Protect your noggin
If you were given the option of being hit on the head with or without a helmet, which would you choose? Wearing a bicycle helmet reduces the risk of head injury by approximately 85-percent. The choice seems obvious doesn't it?
If the choice is so clear then why do one-third of Nova Scotian's still not wear helmets when cycling? According to Statistics Canada approximately 35% of Nova Scotia's still refuse to wear bicycle helmets on a regular basis.
For the other two-thirds of the Nova Scotia population, wearing a helmet when riding a bike has become as natural as putting on a seatbelt in the car (another obvious choice for most of us). Approved bike helmets are mandatory for all persons in Nova Scotia. If you are caught riding without a helmet you can be fined $141.16.
Drop in head injuries due to helmet use?
Since the laws implementation in 1997 there has been a drop in biking head injuries reported in the province. Between 1994 and 2004 there were approximately 19,140 hospital admissions for cycling related head injuries. The rate of cycling related head injuries decreased from 18 to 4.9 percent between 1994 and 2008. Surely these numbers are evidence of the laws effectiveness?
Well, not so fast. A recent report from BMJ (British Journal of Medicine) suggests that the number of cycling related head injuries were in decline prior to the enactment of the laws, and that they had very little to do with the decline in head injuries.
The report in the BMJ concluded that while the rates of admissions to hospitals for cycling related head injuries had decreased following the passing of helmet laws, the rate was already dropping at roughly the same rate prior to the passing of the legislation.
The report also noted that the provinces with helmet laws experienced a drop in head injuries that was almost the same as the drop experienced by provinces without helmet laws. The report concluded that the helmet laws did not do much to reduce hospital admissions for cycling head injuries.
Helmets still prevent injury
What the report is NOT saying is that helmets do not prevent head injuries. Rather, it is saying Canadians were beginning to wear bicycle helmets more and more prior to the enactment of the helmet laws.
Canadians were becoming more aware of the importance of proper headgear when cycling and were voluntarily protecting themselves from head injuries before the law told them to do so.
While it may be that the decrease in cycling-related head injuries is not a direct result of the helmet laws, this does not mean the law itself is flawed. What we can take from the BMJ study is that maybe there should be a greater focus on educating cyclists about the dangers of riding without helmets.
If more people began wearing helmets once they became aware of the risks, can we convince the last 35% of non-helmet riders to protect themselves?
For younger Canadians an adverse reaction to a pharmaceutical drug could be an inconvenience, but to seniors it could be life threatening. A report from the Canadian Institute of Health Information (“CIHI”) states that roughly 27,000 patients a year over the age of 65 end up in the hospital as a result of adverse reactions to their drugs.
According to the CIHI approximately 0.5% of Canadian seniors end up in the hospital every year due to their medication.
Further the cost to health carecare system in Canada of adverse drug reactions among seniors comes to approximately $35.7 million a year.
While the numbers of seniors at risk are high, they are not particularly surprising considering the fact that seniors often have to take a large number of drugs (polypharmacy) and their bodies are generally weakened due to aging.
More drugs = more adverse reactions
The report states that seniors on fifteen or more drugs were 11 times more likely (2.2%) to be hospitalized due to adverse reactions than seniors on five or less drugs (0.2%).
Blood thinners a common problem
According to the report from CIHI the most frequently associated drugs with adverse reactions are Anticoagulants (blood thinners). Seniors take Anticoagulants to prevent strokes and avoid heart attacks. The percentage of adverse reactions due to blood thinners was noted to be approximately 12.6 percent. The risk with Anticoagulants is they can lead to Hemorrhagic disorder (bleeding) due to misuse.
Cancer medication comes in at a close second with 12.1 percent.
So how do we stop our seniors from suffering health risks from adverse drug reactions?
Dr. David Hogan of the Health Sciences Centre in Calgary put together a useful tip sheet for avoiding adverse reactions. He recommends that patients:
(1) Know their medication – names and why they are taking them;
(2) Communicate with their doctor and pharmacist about ALL of their medication, and;
(3) Organize their drugs so they don’t mix up medications or end up taking their partner’s drugs by mistake.
Perhaps doctors should recommend certain organizational systems for seniors on multiple medications. For example, doctors can take the initiative in providing or recommending labeled plastic weekly dispensers.
Also, if you are close to a senior who uses multiple drugs it might be a good idea to double-check that they follow Dr. Hogan’s recommendations.
The tragic deaths of two toddlers in less than two weeks has brought attention to the dangers of leaving children unattended in cars: Children, cars and hot temperatures a deadly mix
Through my volunteer efforts with KidsandCars.org I have learned how dangerous it can be to leave children unattended in cars.
There are two facts that most people simply are not aware of that contribute to the danger.
Cars become ovens
First how hot a car can become: When it's 25 degrees C outside a car parked in the sun, even if the windows are cracked open, can reach temperatures of more than 50 degrees C (130 degrees F) in less than 10 minutes!
It gets dangerous fast!
The second thing most people don't realize is how dangerous that is for children. Adults can tolerate temperature over 100 degrees. But because children are so small, they don't eliminate heat from their body as well as adults.
Infants core temperatures increase 3 to 5 times faster than adults.
So when toddlers or infants are left alone in a hot car their core temperature can increase to over 40 degrees C in less than 10 minutes.
That's hot enough to serious brain injure, or even kill, a child.
Failure of memory
When something horrible like this happens it is human nature want to cast blame. People say: "I would never forget my child!" Because it reassures us it couldn't happen to us.
But what Neuroscientists will tell us is that with the demands on our attention and the cognitive distractions we face evey day, anyone can suffer a similar lapse of memory.
Most cases of children being left alone in cars are not intentional.
In most cases these are not failures of love, they are failures of memory and it can happen to anyone.
Teddy bear trick
That's why KidsandCars recommends some simple reminders to help parents and guardians remember that they have children with them.
My favourtite is what I call "The Teddy Bear Trick".
Keep a Teddy Bear in your child's car seat. When you place your child in the car seat, put the Teddy Bear in the passenger seat beside you.
When you get to where you are going, if Teddy is beside you, then you have a little passenger behind you.
Have a safe summer!
For more information you can go to Kidsandcars.org/canada.
The Cost of an Offer to Settle: Visual Design Consultants Inc. v. Royal and Sun Alliance Insurance Company of Canada
Litigation can be costly and time consuming. As a result, most personal injury claims in Nova Scotia are settled before trial. Most settlement negotiations are "without prejudice", meaning neither side is allowed to refer to the negotiations at trial. This allows either side to make concessions in the negotiations that they will not be held to at trial.
Formal offers to settle
However, there are times when you may want your negotiations to be "with prejudice". If the claim ends up going to trial, a "with prejudice" or formal offer to settle can have a major effect on the amount of costs awarded, even if the offer is rejected.
I recently posted about the effects that an offer to settle can have on legal costs.
As I discussed, making a strategic offer to settle well in advance of trial can result in the other side paying a substantial portion of your legal costs.
In a recent case: Visual Design Consultants Inc. v. Royal and Sun Alliance Insurance Company of Canada, Justice Wright of the Nova Scotia Supreme Court dealt with the amount of costs should be paid to the successful plaintiff.
Visual Design was a graphic design firm whose property was demolished by Hurricane Juan. Their insurance policy included coverage for “business interruption loss”. The two parties were unable to agree on the amount to compensate Visual Design for the hurricane’s interruption of business.
A six-day trial resulted in a judgement of $275,265.00 (inclusive of interest) being awarded to the Plaintiff. The parties were not able to agree on legal costs.
Counsel for the plaintiff requested costs of $70,766.00 as a contribution to the plaintiff's legal fees, while Counsel for the Defendant argued that $34,750.00 was appropriate.
The main issue decided by the Court was whether or not they should increase the standard tariff costs from $34,750.00.
Justice Wright applied the principles from Civil Procedure Rule 77 which specifically notes:
(d) A judge who fixes costs may increase or reduce tariff costs, for example, when a written offer of settlement, whether made formally or otherwise, is not accepted or where the conduct of a party affects the speed or expense of the proceeding.
Beating the offer
In deciding appropriate costs, the Court considered the effect of the Plaintiff’s formal offer to settle. Before the case was set for trial the Plaintiff made a formal offer to settle the matter for $235,000.00 inclusive of costs. This offer was never accepted by the defendant.
The court recognized that the Plaintiff received a more favourable judgment at trial.
Since the plaintiff did better than their pre-trial offer to settle, the Court ordered a 75% increase to the Tariff A costs (pursuant to Civil Procedure Rule 10.09). This comes to $60,812.50 plus disbursements for a total of $85,152.00.
The Court specifically noted that the increased cost award “reflects a substantial contribution to the plaintiff’s legal costs which is the overall objective of our costs regime.”
This case is simply another example of the strategic value of making a considered offer to settle.
As a personal injury lawyer I have seen many examples of the dangers of brain injuries in sports. In particular I have written about the potential lasting effects that brain injuries can have on child athletes. See for example:
Everybody knows that concussions are dangerous right? Everybody knows that kids who play hockey can suffer concussions right? Hockey Canada has even created a Concussion Awareness App for parents.
Hockey Canada provides insurance for all it's players to cover injuries they may suffer while playing.
While Hockey Canada is aware of the fact that your child may suffer a brain injury while playing hockey, the organization actually doesn't insure against concussions or brain injuries.
This is surprising considering the recent attention concussions and their consequences have been garnering from the media. According to an article in The Province, a Toronto study of children injured between 1990 and 2009 found that hockey accounted for approximately 45% of the brain injuries.
But if your child suffers a crippling brain injury while playing hockey, they will not be covered under their Hockey Canada insurance policy.
What is covered?
The Hockey Canada information guide to their insurance coverage “Safety Requires Teamwork” is available here:
The guide lists the following as injuries that are covered under the policy:
For Loss Of:
Life …………………………….. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 25,000
Entire sight of both eyes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
One hand and sight of one eye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 45,000
Speech and hearing in both ears .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 45,000
Sight of one eye. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 35,000
Speech or hearing in both ears . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000
For Loss Of, Or Loss Of Use Of:
Both hands or both feet or both legs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 45,000
One hand and one foot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 45,000
One armor one leg …. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000
One hand or one foot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000
Critical Incidence Stress Counselling:
Off-ice maximum per incident
Per insured: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,000
For all insureds: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10,000
On-ice maximum per incident: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 25,000
For Paralysis of:
All four limbs (Quadriplegia).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,000,000
Both Lower Limbs (Paraplegia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 1,000,000
One arm and leg on the same side of the body (Hemiplegia) . . . . . . $ 1,000,000
So why aren't brain injuries being covered? According to the Hockey Canada handbook, “...many times the desired coverage is simply unaffordable.”
I have many friends whose children play hockey. i would be willing to bet that most have no idea that their children are not insured for one of the most common injuries that children suffer while playing hockey.
I understand that the cost of insuring against concussion or other types of brain injuries may be expensive. But how much is too much to pay to cover our children’s brains?
If your child is playing a sport where there is almost a 50% chance they are going to suffer a brain injury, shouldn't parents be told about the lack of coverage and, at the very least, be given the opportunity to purchase optional coverage?
As a personal injury lawyer in Nova Scotia I commonly deal with clients who have suffered head injuries and concussions.
One thing that I have noticed is the symptoms and severity of head injuries, and how long it takes the patient to recover can vary greatly.
One of the challenges brain injury lawyers face is proving what the long term consequences will be for someone who has suffered a traumatic brain injury. I discuss this in more detail in my public legal education guide: Brain Matter: The Survivor's Guide to Brain Injury Claims.
Recovery time difficult to predict
Most people who suffer a concussion will recover within hours or days. But as we have all seen from the recent challenges faced by Sidney Crosby, concussion symptoms can last for months. A small percentage of patients who suffer concussions will develop post-concussion syndrome, where the symptoms last a year or more.
What that means in brain injury compensation claims, is that the injured plaintiff shouldn't settle their claim until all the symptoms of their concussion have resolved.
One of the most common questions people ask me when they first come to see me is: "How long will it take to settle my claim?"
The honest answer to that question is: "I don't know." To understand why read Personal Injury Claims in Nova Scotia: The “Golden Rule”
To date, there has never been an accurate tool or system for predicting the required recovery time for concussions.
Recovery time related to symptom severity
But new research designed to help treat brain injury victims may also end up helping plaintiffs who have filed a compensation claim as a result of having suffered a concussion.
This article highlights research in The Journal of Pediatrics from the Boston Children’s Hospital and the University of Pittsburgh Medical Center which attempts to correlate symptoms of concussion with recovery times.
Previous studies tried to correlate recovery time to the ages of patients or whether recovery time was related to having previously experienced a concussion.
Relating symptoms to recovery time
The Boston - Pittsburg study analyzed 182 patients who suffered from concussions. The patients ranked the severity of their symptoms on a scale from 0-6 with 0 meaning ‘not experiencing this symptom’ and 6 meaning the symptom was ‘severe’.
The researchers then compared the severity of the symptoms with the recovery times and found a correlation.
Long term problem
One of the researchers on the study, Dr. Meehan, says:
“Parents, physicians, and caregivers of athletes who suffer from a high-degree of symptoms after a sports-related concussion should start preparing for the possibility of a prolonged recovery.”
Patients who are suffering from a concussion should be careful about rushing back into strenuous activity. I have posted about the dangers of repeat concussions here: Concussions and Traumatic Brain Injuries in Sport
This useful website provides step-by-step guidelines for parents who are assisting their children in recovering from a concussion.
Hopefully, with a little more research, physicians will eventually be able to accurately predict the length of recovery times for concussions based on the severity of the symptoms experienced.
Research may help doctors...and lawyers
This will serve to assist physicians in properly coordinating the appropriate treatments for their patients. But it will also help brain injury lawyers, and their clients, because it will allow lawyer to estimate, in advance, how long a client will be disabled as a result of their concussion, which in turn should allow lawyers to more accurately predict, and prove, the quantum of damages the brain injured plaintiff may be entitled to receive.
If you suffered a concussion what are your legal options?
Concussions are a serious injury that can have long- term, potentially devastating, effects. With careful investigation an experienced brain injury lawyer can increase the odds of scoring a win for injured athletes.
I received a very kind note today from one of the teachers at Bicentennial JHS about the presentation we gave to the students a few weeks ago.
Talking with the students at BJHS
"Thank you again for your dynamic presentation to our students two weeks ago. You handled them really well and they took in the importance of what you had to say. Your presentation had an impact on me, too. I drive every day and am consciously trying to focus more on the road and let distractions wait!"
In the last 4 months I have been able to give this presentation to more than 1600 students at 14 schools throughout HRM. My goal for next year is to give this presentation to every high school and junior high school in HRM. I'm recruiting volunteers to give this presentation to schools in other parts of Nova Scotia and I have teamed up with Trial Lawyer Associations across the country to get the message out across the rest of Canada.
I have to say my volunteer work with EndDD.org has been a great experience. I have met lots of bright young students, had some very interesting discussions and I think I have learned as much as the kids have learned.
What more information? Read my article The Deadly Consequences of Distracted Driving (and what you can do to help)
I was going to write an article summarizing Nova Scotia’s proposed new Cyber-Safety Act. Legislation that the government has introduced to battle cyberbullying. However, my colleague David Fraser has done an excellent job noting the highlights of the Act on his Canadian Privacy Law Blog so I would commend his article to anyone interested in this issue. You can read it here.
Almost a year ago I wrote an article for the Atlantic Canada legal Examiner: More Needs To be Done in Nova Scotia to Protect Children Against Cyberbullying. The province has now tabled the new legislation and it does do more to help protect our children so I thought I would share my views of the proposed legislation.
One of the things I think is important about the proposed legislation, and something I support, is that the Cyber-Safety Act places some responsibility on the parents of children who are engaged in cyberbullying to monitor their children’s online activities and take steps to prevent cyberbullying.
Specifically, the legislation says that where a parent knows their child is engaged in online activity that may cause “...fear, intimidation, humiliation, distress, or other damage or harm” and fails to take the steps to prevent the activity, the parent is deemed to be engaged in cyberbullying.
Courts have power to address Cyber-Bullying
In the media debate about cyber-bullying, some commentators have suggested that current legislation isn't well suited to dealing with the issues created by social media while others have asserted that simply enforcing existing criminal laws should be sufficient.
The proposed legislation provides the Courts with authority to issue protection orders prohibiting the cyberbully from engaging in certain activities and communicating with the victim, as well as a broad discretionary provision that allows a judge to include:
“...any other provision that the justice considers necessary or advisable for the protection of the subject”.
This is a significant step forward.
However, if the victim of cyberbullying is a minor the victim’s parents must apply for the protection order. This, of course, raises a question of what happens if the parent of the victim does not want to get involved or is intimidated by the cyberbully or the cyberbully’s parents?
We will have to wait and see how this plays out in the future.
Victims have recourse through the courts
Another feature in the proposed legislation that is interesting is the creation of a new tort (civil claim) of cyberbullying.
Victims of cyberbullying now have the right to sue a cyberbully for damages for among other things, pain and suffering, aggravated damages and punitive damages caused by the cyberbully’s conduct.
If the cyberbully is a minor, this section also makes the minor’s parents jointly responsible for the bully’s actions.
In the past, it has typically been pointless to file a lawsuit against a teenage bully since most children do not have assets to respond to a lawsuit. The cost and expenses would far exceed the potential for any actual financial recovery.
However, by making the parents jointly responsible for the teenage bully’s actions the victim now has access to the parents’ assets and, potentially, the parents’ insurance coverage.
It will be interesting to see how fast insurance companies respond by specifically excluding coverage for bullying claims, like they did when homeowners insurance policies were forced to pay out claims for child sexual abuse.
Schools have more authority
Finally, the proposed legislation includes changes to the Education Act which will empower school Principals to take action over activities that take place outside of school that are “disruptive” to the learning climate of the school.
In other words, if a child is being bullied outside the school or during after-school hours, and it impacts on the victim’s performance in the school, Principals now potentially have a means of taking steps to address the conduct.
This is an important step forward because for the most part the schools have been unable (or unwilling?) to address conduct that takes place during after-school hours.
One must keep in mind that the section empowering the Principals to take action is permissive (“may take appropriate action”). So how effective this section of the proposed legislation will be depends entirely on the willingness of the Principal of each particular school to become engaged and to address the bullying conduct and its consequences.
Nova Scotia leading the way in protecting victims of bullying
Last year I was critical of Nova Scotia's lack luster response to the Cyber-bullying Taskforce. i can say now that I am impressed with the new legislation. there is more that i would have like to see in the legislation, but I think it is fair to say that with this proposed legislation, Nova Scotia has become a pioneer in this area of the law.
It is tragic that it has taken the lives of more than one Nova Scotian teenager to illustrate the need for the legislation.
I am pleased to say that I have been included in the 2013 Canadian Legal Lexpert Directory in the field of Personal injury Law.
What's important about the Lexpert directory is that you can't pay to be included. Selection is based upon nominations and voting by a lawyers peer group.
It's an honour to be included again. I want to say thanks to my clients who have allowed me to work on such challenging and interesting cases and thanks to my colleagues for their recognition and support.
I have been a personal injury lawyer in Nova Scotia for 23 years. So I have been involved in countless cases where the parties have been able to settle their claims and avoid the risk and expense of trial.
But offers to settle can also have significant legal impact even if a case doesn't settle before trial. That's why this article by Matt Maurer was of interest, since it provides a perfect illustration of the strategic use of offers to settle.
Formal Offer to Settle
During any litigation there are usually informal "without prejudice" discussions designed to try to resolve the case that takes place during the litigation process.
However most provinces court rules have specific rules that govern formal offers to settle.
What is an offer to settle? A simple example would be if two parties are involved in a lawsuit. Party A was a pedestrian who was hit by Party B’s car.
A sues B for $100 thousand to cover pain and suffering, loss of income and cost of medical treatment.
B defends the lawsuit, saying that A stepped on to the street before the light changed.
At any time before the trial begins either party can make a formal offer to settle. B might offer to pay A $50 thousand to conclude the proceedings. The offer may also contain other conditions, for example A may be required to keep the amount paid confidential.
Offers to settle are an alternative to the “winner take all” court route. Through settlement the parties can negotiate the outcome and achieve certainty without leaving the final result in the hands of a judge or jury.
What happens if settlement not accepted?
An offer to settle can cause favourable results even if it is not accepted. If a party obtains a “favourable judgment” meaning that, following the rejection of a settlement offer, the Court gives a result that finds the rejecting party in no better position than they would have been if they accepted the offer, the Court will award certain costs to the offering party.
To apply this to the example above: If Party A rejects Party B’s offer of $50 thousand and the matter goes to trial and the judge orders B to pay A $50 thousand (or less), then B will have some of his legal fees paid for by A.
According to the Civil Procedure Rules in Nova Scotia the following guidelines respecting costs apply:
A judge may award costs to a party who starts or who successfully defends a proceeding and obtains a favourable judgment, in an amount based on the tariffs increased by one of the following percentages:
(a) one hundred percent, if the offer is made less than twenty-five days after pleadings close;
(b) seventy-five percent, if the offer is made more than twenty-five days after pleadings close and before setting down;
(c) fifty percent, if the offer is made after setting down and before the finish date;
(d) twenty-five percent, if the offer is made after the finish date.
Essentially the rules try to allow the offering party to recover their legal fees they were forced to spend as a result of the other side not accepting a reasonable offer. They also serve to encourage parties to make reasonable offers instead of low-balling.
I have written about the importance of making a reasonable settlement offer: How Can You Win Your Trial But Still Lose? Cost Awards and Formal Offers to Settle
Back to Mr. Maurer's article, in the case he reviewed, the plaintiff was injured in a car accident. The plaintiff was successful at trial winning on both the issue of liability (who was at fault for the accident) and damages (being awarded compensation).
The defendant lost both the main action and the counterclaim and was ordered to pay $12,875 to the plaintiff.
However, back in 2011 the defendant offered to settle the lawsuit by paying $13,500 plus legal costs to the date of the offer. This offer was left open until the start of trial and was not accepted by the plaintiffs.
The result is that even though the plaintiffs were completely successful on liability in both their claim and in defending the counterclaim, they had to write a cheque for over $12,000 to the defendant.
Won the battle but lost the war
This case is a perfect example of how a plaintiff can win the battle (trial) but lose the war (adverse cost award). It is also teaches plaintiffs to carefully consider every offer to settle received in advance of trial.
Last month the Nova Scotia Supreme Court decided to strike a jury notice and prevent a jury trial.
The case (Anderson v. Cyr) involved a motor vehicle accident in Halifax. The defendants admitted that they were at fault for the accident but they denied the injuries of the plaintiff were caused by their negligence. The defendants wanted a jury trial while the plaintiff sought a judge alone trial.
In considering the plaintiff's motion to strike the jury notice, Justice Wright considered the complexities and technicalities involved in the case and concluded that it would be better heard by a judge sitting alone.
Wright J. reasoned that a judge sitting alone would be able to take the time to properly analyse the complicated medical records that would be at issue in the case. The motion to strike the jury notice was granted.
The Court recognized that:
“...there is a longstanding, traditional and substantive right of a party to a civil action in this province to a jury trial.”
However, Justice Wright's principle reason for striking the jury notice was that the substantive evidence in the case was highly technical and scientific, so that it would not likely be comprehensible to a reasonably informed juror.
The plaintiff had filed more than 50 reports from 26 different experts or health providers. One of the plaintiff’s witnesses, neurologist Dr. D. King, referred to the case as being: “one of the most complex and difficult ones he has ever dealt with in his long experience.”
Out of the ordinary
This was an interesting case because the "common wisdom" is that plaintiffs prefer jury trials whereas defendants do not.
In this case the defendant wanted a jury and plaintiff did not. Usually, in medical malpractice cases, the defendant doctors try to strike out (prevent) jury trials arguing that the medical evidence is too complicated for the average juror to understand. In fact on my Medical Malpractice Lawyer Blog, I posted about a Nova Scotia case where Justice MacAdam denied the plaintiff's request for a jury trial.
In that case, Anderson v. QEII Health Sciences Centre, the plaintiff suffered a brain injury and wished to proceed against the hospital and two physicians in front of a jury. The defendants moved to strike the jury notice. The Nova Scotia Court of Appeal upheld Justice MacAdam’s decision to strike the jury notice due to the complexities of the case.
Be careful what you ask for
I have mixed feelings about the Cyr decision. The danger with a decision like this is that it makes it harder for plaintiffs in complex cases (such as medical malpractice claims) to get jury trials.
The Courts have consistently recognized the right of parties to a jury trial. I think it is problematic for plaintiff's to be in the position of arguing that jurors are not sophisticated enough to understand complex medical evidence.
What do you think?