IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wall v. Horn Abbot Ltd. , 2005 NSSC 276
Date: 20051013
Docket: S.N. 101331
Registry: Sydney
Between:
David H. Wall
Plaintiff
v.
Horn Abbot Ltd., 679927 Ontario Limited (formerly Horn Abbot Productions Limited), Christopher Haney, Charles Scott Abbott, John Haney and Edward Martin Werner
Defendants
Judge: The Honourable Justice A. David MacAdam
Heard: September 6, 2005, in Halifax, Nova Scotia
Written Decision: October 13, 2005
Counsel: Kevin A. MacDonald, for the Plaintiff
John C. Cotter, for the Defendants, Horn Abbott Ltd. and
679927 Ontario Limited
William L. Ryan, Q.C., and Christa M. Hellstrom, for the Defendants, Christopher Haney, Charles Scott Abbott, John Haney and Edward Martin Werner
By the Court:
[1] The plaintiff, (herein “the plaintiff” or “Wall”), alleges the popular board game “Trivial Pursuit” was his concept and invention. He says he and a friend, Donald Campbell, (herein “Campbell”), who he says, participated in the development of the concept, shared their “game idea” with the defendant, Christopher Haney, (herein “Haney”). The plaintiff says he and Campbell were hitchhiking when Haney picked them up and they discussed the idea of a “trivia game”.
[2] The plaintiff says in 1982 he became aware the defendants were producing and marketing the game “Trivial Pursuit”. In 1994 he initiated this proceeding and, in due course, filed a Notice of Trial with a Jury. The defendants have applied to strike the jury.
[3] In their application to strike, the individual defendants represented by one counsel and the corporate defendant separately represented have submitted a number of reasons, all of which are suggested as sufficient to justify striking the jury in the circumstances of this case. Collectively they say the various difficulties in this case strongly support their position that all matters of both fact and law should be determined by the trial judge and the jury ought to be struck.
[4] On application by the defendants, Chief Justice Joseph P. Kennedy, by Order dated the 17th day of August, 1998, directed “... the issues of liability and damages be tried separately ...”.
Jurisdiction
[5] Jurisdiction to strike a “Jury Notice” is contained in s. 34(a)(ii) of the Judicature Act, R.S.N.S. 1989, c. 240. The Judicature Act is silent, however, as to the circumstances that would warrant the striking of the “Jury Notice”.
[6] The individual defendants, citing A.D. Smith Lumber Ltd. v. General Home Systems Ltd., 1986 Carswell NS 186 (T.D.) acknowledged that in Nova Scotia a “litigant’s presumptive right to a jury trial should not be lightly removed”. Counsel refers to the reasons of Justice Grant, at para. 13:
The courts of this province have very jealously guarded a litigant’s right to have the issues of fact and/or the damages tried or assessed by a jury. We are one of the few provinces in the country where this is a right that each citizen enjoys and not a privilege. I am personally most conscious of that right. However, as with any right, one must be on guard against its abuse. An abused right tends to make a mockery of that right and becomes counter-productive. As with most issues, each party has an equity in the result. Here we deal with the very trial forum which is so basic to our system.
[7] The individual defendants suggest six grounds for striking the “Jury”. The corporate defendants in agreeing and endorsing the submission of the individual defendants focus their submission on the complexity of the issues raised by the pleadings as well as by the length of the trial. The plaintiff says the role of the jury will be to decide whether or not they accept the evidence of the plaintiff and if they do, the legal consequences will be for the trial judge to assess and decide. The jury is not being asked to determine the legal, or mixed legal and factual issues raised by the defendants and, in particular, the corporate defendants.
The Grounds
[8] In his written submission counsel for the individual defendants summarizes the following grounds:
1. Procedurally and substantively, the trial will be too complex for a Jury.
2. The vast majority of issues to be decided are either issues of law, or of mixed law and fact, and are thus inappropriate for determination by a Jury.
3. The issues include matters of copyright and trademark law, which are inappropriate for determination by a Jury.
4. The presence of numerous claims in equity and equitable defences render this case inappropriate for determination by a Jury.
5. There is a high likelihood of statements, questions and rhetoric which will inflame the Jury and result in undue prejudice to the Defendants.
6. The Plaintiff himself has made public allegations which may prevent a Jury from being perceived as impartial.
[9] These grounds, as well as the issues raised by the corporate defendants, in the circumstances of this case as raised in the pleadings and in the pre-trial period leading up to the filing of the Notice of Trial, all have merit and are of concern.
1. Procedurally and substantively, the trial will be too complex for a Jury.
[10] Justice Bateman in Wall v. Horn Abbott Ltd., 2003 CarswellNS 415(C.A.), at para 2, noted:
The proceeding between these parties has a lengthy and litigious history. In the main action, which was commenced in November of 1994, the appellant, David Wall, claims that the concept for the game “Trivial Pursuit” was his and that he disclosed it to the respondent Christopher Haney in 1979. Mr. Wall seeks, inter alia, a declaration that he is the true title-holder of the game and an order for damages and an accounting. Fuller details of the background to this action can be found in the decision of this Court reported as Wall v. Horn Abbot Ltd., 176 N.S.R. (2d) 96, [1999] N.S.J. No. 124 (N.S. C.A.), one of several interlocutory decisions in this proceeding.
[11] Counsel for the both the individual and corporate defendants note the length of the trial suggested by plaintiff’s counsel, where, in correspondence with the court he suggested “.... the trial will be anywhere from 5 - 8 months”.
[12] The individual defendants on observing that 65 witnesses have been discovered, 30 - 45 witnesses have been proposed by the plaintiff and with the individual defendants intending to call approximately 30 - 40 , note the comments by Justice Tidman in MacIntyre v. Nova Scotia Power Corp., 1995 CarswellNS 155 (S.C.), at paras. 13 and 14:
As stated by Hallett J. in Leadbetter v. Brand (1979), 37 N.S.R. (2d) 660 (T.D.) at p. 663:
... the degree of complexity is the key issue in an application to strike on that ground.
The “degree of complexity,” however, relates not only to the expert evidence per se, but also encompasses the extent and type of other evidence to be offered and the complexity in relating and applying all of the evidence to the issues before the court.
[13] The individual defendants refer, in this context, to a number of Canadian and American decisions including Justice L’Heureux-Dube in R. v. Sherratt (1991), 63 C.C.C. (3d) 193 (S.C.C.) at p.204:
The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place ...
[14] Counsel correctly notes the inadequate compensation offered to those selected for jury service, adding judges are consequently inclined to excuse self-employed persons or others who cannot afford to lose their income. Counsel also references The Jury: A Handbook of Law and Procedure (2000) at page 2-41:
Personal hardship includes matters such as economic and educational circumstances that make it difficult for the juror to perform his or her duties.
To have on the jury a person unable to meet the financial needs of his family runs the risk of having on the jury a very unhappy person who may take out, as it were, his feelings on one side or the other. To require that person to remain on the jury would not ensure a competent and impartial jury.
R. v. Samson (No. 2) (1982), 36 O.R. (2d) 719, at 721 (Co. Ct.).
And at p. 3-11:
Personal hardship, i.e. economic (one-person business) or educational (student with final exams), may permit that person to be excused from jury duty.
[15] Counsel suggests it will, therefore, “... not be possible to empanel a jury which is representative of ‘the larger community’”.
[16] Indeed, I am satisfied, in the circumstance of a trial scheduled for a period of up-to eight months, the mere “ fact of length” warrants those, who wish to be excused, not being compelled to sit on a jury for such a lengthy period. The traditional discretion exercised in refusing exemption from jury service in the absence of “good and sufficient” reasons would not here apply. The length suggested for the trial is “good and sufficient reason” by itself.
[17] On the other hand, although jury panels may be “fair cross-sections of the community at large”, juries themselves are rarely so. The panel should, to the extent feasible and practical, represent a cross-section . The jury will, as is always the case, represent those chosen by lot, who are not challenged by either side, to sit. Simply to characterize the jury as “non representative” because, in effect, only those willing to serve will be available to be randomly chosen, is not a reason to deny a party its “presumptive right to a jury trial”.
[18] In so finding, I have considered, but not followed, the comments of Judge Sharp, cited by the individual defendants’ counsel, appearing in Re Boise Cascade Securities Litigation, 420 F. Supp. 99 (W/D. Wash. 1976) where at para. 4 he held:
It must be apparent that any jury chosen to hear this case will not be a fair cross section of the community at large because of the estimated trial time of four to six months. It would not be unreasonable to excuse prospective jurors from serving in this civil case if they believe that service for that period of time would impair their employment. At the outset, then, the availability of employed persons to serve on this jury is limited. This suggests that at least the appearance of fairness would be diminished, if not eliminated, when a lengthy civil action involving millions of dollars in potential damages in a commercial setting would be heard by jurors who have not had exposure to a contemporary commercial or business environment. This should not be taken to mean that a non-employed person is somehow less able to determine facts. Rather, a basic purpose of the jury, the determination of facts by impartial minds of diverse backgrounds, is defeated if a sizable and significant portion of the community must be excluded from service.
Pointing out the limits of a jury to hear an extended civil action does not answer the problems presented by a particular case unless it can be shown that trial to the Court would be superior.
In addition to the Court’s experience in presiding over other complicated cases involving commercial matters, the Court has available to it tools that are unwieldy in the possession of a jury. Among these tools are review of daily transcripts; admission of depositions into evidence instead of reading relevant portions aloud; review of selected portions of testimony from the reporter’s notes and flexibility in scheduling trial activities. In addition, the Court is able to study exhibits in depth and carry on colloquies with witnesses, expert and non-expert alike, in an orderly and systematic manner. Of course, this is in addition to the Court’s knowledge of the litigation resulting from its review of the record since the cases were filed.
In the light of the limitation of a jury to determine the facts in an informed manner and the ability of the Court to hear and review the evidence in an efficient and effective manner, the Court believes that it would be more capable of fairly deciding the facts.
[19] Counsel for the individual defendant refers to the comments of Justice Saunders in Crocker v. MacDonald (1992), 116 N.S.R. (2d) 184 at para. 23:
I am satisfied that in order to do justice between the parties the case should not be left with a jury. The matters in issue are of a complex and technical nature and would be better heard by a judge sitting alone who would then be free to reserve decision and take whatever time was necessary to analyze the detailed and complicated medical record.
[20] There will here be no complicated medical, scientific evidence, as in Mighton v. Maile, 1986 CarswellBC 34 (S.C.), or other technical evidence introduced by the parties. I am not persuaded length by itself justifies denying the “presumptive right of a jury” and that length will necessarily impact on the representation of the jury any more than in cases of trials of a much shorter anticipated length.
[21] There have been jury trials lasting months, although, perhaps very few, if any, lasting eight months. Apart from the legal and mixed legal and factual issues to be decided, which I will address later, the question is fundamentally one of deciding whether to believe the plaintiff’s assertions he conveyed to Haney his game concept and Haney’s denial that any such conversation, let alone any meeting with the plaintiff, ever occurred.
[22] My experience has been that juries are, in every way, qualified to make such a determination, and in light of the numbers involved in the jury decision making process, perhaps even more qualified than a judge in making such a decision.
[23] Other submissions on the risk of losing some jurors over such a lengthy period and the suggested “inconsistent” or “changing allegations” by the plaintiff are matters of concern and will have to be addressed in the event they occur during the trial. Of equal concern, and also raised by counsel, is the apparent history of procedural difficulties and delays by the plaintiff in preparing for and presenting pre-trial interlocutory proceedings.
[24] Plaintiff’s counsel is on notice that it his responsibility to have his witnesses available to testify and whether before a jury or a judge sitting alone, long or repeated delays will not be tolerated. Although I anticipate meeting with counsel to organize the presentation of evidence, including requiring counsel to indicate, at least approximately, the time period anticipated for each witness, it is, in the final analysis, the responsibility of counsel to have their witnesses available to testify.
[25] The individual defendants also refer to the likelihood that evidence taken on discovery will be tendered in circumstances where a witness, or witnesses, are not available to testify, for one reason or another. There is nothing new or unique about discovery or commissioned evidence being used, both in jury and non-jury trials. Counsel reference the observations of Chief Justice Campbell in Butler v. Charlottetown, [1944] 3 D.L.R. 350, (P.E.I.S.C.), cited with approval by Justice Nunn in Barrow v. Keating (No. 2), 1985 CarswellNS 71 (T.D.); at para. 11:
Neither our Judicature Act nor our Rules specify any cases in which the discretion to set aside jury trial should be exercised. The Court, however, has recognized a number of situations in which this discretion is properly exercisable: cases involving scientific investigation of a technical nature; cases requiring prolonged examination of documents or accounts; ... cases in which the major issues are questions of law, and the issues of fact are either negligible in importance, or so interwoven with the ssues (sic) of law as to make trial without a jury preferable.
[26] I am not satisfied the potential tendering of discovery or commission evidence in this case warrants dismissing the jury. No numbers have been suggested in respect to the witnesses whose discovery evidence will be offered as a consequence of the unavailability of the witness themselves. The right to a jury trial is too important to dismiss on the basis “a substantial part of the evidence” is by commission or discovery, in the absence of more specific information as to the numbers and length of witnesses by commission or discovery.
[27] Practical problems raised by the individual defendants’ counsel include the difficulty of counsel, after close to eight months of evidence, formulating and delivering addresses to the jury, formulating appropriate jury questions, and the Court preparing and delivering a charge to the jury. The first concern is a matter for counsel, and I have no doubt, that despite the period of time the evidentiary stage of the trial lasts they will be fully up to the task. The latter two, after receiving the input and suggestions of counsel, are for the presiding judge. Difficulties by the court in carrying out its responsibilities in a jury trial are not reasons to deny a party’s presumptive right to such a trial.
[28] Also, the difficulty in a jury conducting its deliberations and making its decisions, because of the length of the trial, is not a reason to deny a trial by jury. Counsel also raises issues of preoccupation and distractions by the challenge of dealing with family and financial matters as “undermining their ability to perform their function” as well as the risk that after eight months there will be insufficient jurors able to continue, due to “death, illness or other forms of hardship and inconvenience”.
[29] These are all valid concerns, and indeed, as the trial continues circumstances may develop that make the continuation of the trial by jury either impractical or impossible.
[30] Plaintiff’s counsel, in oral argument, indirectly addressed this issue by stating he would have no objection, in such an eventuality, to the trial then continuing with the presiding judge deciding all issues of both fact and law. The defendants , not unexpectedly, did not address this hypothetical question. Nevertheless, as presiding Judge I am aware of the possibility, and perhaps in light of all the potential problems and difficulties , the likely possibility the jury will at some point have to be dismissed. In the event of such an occurrence, I further recognize the resulting possibility the trial may continue without any jury. This issue will be further addressed, in the event the jury is dismissed prior to completing its role and responsibilities at this trial.
2. The vast majority of issues to be decided are either issues of law, or of mixed law and fact, and are thus inappropriate for determination by a Jury.
3. The issues include matters of copyright and trademark law, which are inappropriate for determination by a Jury.
4. The presence of numerous claims in equity and equitable defences render this case inappropriate for determination by a Jury.
[31] Each of these issues relates to the ability of the jury model to deal with complicated issues of law or mixed fact and law.
[32] Counsel for the corporate defendants, in his written submission, listed a number of claims the plaintiff has suggested result from his alleged encounter with Haney:
1. copyright infringement;
2. breach of fiduciary duty;
3. conversion;
4. constructive trust;
5. breach of contract;
6. breach of confidence;
7. equitable fraud;
8. fraudulently and intentionally deceiving and misleading the public;
9. theft;
10. fraud;
11. subsistence and ownership of copyrights;
12. ownership of trade-marks;
13. ownership of other intellectual property;
14. other declaratory relief regarding ownership.
[33] Counsel then adds that in addition to the factual issues raised by the defendants, namely that the claim is false, fictitious and without merit, the statements of defence raise the following:
1. the applicability and effect of the presumption contained in section 53(1) of the Copyright Act:
2. the applicability of the limitation periods under s. 41 of the Copyright Act;
3. the applicability and effect of the presumption contained section 54(3) of the Trade-marks Act;
4. whether the proper law to be applied is Nova Scotia or Ontario law;
5. the applicability of the limitation periods under s. 451(1)(g) of the Ontario Limitations Act or s. 2(1)(e) of the Nova Scotia Limitation of Actions Act; and
6. the doctrine of latches.
[34] Counsel for the individual defendants, in this regard, refers to s. 34 of the Judicature Act, supra, and references Roby Estate v. Buley, 1989 CarswellNS 399 (T.D.) at para 23:
It is clear from a reading of s. 31 of the Judicature Act that the issues to be tried by a jury are issues of fact only.
[35] Also noted by counsel is the observation in Begg (c.o.b. A.R.B. Recycling v. Halifax (County), [1997] N.S.J. No. 137 (C.A.). The court held questions of law to be “inappropriate for consideration by a Jury”.
[36] In respect to all these issues, the plaintiff in his brief stated:
... With respect, this case is as simple as who you believe. If the jury accepts Mr. Wall’s evidence then all the issues about copyright, equitable fraud, etc. will be a determination for the trial justice (as it always is). ...
[37] Counsel for the corporate defendants stated the jury will not be able to deal with all factual matters that will have to be determined in respect to the multiple complicated legal issues raised by the pleadings. Counsel says there will, consequently, be two triers of fact, the jury for the questions formulated and the judge for the further questions that will, no doubt, have to be decided following the jury’s determination of the more general questions of fact.
[38] Counsel’s observation is undoubtedly well founded. As I indicated during the course of oral argument, there always remains the final discretion in the court on whether to accept the jury’s decisions. In rare circumstances courts have rejected such findings. The possible, even likely, requirement for the judge to make some factual findings, in addition to those made by the jury, in deciding the merits of the various legal claims is no reason to remove the fundamental factual decisions from the jury. The jury will not be asked to make findings of law or of mixed law and fact. The plaintiff’s brief, and plaintiff’s counsel’s representations are clear in that regard. In this respect, the comments of Justice Burchell in Lintaman v. Goodman, 1983 CarswellNS 100 (T.D.) at para. 5 are pertinent:
... 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 I do not see how such a 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.
[39] Counsel for the individual defendants, after referencing the foregoing, then continues:
Barrow v. Keating (No. 2), supra, involved an action where the plaintiff claimed to be the beneficial owner of certain shares in a cable enterprise. Justice Nunn found that any issues of pure fact were negligible in contrast to the whole of the action. Justice Nunn based his assessment of what was a negligible issue, not on the importance of the issue to the case, but on how big a part the issue played in the defendant’s case.
In A.D. Smith, supra, the only issue to be determined was whether or not particular goods were on consignment. The acts of the parties were not in question and an assessment of the documentation was not required. Justice Grant, in striking the Jury Notice, found that separating the questions of fact from the purely legal issues could not be done in any practical or useful way and that they were very clearly interwoven with the issues of law.
Similarly, in the instant case, while there are admittedly issues of fact and credibility to be determined, the causes of actions, which this case is predicated upon, are highly technical legal concepts which would require determination by a Judge alone.
[40] The plaintiff says the only issue the jury will be considering is “what do they believe” with the legal consequences of their finding for determination by the trial judge. I am, therefore satisfied, in this circumstance, there are substantial factual findings for a jury to make and they can be “usefully and practically” separated from the legal and mixed legal and factual findings that may subsequently have to be made by the trial judge.
5. There is a high likelihood of statements, questions and rhetoric which will inflame the Jury and result in undue prejudice to the Defendants.
[41] Counsel for the individual defendants raises the:
... high likelihood that during the upcoming trial there will be statements, questions and rhetoric which would inflame a Jury and result in undue prejudice to the Defendants, greater than the prejudicial effect of such statements being made before a Judge sitting alone.
[42] Counsel’s brief then continues:
“A trial Judge has the inherent power to prevent either party being prejudiced by references which might lead to an improper verdict ...”: O’Neil v. Pacific Great Eastern Railway (1971), 24 D.L.R. (3d) 628 (B.C.C.A.), para. 10. Depending upon the circumstances, inflammatory remarks could result in this already lengthy trial being delayed; or mid-trial discharge of the jury, whose time and effort up to that point will have been for naught; or even a mistrial, if the prejudicial effect of the inflammatory remarks cannot be cured. A mistrial is always an unfortunate event; in the instant case, having taken 12 years to reach trial, a mistrial would be disastrous.
[43] Counsel notes a number of occasions when the plaintiff’s counsel referenced the respective financial positions of the plaintiff and the individual defendants. In his submission, he refers to:
On Trial: Advocacy Skills, Law and Practice (2nd ed. 2004), Geoffrey D.E. Adair, Q.C., at p. 470:
Comments that in effect invite the Jury to deliver a verdict based in part on the defendant’s ability to pay are improper.
[44] After noting a number of occasions when plaintiff’s counsel has referred to the individual defendants’ apparent wealth, counsel’s brief continues:
These repeated references to the Defendants’ alleged wealth are completely irrelevant, highly prejudicial, and entirely self-serving ...
[45] With the individual defendant counsel’s comments, I am in complete agreement. Plaintiff’s counsel is on notice that statements as to the wealth, or lack thereof, on the part of any of the parties, by himself, his client or his witnesses will place at jeopardy this proceeding continuing as a jury trial.
6. The Plaintiff himself has made public allegations which may prevent a Jury from being perceived as impartial.
[46] Counsel’s brief, on this issue, begins:
The Plaintiff has taken the position that, in the very community from which he asks that Jury be drawn, there are numerous well-known people who have financially benefited from - and were complicit in -- the actionable conduct alleged in his pleadings.
[47] Counsel says the allegations by the plaintiff, placed on the public record, in that they are contained in his Amended Statement of Claim of July 12, 1995, are serious allegations, charging what the plaintiff says he believes are probably more than 20 “well-known Cape Breton business persons” with complicity in the wrongs allegedly perpetrated by the defendant. The brief of the individual defendants, on this issue, concludes:
... by placing these allegations on the public record, and allowing them to remain there, the Plaintiff has created potential for the following:
• In the community from which a Jury would be drawn, the many persons who could be described as “well-known Cape Breton Business persons” may reasonably be perceived, by members of the public, as having a possible interest in the outcome of the trial.
• If any such person were to become a Juror, it could cause members of the public to perceive the Jury as lacking the essential characteristic of impartiality.
Alternatively, if the Court attempts to preserve the perception of impartiality by disqualifying potential Jurors who could be considered “well-known Cape Breton business persons”, the Jury’s other essential quality of representativeness - already in peril-- would be further eroded.
Accordingly, by publicly making and maintaining - but never pursuing - these serious yet broadly worded allegations against Cape Breton business persons, the Plaintiff has added to the lengthy list of cogent reasons to strike his Notice of Trial With a Jury and direct that the trier of fact be a Judge sitting alone.
[48] With counsel’s conclusion, I do not agree. I see no reason, at least at present, whereby “well-known Cape Breton business persons” should not be included on the panel and be available to be selected for the jury. The parties may decide to challenge any such persons; that will be their decision. Absent such a challenge, or specific evidence or circumstance making it inappropriate for a particular individual to sit on the jury in this case, there is no reason advanced, to date, to exclude any such individual.
Conclusion
[49] The application to strike the jury is dismissed. In view of the reasonableness of many of the concerns raised by the defendants, as to the appropriateness of the jury in these circumstances, costs will be in the cause. Costs are, therefore, set at $5,000.00 and will be payable to the successful party, whether it be the plaintiff, or the collective defendants, following the trial.
MacAdam, J.