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Juries (Civil) - Basics

. Moffitt v. TD Canada Trust

In Moffitt v. TD Canada Trust (Ont CA, 2023) the Court of Appeal canvasses basics of a civil jury trial:
Civil jury trials

[30] A civil jury trial is one procedural tool offered by the Rules’ extensive menu of final-adjudication-on-the-merits procedural tools. Section 108(1) of the CJA provides that a party to an action in the Superior Court of Justice “may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.” However, the option of a civil jury trial is a limited one. A jury trial is not available in all civil actions. For example, a proceeding against the Crown or an officer or employee of the Crown must be tried without a jury: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 20. As well, CJA s. 108(2) precludes jury trials in a large number of actions that seek specified relief [3] and in simplified proceedings under r. 76.

[31] Where an action qualifies for a civil jury trial, party must elect a jury trial by filing a formal notice: CJA, s. 108(1)[4]. A court may set aside that election at the request of the other party, as CJA s. 108(3) provides that “[o]n motion, a court may order that issues of fact be tried or damages assessed, or both, without a jury.” The test to set aside a jury notice is well-established. As put by this court in Cowles v. Balac, (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37, leave to appeal refused, [2006] S.C.C.A. No. 496:
A party moving to strike a 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 which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.
[32] The limited and qualified “right” to a civil jury trial in Ontario was described by this court in Louis v. Poitras, 2021 ONCA 49, 456 D.L.R. (4th) 164, at para. 17:
It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because 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. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial.
[33] As this court went on to observe in Louis v. Poitras, at para. 24, “the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.”
. 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.
. Cheung v. Samra

In Cheung v. Samra (Ont CA, 2022) the Court of Appeal canvassed some basics of a rare civil jury trial:
(4) Analysis

[43] The Courts of Justice Act provides that a judge may require a jury to either give a general verdict or to answer specific questions.

[44] Subsections 108(4), (5) and (6) of the Courts of Justice Act provide as follows:
(4) Where a proceeding is tried with a jury, the jury shall be composed of six persons […]

(5) Where a proceeding is tried with a jury,

(a) the judge may require the jury to give a general verdict or to answer specific questions […]

(b) judgment may be entered in accordance with the verdict or the answers to the questions.

(6) It is sufficient if five of the jurors agree on the verdict or the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer.
[45] The grounds upon which a trial judge may refuse to grant judgment in accordance with a jury verdict are limited both by the Rules of Civil Procedure and by the jurisprudence of this court.

[46] Rule 52.08 provides,
52.08 (1) Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. [Emphasis added.]
[47] Here the essential questions are whether the jury made “no finding on which judgment can be granted” or whether it answered “some but not all of the questions directed to it […] so that judgment cannot be granted on its findings.”

[48] A trial judge can disregard the answers which form the jury verdict only if:
1. There is no evidence to support the jury finding; or

2. The jury gives an answer to a question which cannot in law provide a foundation for a judgment: McLean v. Knox, 2013 ONCA 357, 36 C.P.C. (7th) 1, at para. 20.
[49] The analysis must begin with the presumption that juries understand and properly apply the instructions provided by trial judges and that the jury’s answers are the result of a proper consideration of the evidence and the issues and an adherence to the legal instructions provided in the trial judge’s charge: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 30 C.R. (5th) 346 (Ont. C.A.). It would be wrong to assume that juries might disregard the law and instructions; “this line of thinking could seriously undermine the entire jury system”: Corbett, at para. 39.

[50] In Stilwell, this court described the stringent test for appellate review of jury verdicts:
1. “[T]he standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict”: at para. 33.

2. “Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers […] It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them”: at para. 36, citing Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at p. 1069, per Laskin C.J.C. (dissenting).

3. “[A] jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances […] Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction”: at para. 34.
[51] Where a jury is asked to provide particulars of a finding of causation, it is sufficient if five of the six jurors agree to the “bottom line”: Surujdeo v. Melady, 2017 ONCA 41, at paras. 114-118.

....

[54] Whether a jury verdict is perverse or unreasonable is a matter for appellate courts, not for the trial judge: Lang v. McKenna (2000), 2000 CanLII 16814 (ON CA), 135 O.A.C. 304, at para. 24; Jarbeau v. McLean, 2017 ONCA 115, 410 D.L.R. (4th) 246, at para. 81.

[55] The trial judge could have refused to give judgment if she concluded that there was no evidence to support the finding of the jury, or if the jury gave an answer which cannot in law provide a foundation for judgment: Teskey v. TTC (2003), 3 C.P.C. (6th) 181, at para. 6.

....

[61] As noted in Salter v. Hirst, 2010 ONSC 3440, 97 C.P.C. (6th) 353, at para. 15, aff’d 2011 ONCA 609, 107 O.R. (3d) 236, “[N]othing could jangle more profoundly against the accustomed role of a trial judge sitting with a jury than to replace their finding with one’s own view of the facts or set aside their verdict where there was some evidence to support it.”
. 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].


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