J. 1993 S.H. No. 93‑4487 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: J. Colleen Killorn, Plaintiff and HealthVision Corporation, body corporate formerly known as H.C.S. Health Care Systems Inc., body corporate, DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter R. E. Goodfellow on February 1, 1996 DECISION: February 1, 1996 (Orally) WRITTEN RELEASE OF ORAL: February 2, 1996 COUNSEL: Raymond S. Riddell, Solicitor for the Plaintiff William L. Ryan, Q.C. Solicitor for the Defendant and Nancy G. Rubin GOODFELLOW, J.: BACKGROUND J. Colleen Killorn, in her statement of claim, filed September 9, 1993 seeks a declaration of wrongful dismissal and damages including commissions and remuneration in lieu of reasonable notice, mental distress and punitive damages. Additionally she claims commissions due under her remuneration terms of her employment. The defence filed October 18, 1993 only admits the basics of the party's status and acknowledges the hiring of Ms. Killorn as an account manager in November, 1989, at which time they entered sales compensation package and her employment was terminated on July 12, 1993. Paragraphs and of the defence specifically state: "8. On termination of her employment, the Plaintiff was offered $14,000, less statutory deductions, in lieu of notice. She was also advised that she would be paid commissions on any payments received from her accounts within 90 days in accordance with the terms of the Sales Compensation Plan. 9. The Defendant states that on the expiry of the 90 days from the date of the Plaintiff's termination, the Defendant calculated commissions payable to the Plaintiff based on payments received from her accounts and the Plaintiff has now been paid all commissions earned in accordance with the Sales Compensation Plan." Notice of trial with jury was filed March 10, 1995. date assignment conference was held June 1, 1995 and trial dates were set for February 5, 6, 7, 8, 9, 12 and 13, 1996. They were assigned June 8, 1995. On January 26, 1996 the issue of striking the jury notice was raised by the filing of this application. 2. LEGISLATION Judicature Act s. 34: "Trials and procedure 34 Subject to rules of Court, the trials and procedure in all cases, whether of legal or equitable nature, shall be as nearly as possible the same, and the following provisions shall apply: (a) in civil proceedings, unless the parties in person or by their counsel or solicitors consent to trial of the issues of fact or the assessment or inquiry of damages without jury, the issues of fact shall be tried with jury in the following cases: 1) where the proceeding is an action for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false imprisonment; 2) where either of the parties in proceeding requires the issues of fact to be tried, or the damages to be assessed or inquired of with jury and files with the prothonotary and leaves with the other party or his solicitor notice to that effect at least sixty days before the first day of the sittings at which the issues are to be tried or the damages assessed or inquired of, except that, upon an application to the Supreme Court or to judge made before the trial or by the direction of the judge at the trial, such issues may be tried or such damages assessed or inquired of by Judge without jury, notwithstanding such notice, 3) where the judge at the trial in his discretion directs that the issues of fact shall be tried or the damages assessed or inquired of with jury; (b) in all other cases the issues of fact or the assessment or inquiry of damages in civil proceedings shall be tried, heard and determined and judgment given by judge without jury." Civil Procedure Rules: "1.05 In these Rules, unless the context otherwise requires, (a) 'Act' means The Judicature Act;" "Mode of trial 28.03 1) proceeding, or any question or issue arising therein, shall be tried with jury where required by the Act. 2) When the court deems it expedient to do so, it may, in such manner and upon such terms as it thinks just, try any proceeding, or any question or issue therein, with the assistance of one or more qualified assessors. 3) The court may refer proceeding, or any question or issue therein to referee, with or without the assistance of assessors, as provided in Rule 35. 4) In all other cases, proceeding, or any question or issue therein, shall be tried by the court without jury." "Setting down of trial with or without jury at Halifax (2) The provisions of Rule 28.05 apply to the filing of Notice of Trial with or without Jury and Certificate of Readiness pursuant to subsection (1) of this Rule with necessary modifications to include Notice of Trial with Jury." "Setting down for trial without jury (4) Upon receiving notice of trial without jury and certificate of readiness, party shall be deemed to have consented to the filing of the notice unless, within ten days from the filing of the notice, the party makes an application to the court, in chambers, to show cause why trial date should not be assigned. (6) Unless the Court otherwise orders, notice of trial without jury and certificate of readiness shall not be withdrawn." 1) What follows from the delay in filing this notice to strike? 2) Is an action for wrongful dismissal, by its nature, one that should be tried without jury? 3) Has the defendant shown cogent reasons why the plaintiff should be deprived of her right to trial by jury? Issue (1) What follows from the delay in filing this notice to strike? Health Vision waited until January 26, 1996 to make the application, by which time the notice of trial with jury had been outstanding for 10.5 months and trial date set over months ago with no mention of intention to strike at the date assignment conference. The jury trial is set to commence in days. The failure to move to strike in timely fashion does not impact on the question of whether or not the jury notice should be struck. Indeed Trial Judge may, in rare cases, take all or part of the trial from the jury after its commencement. Nevertheless, timely motions should be made and not left until the eve of trial where such could easily have been advanced for some considerable time. C.P.R. 28.05 does not preclude the motion to strike. The delay in filing the notice to strike goes only to consideration of costs. If the motion is granted, it may be basis for denying or limiting costs. Issue (2) Is an action for wrongful dismissal, by its nature, one that should be tried without jury? It is clear that this question has and must be answered in the negative. Berneshawi v. Whitsed Publishing Ltd. et al. (1984), C.C.E.L. 57, Ont. S.C. headnote: The appeal Judge examined the case law concerning the prima facie right to jury and concluded that there was no general rule that an action for wrongful dismissal should be tried without jury. In case such as this where there were several issues that ought to be tried by jury, the jury notice should stand and it should be left to the discretion of the trial Judge. Here, the trial Judge would likely allow those issues which ought to be tried by jury to be tried by jury, and those that should not be so decided would be withdrawn from the jury by the trial Judge and decided by himself." Slone v. Toronto Stock Exchange (1991), 1991 CanLII 7315 (ON CA), C.P.C. (3d) 278, Ont. C.A.: As this court has frequently stated, the right to trial by jury is an important substantive right:... That right should not be denied prematurely. In our view, it was inappropriate to strike the jury notice in this case. All of the evidence going to the question of whether or not there was just cause for the appellant's dismissal was eminently suited to assessment by jury. Had the unfolding of the evidence made it appropriate to do so, specific issues, such as those relating to the assessment of damages, could have been withdrawn from the jury. We consider this an appropriate case in which to order new trial before jury." Issue (3) Has the defendant shown cogent reasons why the plaintiff should be deprived of her right to trial by jury? confess to some difficulty in determining when matter is pure question of law as contrasted to question of fact. When you are clearly faced with the interpretation of document or statute, ie. do the words "married spouse" mean they include other than two people not of the same sex? It is, in my view, question of law. What is required to be married in accordance with specific statute would also be question of law. Whether or not the parties went through marriage ceremony is question of fact. All too often the issues raised are mixed questions of law and fact. Here there is substantial agreement particularly that Ms. Killorn is entitled to damages in lieu of notice for the termination of her employment. What is in issue is the "reasonableness of such notice". It seems to me entitlement is legal question, and once this is conceded, the "reasonableness" is factual determination to be determined on the factors established by evidence such as listed in Swinamer v. Unitel Communications Inc., S.H. No. 11535, January 11, 1996, not yet reported, at p. 12: For example, in Annand v. Cox Enterprises Ltd. (1992), 1992 CanLII 4666 (NS SC), 111 N.S.R. (2d) 196, the factors were: 1. Previous employment; 2. Character of employment: 3. Standard of employment achieved; 4. Length of service; 6. Availability of similar employment; 7. Self‑imposed limitations on employment." The weight to be attached to factors that are established in evidence is for the trier of facts. Whether or not there was variation of the employment contract or whether or not Ms. Killorn, by conduct or otherwise, agreed to variation is, in my view, question of fact. The issue of claim for mental distress is more difficult to address. There is series of Ontario Superior Court decisions indicating such an issue was not "appropriate" for jury. The Slone v. Toronto Stock Exchange, above, decision of the Ontario Court of Appeal did not meet head on these trial decisions but did indicate that if it were appropriate, specific issues such as those relating to damages could be withdrawn by the Trial Judge and to deny the right of trial by jury by striking jury notice would be premature. On balance, I conclude the defendant has not met the onus of establishing the plaintiff should have her prima facie entitlement to a jury trial denied. Any preliminary findings made by me in this application do not diminish or encroach on the jurisdiction of the Trial Judge to determine at any point of time whether the case or parts of it should be withdrawn or not put to the jury. I conclude the application should be dismissed. 4. GENERAL PRINCIPLES MacNeil v. Hill The Mover (1961) 1961 CanLII 416 (NS CA), 27 D.L.R. (2d) 734 (N.S.C.A.) where Ilsley, C.J. stated, at page 737: "King v. Colonial Homes Ltd. 1956 CanLII 13 (SCC), 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 substantive right of great importance of which party ought not to be deprived except for cogent reasons.' MacDonald, J. at p. 748: “The issue before Parker, J. was not whether there should be trial with or without jury, however; it was the vastly different issue as to whether the plaintiff's right to trial by jury should be taken away. By the giving of the jury notice the plaintiff had acquired what has often been described as substantive right, and one which (though subject to deprivation in proper case) is not to be taken away without 'sufficient' or 'cogent' reasons: Starrett v. Com. Atlantic Railway R. Co., supra; Neelands v. Haig, supra; King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), D.L.R. (2d) 561 at p. 556, [1956] S.C.R. 528 at p. 533. It appears to me that Parker, J., failed to give any or sufficient weight to this vital factor; and that in thus depriving the plaintiff of that right without sufficient or cogent reason he committed an error of principle, and one which worked manifest injustice." jury notice will be set aside where issues are primarily ones of law and the issues of fact are inseparable from issues of law. In Lintaman v. Goodman (1983), 61 N.S.R. (2d) 444 T.D., Burchell J. at p. 322 stated: "What is disputed is the legal effect of the documents and transactions to be reviewed and, with one possible exception (the question of what may have been reasonable notice period under debenture), the questions that arise are questions of law rather than questions of fact. Even the one possible exception have mentioned seems at most to be mixed question of law and fact .I agree that, where possible questions of fact should be separated from purely legal issues and such questions of fact should be left for the jury. in the present case, do not see how such separation can be made in any useful or practical way. An attempt to do so only brings into sharper focus an awareness that the issues of fact in this case are negligible." jury notice may be struck out if the legal issues to be dealt with are sufficiently complex that the jury will have difficulty in deciding the factual matters. Barrow v. Keating (No. 2) (1985), 68 N.S.R. (2d) 289, T.D., Nunn J. jury notice may be struck out where the factual issues are of such technical or scientific nature that jury cannot adequately deal with the matter. Leadbetter v. Brand (1980), 37 N.S.R. (2d) 660 T.D., Hallett J. Electrical Distributors v. W.C.I., 11 C.P.C. (3d) 271, MacAdam, J. at p. 279 The jury is therefore being left to determine, after hearing all the evidence, whether the parties are governed by written agreement or by an oral agreement, which may include, in part, some written documentation. If the jury determines that the agreement is oral, then it is for them to determine the contents and, after receipt of proper instruction, to determine whether there has been breach and the quantum of damages." and also at p. 280: As noted earlier, merely because it is difficult to explain to the jury the law to be applied to the facts is not grounds for disentitling party to its substantive right to have jury, as its trier of facts. The application is therefore denied." COSTS The plaintiff shall have her costs of this application taxed in the amount of $500 inclusive of disbursements payable forthwith.
This was an application by the defendant to strike the plaintiffs Notice of Trial With a Jury in a wrongful dismissal action. The notice had been outstanding for more than 10 months at the time the application was made, and a trial date had been set seven months prior to the application. Dismissing the application with costs, that, after a review of the law and the facts in this case, the defendant had not met the onus of establishing that the plaintiff should have her prima facie entitlement to a jury trial denied.