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Juries

. Gilbert v South

In Gilbert v South (Ont CA, 2015) the Court of Appeal discussed the ethical limits of counsel when making a closing address in a civil jury trial, and the remedial options of judges where the address is improper:
(c) Discussion

[17] In three reasonably recent decisions, our court has discussed the role of the advocate in adversarial proceedings, the limits on an advocate’s closing address to a civil jury, the remedies available to a trial judge when a closing address is improper, and the scope of appellate review: see Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722; Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767; Fiddler v. Chiavetti, 2010 ONCA 210 (CanLII), 317 D.L.R. (4th) 385.

[18] The advocate’s role for one party in a civil trial is necessarily partisan. Because it is partisan, the advocate has the right, even in some cases the duty, to make an impassioned and zealous address on behalf of a client. The commentary to Rule 5.1-1 of our Law Society’s Rules of Professional Conduct puts it this way: “In adversarial proceedings, the lawyer has the duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

[19] Because the advocate has this right, even this obligation, courts have understandably given the advocate wide latitude in a closing jury address. But our courts have also recognized that even this wide latitude given to a closing address has limits. One limit is that it is not proper – except perhaps in the rarest of cases – for counsel to impugn the integrity of opposing counsel or even of opposing counsel’s client: see Landolfi, at paras. 79-80, 91.

[20] Thus, I think the trial judge was right to be concerned about the comments of Gilbert’s counsel set out above. They were improper. They exceeded the limits of zealous advocacy. They raised the risk the jury would focus on the character of York Fire’s counsel and his client instead of what the jury should focus on: the evidence.

[21] Faced with an improper closing jury address warranting intervention, a trial judge has a choice of three remedies: caution the jury by giving a correcting instruction, strike the jury and conduct the trial alone, or declare a mistrial.

[22] A mistrial is a remedy of last resort: R v Toutissani, 2007 ONCA 773 (CanLII), at para. 9. It results in extra costs and delays the resolution of the parties’ dispute. It should only be granted where, as the trial judge correctly said, a correcting instruction to the jury cannot cure the prejudice caused by counsel’s improper comments. And because the decision not to declare a mistrial is discretionary, it “attracts considerable deference from this court”: see Landolfi, at para. 99.

[23] The trial judge’s refusal to grant a mistrial was entirely reasonable. To intervene, allow the appeal, and order a new trial, we would have to be satisfied his refusal caused a substantial wrong or miscarriage of justice: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Here, the trial judge’s refusal did not cause any miscarriage of justice. The improper comments of Gilbert’s counsel were few and were not so serious or so prejudicial that they could not be addressed by an appropriate correcting instruction to the jury. Thus, appellate intervention in the exercise of the trial judge’s discretion would be entirely unjustified. I would not give effect to this ground of appeal.

II. Alternatively, did the trial judge err by failing to give a proper correcting instruction?

[24] Instead of ordering a mistrial, the trial judge gave a correcting instruction to the jury. York Fire submits that it did not go far enough because it did not condemn counsel’s comments. Instead, according to York Fire, the trial judge tacitly approved of those comments. I do not accept York Fire’s submission. The trial judge’s correcting instruction was fair. No condemnation of counsel’s comments was needed.

[25] In Landolfi, at paras. 105-6, Cronk J.A. discussed when in the proceedings a trial judge should give the correcting instruction and what it should say. A trial judge should give a correcting instruction right after the closing jury addresses or early in the charge to the jury. The trial judge in this case met that requirement. He gave his correcting instruction right at the beginning of his charge to the jury.

[26] Ideally, a correcting instruction should have four components. It should:

• be clear and unambiguous;

• point out to the jury the offending comments;

• explain that these comments are improper and why they are so; and

• instruct the jury to disregard the comments and base its findings and decision solely on the evidence.
. R. v. Pannu

In the criminal appeal, R. v. Pannu (Ont CA, 2015), Watt JA expounds extensively and usefully on the basics of jury trials [paras 57-91].

. Kempf v Nguyen

In Kempf v Nguyen (Ont CA, 2015) the Court of Appeal canvassed principles applicable to striking a jury notice in a civil trial:
[41] The right to a trial by jury in civil actions is set out in s. 108(1) of the Courts of Justice Act:
In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.
[42] Section 108(2) contains a list of claims for relief that cannot be tried by a jury. Declaratory relief is one such claim.

[43] In the majority reasons in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 496, O’Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice and appellate review of such a decision, as paraphrased here:
1. The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See also King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, at p. 533: “the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons”.

2. A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).

3. Appellate review of a trial court’s exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See also Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at p. 69, leave to appeal to S.C.C. refused, [1985] S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge’s exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).

4. The reviewing court should not interfere with the trial judge’s exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge’s discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See also Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 625.

5. The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49).

6. While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).

7. It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See also Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.), at para. 70.

8. In some cases, it is preferable to take a “wait and see” approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns 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 (at para. 70).

9. While in many cases the “wait and see” approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).

10. If the reviewing court concludes that the trial judge erred in striking the jury notice, the merits of the action must be considered (at para. 92). As stated in King, at p. 533, a new trial is not warranted “if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge.”
[44] While several of these principles speak to the considerable discretion that is vested in the trial judge when deciding whether to strike a jury notice and the limited appellate review of the exercise of that discretion, cases such as Hunt and Brady v. Lamb (2005), 2005 CanLII 46734 (ON CA), 78 O.R. (3d) 680 (C.A.), illustrate that this court will order a new trial when it has found that a trial judge has exercised that discretion arbitrarily or based on improper principles so as to enforce the statutory right to a jury trial.
. R v Kum

In R v Kum (Ont CA, 2015) the Court of Appeal case the court commented as follows on the rule of secrecy of jury proceedings:
The secrecy of the jury’s deliberations

[39] In R. v. Pan; R. v. Sawyer, 2001 SCC 42 (CanLII), [2001] 2 S.C.R. 344, Arbour J. discussed in detail the rules regarding jury secrecy. Under the common law rule of jury secrecy, also known as Lord Mansfield’s rule, evidence of what occurred in the jury room among the jurors is not admissible in subsequent proceedings: Pan, at para. 54. The issue often arises when the jury’s verdict is sought to be impeached, as in the Pan and Sawyer cases.

[40] In Pan, Arbour J. also discussed the policy reasons behind the jury secrecy rules, which, she pointed out, have evolved over time. The common law jury secrecy rule, together with the prohibition on disclosing information relating to the jury’s proceedings under s. 649 of the Criminal Code, promotes candour and “free and frank debate among jurors, protecting jurors from harassment, and preserving public confidence in the administration of justice”: Pan, at para. 89. As she stated at para. 50: “While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred.”

[41] However, there is an exception to Lord Mansfield’s rule. Evidence that the jury was exposed to some extrinsic information or influence from outside the proceeding is admissible: Pan, at para. 55. But even if jurors are allowed to testify about whether they were exposed to any extrinsic information, the court should not admit evidence from the jurors as to what influence that information had on their deliberations: Pan, at para. 59.

[42] Justice Arbour concluded her discussion by restating a modern version of Lord Mansfield’s common law jury secrecy rule as follows at paras. 77 and 78:
[77] In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.

[78] This modern formulation of the rule, which reflects the approach of the majority of the Court of Appeal, best ensures that the sanctity of the jury’s deliberations is preserved by promoting in equal measure the secrecy and confidentiality indispensable to the deliberation process and the exposure of serious matters casting doubt on the integrity of the verdict.
. Zambo v 848875 Ontario Inc. (Gary’s No Frills)

In Zambo v. 848875 Ontario Inc. (Gary’s No Frills) (Ont CA, 2019) the Court of Appeal states that the test for setting aside a jury verdict is very high:
[2] We disagree. The test for setting aside a jury’s verdict is extremely high. It requires that the court conclude that the verdict is “so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”: Gutbir v. University Health Network, 2012 ONCA 66 (CanLII) at para. 5.
. Girao v. Cunningham

The case of Girao v. Cunningham (Ont CA, 2020) is a remarkable ruling. That it had to be written this way is an embarrassment to the legal profession. It should be read by any litigation lawyer, especially those practicing MVA litigation, as a salutory lesson in dealing with self-representing parties. On it's face it was an appeal of an MVA tort jury award, but the Court of Appeal took the oppourtunity to review numerous (sadly, necessary) basics of civil litigation. Dealing at trial with a self-represented plaintiff who relied on a Spanish interpreter throughout, the Court of Appeal used defence behaviour as object lessons in why these legal principles are important and in the end, took the unusual step of ordering a new trial from scratch [paras 7, 173-174].

I'll go through the legal principles one by one as per topic, here striking the jury:
[157] The principles governing the discharge of a jury and appellate review were set out in Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, by Epstein J.A. for the majority, at para. 43, and by Laskin J.A. who dissented but not on this point, at para. 118. Both relied on Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, leave to appeal refused, [2006] S.C.C.A. No. 496.

[158] The respondent relies on the premise underlying these decisions: “[T]he moving party has a substantial onus because trial by jury is a fundamental right”: McDonald-Wright v. O’Herlihy, 2007 ONCA 89, 220 O.A.C. 110, at para. 13, per Gillese J.A., who cited Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.). The respondent also relies on McDonald-Wright to support her position that the trial judge did not err in declining to strike the jury

[159] To paraphrase several principles invoked by Epstein J.A. in Kempf, at para. 43 (5) and (7): Complexity of a case is a proper consideration in determining whether a jury notice should be struck, and that relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Trial judges are presumed to know the law and to be able to explain it to a jury.

[160] In Kempf, at para. 119, Laskin J.A. said: “The question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury?” This standard has been cited in numerous cases: see e.g. Cowles, at para. 37; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314, at para. 6. In Graham, Doherty J.A. continued at para. 6: “In many situations that discretion may, with equal propriety, be exercised for or against discharging the jury.”

[161] As Laskin J.A. further pointed out in Kempf, at para. 119, in assessing whether a trial judge exercised discretion appropriately about whether to retain or discharge a jury, “context matters. Although the right to a trial by jury in a civil case is an important right, it is far from absolute.”

[162] One contextual issue clearly at play with respect to Ms. Girao is the degree to which, if at all, a trial judge should consider a party’s self-represented status, among other factors, when determining whether to strike a jury. I addressed this issue in the immediately preceding section of these reasons.

[163] The cases in which the principles have been expressed have tended to be family law cases in which there is no jury. But there are cases in which a party’s self-represented status was a factor considered by the trial judge in determining whether to strike a jury notice. In Desjardins v. Arcadian Restaurants Ltd. (2005), 2005 CanLII 27388 (ON SC), 77 O.R. (3d) 27 (Ont. S.C.), the defendant filed a jury notice but then later brought a motion to strike the jury several months before trial. The self-represented plaintiff opposed the motion. The motion judge initially dismissed the motion to strike without prejudice to the defendant on the belief that “with proper instructions to the plaintiff and to the jury, [he] would be able to manage the trial in a manner that would be perceived by the jury to be fair to both sides”: at para. 12. However, he left it open to the defendant to renew the motion at trial. When the defendant renewed the motion closer to trial, the motion judge granted the motion to strike the jury notice, noting that the self-represented status of the plaintiff has made the case “unduly complicated” so that the trial would be prolonged as a result: at para. 11(i) and (ii). He explained: “I have now come to the conclusion that it will virtually be impossible to provide the assistance I anticipate the plaintiff will require at trial in a manner that ensures that the defendant will not be placed at a significant disadvantage in the eyes of the jury”: at para. 13. See also Belende c. Greenspoon, 2006 Carswell 9135.
. 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.


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