notice, (iii) where the judge at the trial in his discretion directs that the issues of fact shall be tried or the damages assessed or inquired of with a jury; [12] Under Section 34(a)(ii), a party has the prima facie right to a civil trial with a jury by filing the proper notice. Notwithstanding such notice the court may, upon application, either before the trial or by direction of the judge during the trial, order that the issues be heard or damages assessed by a judge without a jury. [13] In the Nova Scotia case of A.D. Smith Lumber Ltd. v. General Home Systems Ltd., [1986] N.S.J. No. 26, Grant, J., formerly of this court, at p. 3, stated: The courts of this province have very jealously guarded a litigant's right to have the issues of fact and/or the damages tried or assessed by a jury. We are one of the few provinces in the country where this is a right that each citizen enjoys and not a privilege.... [14] Justice Grant went on to say: The right to a jury trial is dealt with in our law as a substantive right, not just merely a procedural right. See MacNeil v. Hill the Mover et al (1961), 27 D.L.R. (2d) 734. Under our jurisprudence the functions of a jury and a judge are clearly defined. Issues of fact and inferences from these facts and damages are for the determination of the jury. Issues of law are to be determined by the trial judge. In most cases there are issues of fact and issues of law which can be isolated. There are also questions of mixed fact and law, which once the factual portion has been determined, the relevant law can readily be applied. [15] Counsel have referred to a number of other relevant cases from Nova Scotia and other jurisdictions dealing with the issue of striking a jury notice. I will not necessarily refer to each one of them separately. Suffice it to say that I have considered all of them in arriving at my decision. I will, however, refer to those that I consider to be of particular relevance to the issue. In the case of McLellan v. Shea, [2004] N.S.J. No. 473, Kelly, J., of this court stated, at para 15, the following: ¶ 15 The burden of proof in an application to strike a jury is on the applicant to show that there are cogent reasons to do so: Atkinson v. Flynn et al. (1998), 170 N.S.R. (2d) 385 (C.A.) at para. 5. ... [16] Counsel for the applicant has advanced a number of reasons for striking the jury notice. I have referred to them earlier. He suggests that the overall length of the trial, the complex nature of the medical and actuarial evidence pertaining to life expectancy, future care costs and lost future income and the existence of the Mary Carter agreement provide sufficient reasons to have this trial taken from the jury and given to a judge alone to determine. He also urged this Court to look at the totality of reasons before deciding the matter. [17] The trial is scheduled for 33 days beginning on April 10th and continuing until May 25th, 2007. It will require a significant commitment of time and energy by all participants but it is not so inordinately lengthy that the plaintiffs’ right to a jury trial should be denied. [18] As to the complexity of the issues there is no question that the jurors will be asked to deal with some very significant medical evidence from a number of different medical experts as well as actuarial evidence from qualified experts in that field. The jury will not be asked to consider whether the medical treatments prescribed and administered meet certain standards as they might be required to do in a medical malpractice case. Experienced and competent counsel can elicit the relevant evidence of both medical and actuarial experts in a manner that should be easily and clearly understood by all jurors. [19] The normal jury selection process should also enable counsel to select jurors that are capable of deciding the issues that must be decided. Based on my understanding of the case the issues are not overly complex. A properly instructed jury should have no difficulty in understanding the evidence that will likely be elicited from trained and qualified experts accustomed to explaining things in so-called layman terms. By that, I mean, in a manner that is understandable to reasonably intelligent individuals such as those called upon to comprise a jury. The individual and collective intelligence of jury members should not be underestimated. The complexity of the anticipated evidence in this case and the issues that will be left to the jury to decide are not so complex that the plaintiffs’ right to a jury trial should be denied. [20] As to the existence of the Mary Carter agreement I am also of the opinion that the trial judge, with the assistance of counsel, should have little difficulty in preparing an appropriate summary of the relevant aspects of the agreement to provide to the jury. The jury need not, and should not, be given a complete, unedited copy of the agreement. A summary or precis of the agreement with the appropriate instructions from the trial judge is all that is required to provide the disclosure required by the trier of fact. [21] In the case of Evans v. Jenkins (2003), Carswell Ont 475 (S.C.J.), Stinson, J., at paragraph 29, on pp. 5 and 6, said: ¶ 29 As has been indicated by many judges and commentators, where a plaintiff and one defendant enter into a Mary Carter agreement, there is a serious risk of distorting the judicial process. Former adversaries who had theretofore resisted allegations of fault and damages, now become allies in asserting those propositions to the detriment of another defendant. The normal dynamic of the adversarial process is, to some extent at least, skewed. [22] However, this is not the only thing that Justice Stinson had to say on the issue. At paras 30 - 33, he stated: ¶ 30 Recognizing this reality, the courts of this province have required disclosure of these agreements and the introduction of procedural safeguards to ensure a fair trial. Counsel for the plaintiffs and the defendant, Jenkins, provided notice of the existence of the Mary Carter agreement to counsel for the defendant, Cronk. They also provided a precis of the agreement but not a copy of the document itself. The parties all agree that the jury should be informed about the existence of the agreement. At my suggestion, counsel for the plaintiffs has prepared a proposed outline to provide to the jury. He has also brought a motion for directions concerning the manner in which the jury should be told about the agreement. Counsel for the plaintiffs and for the defendant, Jenkins, have resisted disclosure of the actual Mary Carter agreement to counsel for Cronk. ¶ 31 In my view, subject to redacting to delete particular amounts, the Mary Carter agreement must be disclosed to counsel for the non-settling defendant and to the court. Only in this fashion can counsel and the court properly assess and understand the new dynamic of a litigation and ensure that the trial proceeds in a fair fashion. ¶ 32 Without ascribing any bad faith to counsel for the settling parties, it cannot and should not be left to them to assess and decide whether the precis of the Mary Carter agreement that they have prepared is sufficient or adequate to acquaint the court or the jury with that dynamic. Based upon the considered and informed submissions of the parties, the court can rule on the appropriate disclosure to the jury and take such other steps as may be required in order to ensure the integrity of the judicial process. ¶ 33 Once counsel for the defendant, Cronk, has had an opportunity to review a copy of the edited version of the Mary Carter agreement and all counsel have had a chance to review the draft precis for the jury, prepared by plaintiffs’ counsel, I will receive submissions concerning the adequacy of that document and other aspects of trial procedure that may be affected by the Mary Carter agreement. I pause to observe that we have now gone through that process and I am awaiting delivery of the amended precis, which presumably will be in hand tomorrow morning. [23] It is clear from these comments that the jury must be made aware of the existence of the agreement. It is also clear that a summary or precis of the agreement is to be given to the jury. It is up to the trial judge after hearing submissions from counsel to either approve or, if necessary, prepare the summary. [24] If any further procedural safeguards are required to ensure a fair trial they can also be implemented by the trial judge. Any such procedural safeguards can be raised with the presiding judge by counsel prior to the commencement of trial. [25] None of the concerns raised by counsel for Mr. Hogeterp when considered in isolation or as a whole persuade me to deny the plaintiffs their substantive right to a jury trial. I, therefore, deny the application to strike. The matter shall proceed to be heard by a court comprised of a judge and jury. McDougall, J. I will now hear counsel on the issue of costs for the three applications heard by me and the fourth which resulted in an agreement amongst counsel on an independent medical examination, but leaving costs to be decided by me.