In a recent court decision, Mussio Goodman ensured that their client will have a fair trial
ICBC is entitled to have a jury hear his or her case as of right. However, there are times when it is unfair to the injured party to have a jury decide their case because it is too complicated for the jury to understand. In these circumstances the injured party can apply to the court to have the jury struck, and have the case decided by only a judge.
In the recent court decision of Forstved v. Kokabi, 2018 BCSC 1878, Mussio Goodman ensured that their client will have a fair trial by obtaining an order to remove the jury.
Removing the defendant’s right to a jury is a tough thing to do, and the court will only do so where the injured party makes a strong argument that the case involves prolonged examination of documents and/or is overly complex.
Mussio Goodman’s Argument
In determining whether it is convenient to have a jury hear the evidence Courts have noted that jury members are to be considered quite capable, as referenced by Master Dick:
 The context in which a court is obliged to apply Rule 12-6(5) was set out by Madam Justice Arnold-Bailey in Gulamani v. Chandra, 2009 BCSC 1042 at para 43:
…juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury … or whether the issues are of a complex or intricate nature … is relatively high even in the context of a long trial with many difficult legal questions.
Mussio Goodman argued on behalf of the plaintiff that the trial could not be conveniently heard by a jury:
 Counsel for the plaintiff submits that this matter will require prolonged examination of documents and scientific investigation such that it cannot be conveniently heard by a jury. There is disagreement as to whether the plaintiff sustained a concussion in the accident, a mild traumatic brain injury, and/or a brain injury of any severity. There is a difference of opinion as to whether the plaintiff suffers from any cognitive disabilities as a result of the injuries sustained in the accident…
On the other hand ICBC argued that the case was a typical one, well understandable by the jury. By providing an in-depth overview of their case, Mussio Goodman convinced the court that the high bar to remove the defendant’s right to a jury had been passed and the complexity of the case warranted a trial with only a judge. Master Dick concluded:
 In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.
 If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.
Ensuring a fair trial means having lawyers who understand the law, what arguments to make, and the best strategy for your particular case.Tweet