Case falls wholly beyond those where court can exclude jury, ruling finds
The British Columbia Court of Appeal has allowed an appeal from an order striking a jury notice upon determining that the chambers judge gave weight to irrelevant considerations in a case entirely outside those appropriate for the jury’s exclusion.
Cook v. McEwen, 2025 BCCA 325, involved a motor vehicle accident in March 2013. A vehicle owned and operated by the appellant struck the back of a vehicle stopped for traffic on Preston Avenue, Penticton, BC.
The respondent, a passenger in the rear-ended vehicle, brought a civil claim for damages in March 2015. She alleged that the appellant’s negligence caused her:
- severe personal injuries to the head, face, jaw, teeth, neck, shoulders, back, arms/hands, left hip, legs, ankles, and feet
- sleep disturbance, cognitive impairment, anxiety, and depression
- severe pain, lost wages, lost earning capacity, diminished homemaking capacity, lost amenities of life, and an inability to enjoy her usual recreational activities
The appellant admitted liability. However, the appellant asserted that the collision did not cause the respondent any injury, loss, damages, or expenses. The appellant added that the respondent failed to wear and securely fasten her seatbelt or properly adjust her headrest at the time of the accident.
In November 2023, the appellant filed a notice requiring a jury trial. In September 2024, the respondent applied to strike the jury notice and extend the time to do so.
In October 2024, a chambers judge of the Supreme Court of British Columbia summarily extended the time to apply to set aside the jury notice.
On appeal, the appellant alleged that the judge had incorrectly interpreted and applied r 12-6(5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.
Jury not struck
The Court of Appeal for British Columbia allowed the appeal and set aside the order striking the notice requiring a trial by jury upon finding that the case fell wholly beyond those in which the court could properly exclude the jury.
The appeal court ruled that the chambers judge erred in considering that there were multiple accidents, with some that occurred outside BC deemed complicating factors, and that the jury’s assessment might be similar to the analyses in Rab v. Prescott, 2021 BCCA 345; Dornan v. Silva, 2021 BCCA 228; and Lo v. Vos, 2021 BCCA 421.
The appeal court agreed with the appellant that a jury could not consider an overly complicated future income loss claim. The appeal court noted that the jury needed to answer a limited number of questions, rather than conduct a complex analysis, as in the Rab case.
The appeal court accepted that the judge hearing an application to discharge a jury should consider the case in its entirety and that numerous divisibility and allocation issues could collectively contribute to the complexity of the task and make the case unsuitable for a jury.
However, the appeal court pointed out that this matter did not engage multiple complicating issues. While the judge listed three issues, the appeal court said the judge should have excluded the following two issues from its analysis: the injury’s divisibility and the occurrence of some accidents in Alberta.
The appeal court added that the third issue – the need to comprehend and weigh the economist’s evidence – was not enough basis on its own to strike a jury notice.
The appeal court agreed with the appellant that the evidence established that the respondent ceased working at a particular job on a specific date and attributed her income loss to specific symptoms.
The appeal court saw no evidence that the respondent had a distinct, divisible injury in 2013 and no reasonable prospect of a contributory negligence finding. The appeal court noted that the appellant admitted that the contributory negligence was a boilerplate defence without supporting evidence.
