Rarotonga, 2010

simonshields@isthatlegal.ca

Online Lawyer (Ontario)

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / SUPERIOR COURT / APPEALS / JUDICIAL REVIEW

home / about / Little Friends Lefkada (Greece) / testimonials / Conditions of Use

Talk to the
Online Lawyer

Jury Trials (Civil)

. Belton v. Spencer

In Belton v. Spencer (Ont CA, 2020) a single judge the Court of Appeal commented as follows on the 'right' to civil jury trials:
[26] The substantive right to a civil jury trial, upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.

[27] As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, “it is not absolute and must sometimes yield to the practicality.”

[28] Given the breadth of the discretion afforded to the judge considering a motion to strike out jury notices, it is not surprising that the jurisprudence provides that appellate review of the exercise of the discretion to dispense with a jury is limited: Cowles, at para. 40. To justify appellate intervention, it must be shown that the motion judge’s “discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93, at pp. 69-70.

[29] Accordingly, to succeed on her appeal the appellant must show that in granting the Order the motion judge acted upon a wrong or inapplicable principle of law or exercised her discretion arbitrarily or capriciously.[30] However, the only allegation of an error of law apparent in the appellant’s notice of appeal is that the motion judge did not adopt a “wait and see” approach to the motion to strike, thereby contradicting three decades of established authority in Ontario in which a motion judge defers to the trial judge the issue of whether to strike out a jury notice. In Cowles, this court described the “wait and see” approach at para. 70:
Over the years, courts have said that, in some cases, when confronted with a motion to strike a jury notice or discharge a jury, it is preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted. Experience has shown that in many instances the anticipated complexities of a case or other concerns giving rise to a motion to dismiss a jury do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so.
[31] Significantly, the court in Cowles went on to state that taking a “wait and see” approach is not a rule of law: at para. 71. The court observed that the Courts of Justice Act and the Rules of Civil Procedure “contemplate that a judge may strike a jury notice even before a trial has begun and that a trial judge may dismiss a jury before beginning to hear the evidence”: at para. 71.

[32] The motion judge identified the principles in Cowles and how subsequent courts have interpreted them: at paras. 15 and 16. She examined how those principles should be applied in light of calls by the Supreme Court of Canada to remedy the delays endemic to the Canadian civil justice system and implement a “necessary culture shift” in the civil system: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 140; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.


Website © Simon Shields 2005-2020