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Jury Permitted Despite Fairness Concerns

Can ICBC elect to have a jury decide my case? What if my injuries happen when I am drunk and riding in the back of a pickup truck? What if the jury may be more critical of me than a judge would be?

In a decision released last week (Froese v. Wilson 2017 BCSC 2042) the plaintiff requested to strike a jury notice in an ICBC claim. The plaintiff was 17-years-old and had become severely intoxicated at a house party. He left the house party riding in the cargo box of a pickup truck. Ultimately the movement of the pickup truck caused him to fall out of the truck. He sued the driver and the owner of the pickup truck for his injuries and losses.

The matter was set down for a 20 day trial. The defendants filed a jury notice – electing to have the trial heard by a judge and jury, rather than a judge alone.  In applying to have the jury struck, the plaintiff argued that the matter was too complex for a jury (there were to be 19 expert witnesses), and that the jury may view the plaintiff’s conduct “harshly” in their assessment of liability.

In dismissing the application to strike the jury, Mr. Justice N. Smith provided the following reasons:

[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.

[19]         Counsel also argues that the outcome of this trial may determine the course of the rest of the plaintiff’s life and subjecting him to the uncertainties inherent in a jury trial is inconsistent with the object of a just determination on the merits set out in R. 1-3.

[20]         Although I have a certain sympathy with the plaintiff’s concern about the risks and uncertainties in a jury trial, the fact remains that R. 12-6 continues to give either party the right to unilaterally select trial by jury. Unless the party who does not want a jury trial can meet the onus of showing that it is not appropriate in a particular case and the presumptive right to a jury trial should be denied, a jury trial and verdict must be considered to come within the “just determination” envisioned by R. 1-3.

[21]         The plaintiff has failed to meet the onus in this case and the application to strike the jury notice must be dismissed.