Civil jury trials in medical malpractice cases are a recurring source of procedural litigation. The defence in a complex malpractice case will typically prefer a trial before a judge alone, on the basis that the medical evidence is too complex for a jury to assess. The plaintiff will often prefer a jury, on the basis that lay decision-makers can be more responsive to the human story behind the medicine and produce damages awards that more fully reflect the consequences of the harm. The party not wanting the jury moves to strike the jury notice. The motion is governed by a discretionary framework that has evolved meaningfully in recent years.
Lal v Anderson, 2023 BCSC 2038, is a useful illustration. A motions master of the Supreme Court of British Columbia dismissed an eve-of-trial defence motion to strike the jury notice in a complex birth injury case involving 31 expert reports, an anticipated 35 witnesses (27 of them experts), and a damages range from under $1 million to over $16 million. The reasoning is grounded in what the master described as “the modern view as to the sophistication of juries and the advancements in trial technology.”
The case is a British Columbia decision, but the substantive considerations it engages — jury sophistication, trial technology, effective expert management, and counsel preparation — are common to the analogous Ontario framework under section 108 of the Courts of Justice Act. Lal is a useful reference for jury motions in Ontario malpractice litigation.
The substantive case
The underlying lawsuit alleges that the plaintiff sustained a brain injury during his birth at St. Paul’s Hospital in Vancouver on November 10, 1997. The plaintiff now has cerebral palsy, seizures, delayed growth, and hypoxic-ischemic encephalopathy (HIE), with severe effects on his speech, cognition, gait, and balance. The defendants are the hospital and a number of physicians and nurses who provided care before, during, and after the birth.
At the time of birth, the plaintiff’s mother was 20 years old. She had gestational diabetes that required insulin from 37 weeks. At 40 weeks she presented to hospital, was admitted, and after some time delivered spontaneously following the administration of oxytocin to augment labour. An electronic fetal monitor (EFM) was applied during labour. Interpretation of the EFM tracing is central to the case, alongside the broader clinical management.
The expert evidence is substantial. Thirty-one expert reports had been delivered by the time of the motion. Further reply reports were anticipated. The experts hold conflicting opinions on a range of issues: liability, causation, EFM interpretation, the cause of the brain injuries, and the standards applicable to the various clinical decisions. On damages, the experts differ on the level and cost of future care required for the plaintiff, with the damages range spanning more than a fifteenfold variation between the lowest and highest estimates.
The trial was expected to involve as many as 35 witnesses, 27 of them experts.
The BC framework for jury notice motions
In British Columbia, civil jury trials are governed by the Supreme Court Civil Rules. A party may serve a jury notice, and the other party may move to strike the notice. The principal precedent is Sidhu v Wong (and its progeny), which identifies the factors a master considers in ruling on the motion. The factors include:
- The likely length of the trial
- The complexity of the legal issues
- The volume and complexity of the expert evidence
- The number of parties and witnesses
- The capacity of a jury to fairly assess the issues
- The availability of tools to assist the jury (technology, glossaries, chronologies)
- The interests of justice generally
The motion is decided on a balance of these factors. The general direction of recent BC authority has been toward retaining juries in complex cases where the parties and counsel can effectively manage the presentation of evidence.
The Ontario analogue
In Ontario, civil jury trials are governed by section 108 of the Courts of Justice Act. Section 108(1) provides that a party may require trial by jury by delivering a jury notice. Section 108(2) provides that the court may, on motion, order that issues of fact be tried without a jury where those issues require prolonged examination of documents or scientific or technical evidence that cannot conveniently be made with a jury.
The leading Ontario case is Cowles v Balac, 2006 CanLII 34916 (ONCA), which articulated the test for striking a jury notice in a complex case. The trial judge has broad discretion. The court considers whether the trial will be of significant duration and complexity, whether the issues are intrinsically complex, whether the evidence (particularly expert evidence) will be lengthy, and whether the jury can fairly assess the issues. In Kempf v Nguyen, 2015 ONCA 114, the Court of Appeal confirmed that the test is whether justice would be better served by a non-jury trial and that the discretion is broad.
The Ontario and BC frameworks differ in their procedural specifics but engage substantially similar substantive considerations. The “modern view as to the sophistication of juries and the advancements in trial technology” articulated in Lal is increasingly the prevailing view in Ontario as well. Motions to strike jury notices in complex medical malpractice cases have produced mixed results in Ontario, with the trend in recent years leaning toward retaining juries where counsel can demonstrate the capacity to present the evidence effectively.
The decision
Master Robertson dismissed the defence motion. The key passage of the reasoning:
Having regard to the various factors, including those set out in Sidhu*, while the number and volume of the experts being called upon is considerable, with some conflict in their opinions, I do agree with the plaintiff that the experts and counsel will be able to efficiency [sic] simplify matters to enable the jury to retain a sufficient understanding throughout the trial and deliberation through the use of the technology that is now available and through the use of simple tools such as medical glossaries and chronologies that will be available to it, having regard to the limited number of parties involved.*
I make this finding having regard to the modern view as to the sophistication of juries and the advancements in trial technology, which will enable the evidence to be presented in real time with the aid of computer images tracking the evidence such as the EFM, in a linear or sequential way that will make sense for the jury.
Several elements of the reasoning are doctrinally significant.
Jury sophistication. The master grounded the decision in the modern view that juries are sophisticated enough to assess complex evidence when it is properly presented. This is a meaningful shift from the older view that complexity automatically defeated jury trials. The trend in both BC and Ontario is toward this modern view.
Trial technology. The master specifically referenced the use of real-time computer images to track the evidence, including the EFM tracing. Modern trials in complex cases routinely use display technology to make the evidence accessible. This is now part of the operating assumption rather than an exception.
Tools for the jury. The master noted that simple tools (medical glossaries, chronologies) would assist the jury throughout the trial and during deliberation. These are familiar features of complex civil trials. The willingness to deploy them is part of the modern approach.
Limited number of parties. Despite the volume of expert evidence, the number of parties was limited. This is doctrinally significant. A case with many parties (overlapping defendants, third-party claims, multiple plaintiffs) presents different challenges to a jury than a case with a small number of well-defined parties even where the expert evidence is voluminous.
Effective counsel and experts. The master assumed (consistent with the evidence on the motion) that counsel and experts would be able to simplify matters effectively. This places weight on counsel preparation and expert communication. A jury trial in a complex case requires both.
The doctrinal lessons
The case stands for several propositions.
The modern view favours retaining juries in complex cases. The trajectory of recent BC and Ontario authority is toward retaining juries where counsel can demonstrate effective management of the evidence. The older view (complexity automatically defeats a jury) is increasingly displaced.
Trial technology is part of the operating assumption. Modern trials in complex cases use display technology, glossaries, chronologies, and other tools to make the evidence accessible. The party arguing that the case cannot be tried before a jury needs to engage with this reality, not pretend it does not exist.
Counsel preparation matters. The willingness of counsel to simplify the evidence and the willingness of experts to communicate clearly are part of the analysis. A party seeking to retain a jury needs to demonstrate that the case can be tried effectively before one.
The number of parties is a factor distinct from the volume of evidence. Even a case with voluminous expert evidence can be tried before a jury if the number of parties is manageable. A case with many overlapping parties presents different challenges that may favour judge-alone.
Eve-of-trial timing has limited weight. The defence in Lal brought the motion on the eve of trial. The timing did not produce a particular advantage on the motion itself; the analysis was on the substantive factors rather than the procedural posture.
The strategic context
Jury vs judge alone is a strategic decision that affects multiple aspects of malpractice litigation.
Trial length. Jury trials are typically longer than judge-alone trials. The plaintiff has to introduce evidence at a pace and in a form suitable for a jury, jury instructions add time, and the deliberation period itself extends the calendar.
Costs. Jury trials are more expensive. Jury fees, longer trial time, and additional preparation all contribute. The cost differential is meaningful in cases where the damages are large enough to justify trial but not unlimited.
Advocacy style. Jury advocacy is more narrative-driven and visual. Counsel who has prepared a case for a judge-alone trial cannot simply transfer the same approach to a jury. Successful jury work in malpractice cases requires substantial dedicated preparation.
Damages calibration. The empirical question of whether juries award higher or lower damages than judges in catastrophic injury cases is contested. The data is mixed. What is more reliable is that juries tend to be less constrained by judicial precedent on quantum and can produce outcomes that depart from established ranges in either direction.
Defence preferences. The CMPA (Canadian Medical Protective Association), which defends most physicians in malpractice litigation in Canada, has historically expressed a general preference for judge-alone trials. This is not a hard rule, and CMPA-instructed counsel will sometimes maintain or seek juries depending on the case.
Plaintiff preferences. Plaintiff counsel preferences vary. Some prefer juries for the reasons noted above. Others prefer judges who are familiar with the complex medical questions and can be expected to reason through them in a written decision. The choice often depends on the specific defendants, the medicine, and the human story.
The procedural case-comment cluster
Lal v Anderson adds to the procedural case-comment cluster on this site. The cluster now contains:
The six cases together cover the major procedural and evidentiary frameworks operating in medical malpractice litigation: privilege, records access, expert evidence, summary judgment, medical examinations, and jury motions. The cluster is genuinely useful for counsel screening claims and managing the litigation framework.
The cross-province case-comment cluster
Lal is the fourth British Columbia case in the cross-province sub-cluster.
The cross-province material is included not to displace Ontario law but to illustrate the application of nationally consistent legal frameworks (or substantively similar provincial frameworks) in different settings. In Lal, the Ontario doctrinal bridge is to section 108 of the Courts of Justice Act and the Cowles v Balac line of authority.
Why this case matters
For plaintiffs and their counsel in complex malpractice cases. Defence motions to strike jury notices are a routine feature of complex malpractice litigation. Lal is a useful reference for resisting these motions. The relevant arguments are: (1) the modern view favours retaining juries in complex cases; (2) trial technology is part of the operating assumption, not an exception; (3) counsel preparation can effectively simplify the evidence; and (4) the number of parties (often limited in medical malpractice cases) is a distinct factor from the volume of expert evidence.
For defendants and their counsel. Motions to strike juries are not automatic in complex cases. The defence needs to demonstrate why this case cannot be effectively tried before a jury, not just that the evidence is voluminous. The party seeking to strike the jury faces a meaningful burden on the modern authorities.
For lawyers screening complex malpractice claims. The jury question is part of the strategic analysis at intake. Birth injury cases in particular often involve voluminous expert evidence (EFM interpretation, HIE causation, future care planning) that can support either side of the jury motion analysis. The strategic decision about whether to serve a jury notice — and to defend it if challenged — is part of the working analysis.
For more on birth injury malpractice litigation in Ontario, see Birth Injury Lawyer in Toronto. For the broader framework of malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: October 5, 2023
Jurisdiction: Supreme Court of British Columbia (Master Robertson)
Citation: Lal v Anderson, 2023 BCSC 2038 (CanLII)
Lal v Anderson: A Jury Notice Upheld in a Complex Birth Injury Case
A defence motion to strike a jury notice was dismissed in a complex BC birth injury case involving 31 expert reports and 35 anticipated witnesses.
Civil jury trials in medical malpractice cases are a recurring source of procedural litigation. The defence in a complex malpractice case will typically prefer a trial before a judge alone, on the basis that the medical evidence is too complex for a jury to assess. The plaintiff will often prefer a jury, on the basis that lay decision-makers can be more responsive to the human story behind the medicine and produce damages awards that more fully reflect the consequences of the harm. The party not wanting the jury moves to strike the jury notice. The motion is governed by a discretionary framework that has evolved meaningfully in recent years.
Lal v Anderson, 2023 BCSC 2038, is a useful illustration. A motions master of the Supreme Court of British Columbia dismissed an eve-of-trial defence motion to strike the jury notice in a complex birth injury case involving 31 expert reports, an anticipated 35 witnesses (27 of them experts), and a damages range from under $1 million to over $16 million. The reasoning is grounded in what the master described as “the modern view as to the sophistication of juries and the advancements in trial technology.”
The case is a British Columbia decision, but the substantive considerations it engages — jury sophistication, trial technology, effective expert management, and counsel preparation — are common to the analogous Ontario framework under section 108 of the Courts of Justice Act. Lal is a useful reference for jury motions in Ontario malpractice litigation.
The substantive case
The underlying lawsuit alleges that the plaintiff sustained a brain injury during his birth at St. Paul’s Hospital in Vancouver on November 10, 1997. The plaintiff now has cerebral palsy, seizures, delayed growth, and hypoxic-ischemic encephalopathy (HIE), with severe effects on his speech, cognition, gait, and balance. The defendants are the hospital and a number of physicians and nurses who provided care before, during, and after the birth.
At the time of birth, the plaintiff’s mother was 20 years old. She had gestational diabetes that required insulin from 37 weeks. At 40 weeks she presented to hospital, was admitted, and after some time delivered spontaneously following the administration of oxytocin to augment labour. An electronic fetal monitor (EFM) was applied during labour. Interpretation of the EFM tracing is central to the case, alongside the broader clinical management.
The expert evidence is substantial. Thirty-one expert reports had been delivered by the time of the motion. Further reply reports were anticipated. The experts hold conflicting opinions on a range of issues: liability, causation, EFM interpretation, the cause of the brain injuries, and the standards applicable to the various clinical decisions. On damages, the experts differ on the level and cost of future care required for the plaintiff, with the damages range spanning more than a fifteenfold variation between the lowest and highest estimates.
The trial was expected to involve as many as 35 witnesses, 27 of them experts.
The BC framework for jury notice motions
In British Columbia, civil jury trials are governed by the Supreme Court Civil Rules. A party may serve a jury notice, and the other party may move to strike the notice. The principal precedent is Sidhu v Wong (and its progeny), which identifies the factors a master considers in ruling on the motion. The factors include:
The motion is decided on a balance of these factors. The general direction of recent BC authority has been toward retaining juries in complex cases where the parties and counsel can effectively manage the presentation of evidence.
The Ontario analogue
In Ontario, civil jury trials are governed by section 108 of the Courts of Justice Act. Section 108(1) provides that a party may require trial by jury by delivering a jury notice. Section 108(2) provides that the court may, on motion, order that issues of fact be tried without a jury where those issues require prolonged examination of documents or scientific or technical evidence that cannot conveniently be made with a jury.
The leading Ontario case is Cowles v Balac, 2006 CanLII 34916 (ONCA), which articulated the test for striking a jury notice in a complex case. The trial judge has broad discretion. The court considers whether the trial will be of significant duration and complexity, whether the issues are intrinsically complex, whether the evidence (particularly expert evidence) will be lengthy, and whether the jury can fairly assess the issues. In Kempf v Nguyen, 2015 ONCA 114, the Court of Appeal confirmed that the test is whether justice would be better served by a non-jury trial and that the discretion is broad.
The Ontario and BC frameworks differ in their procedural specifics but engage substantially similar substantive considerations. The “modern view as to the sophistication of juries and the advancements in trial technology” articulated in Lal is increasingly the prevailing view in Ontario as well. Motions to strike jury notices in complex medical malpractice cases have produced mixed results in Ontario, with the trend in recent years leaning toward retaining juries where counsel can demonstrate the capacity to present the evidence effectively.
The decision
Master Robertson dismissed the defence motion. The key passage of the reasoning:
Several elements of the reasoning are doctrinally significant.
Jury sophistication. The master grounded the decision in the modern view that juries are sophisticated enough to assess complex evidence when it is properly presented. This is a meaningful shift from the older view that complexity automatically defeated jury trials. The trend in both BC and Ontario is toward this modern view.
Trial technology. The master specifically referenced the use of real-time computer images to track the evidence, including the EFM tracing. Modern trials in complex cases routinely use display technology to make the evidence accessible. This is now part of the operating assumption rather than an exception.
Tools for the jury. The master noted that simple tools (medical glossaries, chronologies) would assist the jury throughout the trial and during deliberation. These are familiar features of complex civil trials. The willingness to deploy them is part of the modern approach.
Limited number of parties. Despite the volume of expert evidence, the number of parties was limited. This is doctrinally significant. A case with many parties (overlapping defendants, third-party claims, multiple plaintiffs) presents different challenges to a jury than a case with a small number of well-defined parties even where the expert evidence is voluminous.
Effective counsel and experts. The master assumed (consistent with the evidence on the motion) that counsel and experts would be able to simplify matters effectively. This places weight on counsel preparation and expert communication. A jury trial in a complex case requires both.
The doctrinal lessons
The case stands for several propositions.
The modern view favours retaining juries in complex cases. The trajectory of recent BC and Ontario authority is toward retaining juries where counsel can demonstrate effective management of the evidence. The older view (complexity automatically defeats a jury) is increasingly displaced.
Trial technology is part of the operating assumption. Modern trials in complex cases use display technology, glossaries, chronologies, and other tools to make the evidence accessible. The party arguing that the case cannot be tried before a jury needs to engage with this reality, not pretend it does not exist.
Counsel preparation matters. The willingness of counsel to simplify the evidence and the willingness of experts to communicate clearly are part of the analysis. A party seeking to retain a jury needs to demonstrate that the case can be tried effectively before one.
The number of parties is a factor distinct from the volume of evidence. Even a case with voluminous expert evidence can be tried before a jury if the number of parties is manageable. A case with many overlapping parties presents different challenges that may favour judge-alone.
Eve-of-trial timing has limited weight. The defence in Lal brought the motion on the eve of trial. The timing did not produce a particular advantage on the motion itself; the analysis was on the substantive factors rather than the procedural posture.
The strategic context
Jury vs judge alone is a strategic decision that affects multiple aspects of malpractice litigation.
Trial length. Jury trials are typically longer than judge-alone trials. The plaintiff has to introduce evidence at a pace and in a form suitable for a jury, jury instructions add time, and the deliberation period itself extends the calendar.
Costs. Jury trials are more expensive. Jury fees, longer trial time, and additional preparation all contribute. The cost differential is meaningful in cases where the damages are large enough to justify trial but not unlimited.
Advocacy style. Jury advocacy is more narrative-driven and visual. Counsel who has prepared a case for a judge-alone trial cannot simply transfer the same approach to a jury. Successful jury work in malpractice cases requires substantial dedicated preparation.
Damages calibration. The empirical question of whether juries award higher or lower damages than judges in catastrophic injury cases is contested. The data is mixed. What is more reliable is that juries tend to be less constrained by judicial precedent on quantum and can produce outcomes that depart from established ranges in either direction.
Defence preferences. The CMPA (Canadian Medical Protective Association), which defends most physicians in malpractice litigation in Canada, has historically expressed a general preference for judge-alone trials. This is not a hard rule, and CMPA-instructed counsel will sometimes maintain or seek juries depending on the case.
Plaintiff preferences. Plaintiff counsel preferences vary. Some prefer juries for the reasons noted above. Others prefer judges who are familiar with the complex medical questions and can be expected to reason through them in a written decision. The choice often depends on the specific defendants, the medicine, and the human story.
The procedural case-comment cluster
Lal v Anderson adds to the procedural case-comment cluster on this site. The cluster now contains:
The six cases together cover the major procedural and evidentiary frameworks operating in medical malpractice litigation: privilege, records access, expert evidence, summary judgment, medical examinations, and jury motions. The cluster is genuinely useful for counsel screening claims and managing the litigation framework.
The cross-province case-comment cluster
Lal is the fourth British Columbia case in the cross-province sub-cluster.
The cross-province material is included not to displace Ontario law but to illustrate the application of nationally consistent legal frameworks (or substantively similar provincial frameworks) in different settings. In Lal, the Ontario doctrinal bridge is to section 108 of the Courts of Justice Act and the Cowles v Balac line of authority.
Why this case matters
For plaintiffs and their counsel in complex malpractice cases. Defence motions to strike jury notices are a routine feature of complex malpractice litigation. Lal is a useful reference for resisting these motions. The relevant arguments are: (1) the modern view favours retaining juries in complex cases; (2) trial technology is part of the operating assumption, not an exception; (3) counsel preparation can effectively simplify the evidence; and (4) the number of parties (often limited in medical malpractice cases) is a distinct factor from the volume of expert evidence.
For defendants and their counsel. Motions to strike juries are not automatic in complex cases. The defence needs to demonstrate why this case cannot be effectively tried before a jury, not just that the evidence is voluminous. The party seeking to strike the jury faces a meaningful burden on the modern authorities.
For lawyers screening complex malpractice claims. The jury question is part of the strategic analysis at intake. Birth injury cases in particular often involve voluminous expert evidence (EFM interpretation, HIE causation, future care planning) that can support either side of the jury motion analysis. The strategic decision about whether to serve a jury notice — and to defend it if challenged — is part of the working analysis.
For more on birth injury malpractice litigation in Ontario, see Birth Injury Lawyer in Toronto. For the broader framework of malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: October 5, 2023
Jurisdiction: Supreme Court of British Columbia (Master Robertson)
Citation: Lal v Anderson, 2023 BCSC 2038 (CanLII)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
Gilmore v Love: A Mismanaged Labour and a Preventable Birth Injury
A BC trial judge found an obstetrician 85% liable and obstetrical nurses 15% liable for skull fractures and brain damage caused during a difficult caesarean section.
A.G. v Rivera: Preterm Delivery Counselling and the Patient Who Declined
A birth injury claim alleging failure to discuss antenatal steroids and resuscitation in a 25-week preterm risk situation was dismissed. The discussion was attempted; the patient declined to engage.
Hanson-Tasker v Ewart: The Limits of the Snell Adverse Inference
A pre-term newborn with kernicterus lost her causation case despite a finding that her family physicians had breached the standard of care. The Snell adverse inference did not save the claim.