Keeping v. Portage La Prairie Mutual Insurance Company

Keeping v. Portage La Prairie Mutual Insurance Company Court Supreme Court Date 2009-11-10 Citation 2009 NSSC 362 Docket Hfx 307018 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Relations Library Sheet - Keeping v. Portage La Prairie Mutual Insurance Company - 2009 NSSC 362 - 2009-11-10 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Keeping v. Portage La Prairie Mutual Insurance Company, 2009 NSSC 362 Date: 20091110 Docket: Hfx No. 307018 Registry: Halifax Between: Marjorie Keeping Plaintiff v. The Portage La Prairie Mutual Insurance Company Defendant Judge: The Honourable Justice C. Richard Coughlan Heard: October 29, 2009 in Halifax, Nova Scotia Oral Decision: November 10, 2009 Written Release of Decision: December 14, 2009 Counsel: Wayne A. Bacchus, for the Plaintiff Lisa Richards, for the Defendant Coughlan, J.: (Orally) [1] Marjorie Keeping commenced an action against The Portage La Prairie Mutual Insurance Company for loss of income benefits, pursuant to section B accident benefits of an automobile insurance policy Ms. Keeping had with Portage La Prairie. [2] Portage La Prairie moves for an order to convert the action to an application. Civil Procedure Rule 6.02 provides: 6.02 (1) A judge may order that a proceeding started as an action be converted to an application or that a proceeding started as an application be converted to an action. (2) A party who proposes that a claim be determined by an action, rather than an application, has the burden of satisfying the judge that an application should be converted to an action, or an action should not be converted to an application. (3) An application is presumed to be preferable to an action if either of the following is established: (a) substantive rights asserted by a party will be eroded in the time it will take to bring an action to trial, and the erosion will be significantly lessened if the dispute is resolved by application; (b) the court is requested to hold several hearings in one proceeding, such as with some proceedings for corporate reorganization. (4) An action is presumed to be preferable to an application, if the presumption in favour of an application does not apply and either of the following is established: (a) a party has, and wishes to exercise, a right to trial by jury and it is unreasonable to deprive the party of that right: (b) it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility. (5) On a motion to convert a proceeding, factors in favour of an application include each of the following: (a) the parties can quickly ascertain who their important witnesses will be; (b) the parties can be ready to be heard in months, rather than years; (c) the hearing is of predictable length and content; (d) the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross-examination. (6) The relative cost and delay of an action or an application are circumstances to be considered by a judge who determines a motion to convert a proceeding. [3] Ms. Keeping has the burden of satisfying the Court that the action should not be converted to an application - Rule 6.02(2). Both parties agree the factors set out in Rule 6.02(3), preferring an application to an action, do not apply in this matter. [4] Civil Procedure Rule 6.02(4) sets out circumstances where an action is presumed to be preferable to an application. There is nothing before me to indicate Rule 6.02(4)(b) applies to this case. Rule 6.02(4)(a) provides: (a) a party has, and wishes to exercise, a right to trial by jury and it is unreasonable to deprive the party of that right; [5] In his pre-hearing submission, counsel for Ms. Keeping stated Ms. Keeping wished the matter tried by a jury. I accept that submission as showing Ms. Keeping wishes to exercise her right to trial by jury. In Nova Scotia, a party has a substantive right to a jury trial. [6] In giving the majority opinion in MacNeil v. Hill the Mover (Canada) Ltd. and Cannon (1961), 27 D.L.R. (2d) 734, IIsley, C.J.N.S. stated at p. 737: The plaintiff, having given a jury notice, had a prima facie right to a jury: Starratt v. Dom. Atlantic R. Co. (1912), 5 D.L.R. 641 at p. 644, 46 N.S.R. 272 at p. 276, Butler v. Charlottetown et al. (No. 1), [1944] 3 D.L.R. 343, 17 M.P.R. 193. See also Burton v. Harding & Marks, [1952], 3 D.L.R. 302 at p. 306, O.W.N. 126 at p. 128, per Mackay, J.A.: Subsection (3) of s. 57 [the counterpart of the proviso of our s. 42(1)(b)] by its very nature presupposes the intervention of some outside circumstances or occurrences making it just and desirable, because of such intervention, that the action should be tried without a jury. King v. Colonial Homes Ltd., 4 D.L.R. (2d) 561 at p. 566, [1956] S.C.R. 528 at p. 533 per Cartwright, J.: “This Court has more than once affirmed that the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except from cogent reasons.” and Neelands & Neelands v. Haig, 9 D.L.R. (2d) 165 at p. 167, [1957] O.W.N. 337 at p. 339, per Laidlaw, J.A.: The right of a party to a trial with a jury is a substantive one. The defendant in this case gave notice of trial by jury, and he is not lightly to be deprived of his right to have the trial proceed in that way. A trial Judge has a wide, and indeed one might say an absolute, discretion as to the mode of trial, but his power to decide whether a case should be tried with a jury or without a jury is one that cannot be exercised arbitrarily or capriciously. It must be exercised in a judicial manner and there must be sufficient reason to deprive a party of the substantive right to trial in the manner chosen by him. [7] In Wall v. 679927 Ontario Ltd. et al. (2006), 242 N.S.R. (2d) 300 (C.A.), Oland, J.A., in giving the Court’s judgment, stated at p. 305: A party to litigation is not to be deprived of the prima facie right to a jury trial except for cogent reasons ... [8] In appropriate cases, a judge can for cogent reasons require the trial proceed before a judge rather than a jury despite an election for trial by jury. Examples of such reasons include: where the case involves issues of law rather than fact, or where the issues of fact are negligible or so closely interwoven with issues of law to be inseparable, where the case involves scientific or technical issues that cannot be conveniently presented to the jury, or where the evidence is extensive or complex. [9] Rule 6.02(4)(b) goes on to provide the condition with regard to the trial by jury “and it is unreasonable to deprive the party of that right”. A party having a substantive right to a trial by a jury, it would be unreasonable to deprive a party of that right unless cogent reasons as referred to above exist. [10] The issues in question in this proceeding are within the ability of a jury. [11] In this motion there is not the evidence before me of cogent reasons to deprive Ms. Keeping of her expressed wish to have a jury trial. Therefore, in the circumstances of this case, I find it would be unreasonable to deprive Ms. Keeping of her right to trial by jury. The presumption preferring an action to an application has not been rebutted. [12] The motion is dismissed. [13] After hearing submissions, I award Ms. Keeping costs in the amount of $750.00 in the cause. ______________________________ Coughlan, J.