Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Martin v Chrysler Canada Inc., 2019 ABCA 347
Case Management Order | Test for Jury Trial
Sweetland v MacInnis, 2019 ABQB 736
Statement of Claim Amendment | Limitation Period
This was an unsuccessful appeal of a Case Management Order refusing to direct that this negligence claim be heard by a Civil Jury, and refusing to make a procedural order requiring “competing experts meet and provide a signed statement identifying facts on which they agree or disagree, for the purpose of streamlining the expert evidence.”
The Court of Appeal directed that Case Management Orders are entitled to deference:
 Directions relating to the management of expert evidence at trial falls squarely within the mandate of a case management judge: Rule 4.14(1)(g)(ii). Discretionary decisions of a case management judge are entitled to considerable deference because of the case management judge’s intimate knowledge of the litigation, “and will not be overruled unless they reflect an error of principle or are clearly unreasonable”: Piikani Nation v Kostic, 2018 ABCA 234 (CanLII) at para 12. In our view, no such error of principle has been demonstrated here, and we cannot say that the case management judge’s assessment of the proposed Procedural Order was unreasonable. There is no basis for this court to intervene in this decision.
The Court of Appeal affirmed the following test for Jury Trials:
 The case management judge acknowledged that the appellant has a prima facie right to a jury trial, and the only issue was whether the court ought to exercise its discretion to deny the application under s 17(2) of the Jury Act. In exercising that discretion, the court must apply a two-part test:
- Whether there “might” be a prolonged examination of documents or accounts, or a scientific or long investigation?
- Whether such an examination or investigation “cannot conveniently be made by a jury”?
It was estimated that over twenty experts would testify at Trial. The Court of Appeal refused to interfere with the Case Management Order on the following basis:
 In Balogun v Pandher, 2010 ABCA 40 (CanLII), this court summarized the test to be applied on an appeal from a case management judge’s order denying a civil jury trial, at paras 5 -8:
 A jury trial, however, can be refused where the trial involves matters that cannot “conveniently be made by a jury”: s.17(2) of the Act. The case management judge looked at the criteria from case law for determining inconvenience under s. 17(2) of the Act. Those criteria include “(a) a prolonged examination of documents or accounts, or (b) a scientific or long investigation”. To assess these criteria, a case management judge will consider such factors as the number of parties and factual issues, the number of experts, the need for interpretation, the legal issues, the potential for conflicts of expert opinion, questions of causation and other factors including, in our view, what the history of the litigation suggests about the approach the parties can be expected to take. He concluded in his 2007 ruling that “this is not a case that can be conveniently heard by a jury taking into account the number of issues involved with five Plaintiffs, the length of trial time required, the amount and complexity of the expert evidence, the number of medical reports and the history of the litigation”: at para. 43. No appeal was taken from that 2007 decision. As to the more recent 2009 ruling, the case management judge referred to his previous decision declining to order a jury trial and concluded that he saw “no reason to change [his] previous decision and order a jury trial.”
 In sum, the appellants argue that the trial of this action would not be so prolonged or complex that it could not be conveniently heard by a jury. The respondent submits that the case management judge properly considered the applicable criteria in determining that the case was inappropriate for a jury trial. The respondent also submits that the case management judge properly considered whether he should re-visit his earlier ruling.
 The decision of the case management judge to decline to reverse his prior ruling, and his decision to find no basis to order a jury trial in this case, were both exercises of discretion. As such, the standard of review for the factual underpinnings of the exercise of discretion is deferential absent palpable and overriding error: L. (H.) v. Canada,  1 S.C.R. 401,  S.C.J. No. 24 (QL), 2005 SCC 25 (CanLII) at paras. 52 to 56. The standard of review for the exercise of discretion by a case management judge is also deferential and appellate intervention is warranted only if the case management judge has clearly misdirected himself on the facts or the law, proceeded arbitrarily, or if the decision is so clearly wrong as to amount to an injustice: see e.g. Chevron Canada Resources v. Canada (Executive Director of Indian Oil and Gas Canada) (2009), 457 A.R. 132,  A.J. No. 496 (QL), 2009 ABCA 180 (CanLII) at paras. 4 to 6; Trigg v. Lee‑Knight,  A.J. No. 653 (QL), 2009 ABCA 224 (CanLII), leave denied,  S.C.C.A. No. 429 (QL) at para. 9; Balogun v. Pandher,  A.J. No. 1339 (QL), 2009 ABCA 409 (CanLII) at paras. 10 and 11.
 Here we are unable to discern any basis for intervention either on (a) the decision of the case management judge to refrain from re-considering his earlier decision (if, indeed, that is what he did since he appears to have taken a renewed look at the matter substantively) or (b) the decision of the case management judge on the merits under s. 17 of the Act if indeed the case management judge did re-consider the matter.
 In our view, the same principles apply here. Ultimately, the decision of whether a trial involves matters that can conveniently be heard by a jury is an exercise of discretion. The case management judge assessed the relevant criteria and made clear that, in his view, the case would have to be significantly simplified for a jury trial to be appropriate. He was not satisfied that the steps taken had resulted in the necessary simplification. There is no basis on which to intervene in the case management judge’s decision under s 17 of the Act.
This was an unsuccessful application to amend a Statement of Claim in a personal injury action to add claims of bad faith and conspiracy on the part of an insurer and adjuster. The Plaintiff lost her arm in a serious bus accident. She subsequently obtained a $250,000 line of credit from a litigation lender. She initially borrowed $120,000. Shortly thereafter, her insurer advanced her $250,000, but reserved its right to argue that treatment in the US was not required or that the expenses were excessive. Instead of paying off her line of credit, she used her advance for other expenses. Over time the interest on her line of credit grew, and at the time of the application she owed $500,000 in interest on the principle debt of $250,000. She then sought to amend her Statement of Claim to add bad faith and conspiracy against the insurer in order to make the insurer responsible for her interest debt.
The Court concluded that the limitation period had expired on the claim, but then considered whether the Insurer could be added to the claim under Section 6(4) of the Limitations Act, which allows claims to be added outside a limitation period in certain circumstances. The Court concluded that the allegations were not related to the original claim, and therefore could not be added.
In addition, the Court examined at length the ability to seek advance payments under Section 581 of the Insurance Act, and determined that the claim was hopeless on the basis that if she could not meet the necessities of life, her remedy was to bring an application for an advance payment.