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Juries II

. Louis v. Poitras

In Louis v. Poitras (Ont CA, 2020) the Court of Appeal considers the right to a jury trial in the time of COVID:
[40] Second, the serious question raised by the Plaintiffs also arguably engages a matter of public importance that this court should consider in the interest of justice. The statutory right to a civil jury trial is a qualified right, subject to the power of the court to order an action to proceed without a jury: Belton (C.A.), at para. 26; Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171. 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. 37-38.

[41] That “rather broad discretion” currently is exercised by judges in an environment influenced by two key factors, one external to the court system and one internal to it.

[42] The external factor is the reality of COVID-19’s profound effect on the means by which Ontario courts can continue to offer their services to the public.

[43] The internal factor stems from the Supreme Court of Canada’s description of our court system as one marked by a mind-set of “complacency” and a willingness “to tolerate excessive delays”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 4 and 29. In Jordan and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court called for a “culture shift” (Hryniak, at para. 2) and a “change of direction” (Jordan, at para. 5). While the long duration of the pandemic has many actors in the civil justice system desiring to “return back to normal”, one must not forget that the “good old ways” caused unacceptable delays and are the very ways that the Supreme Court in Hyrniak and Jordan has charged the court system to discard.

[44] As well, as Myers J. observed (in a pre-pandemic context) in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 32:
The court must react to the realities facing civil litigants and the civil justice system. It is not news to anyone that delays and the high cost of civil proceedings impair access to justice. The Supreme Court has declared that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.” Systemic issues like the insufficient judicial compliment, resource deployment away from civil cases as a result of R. v. Jordan … and other pervasive funding concerns affect the realities facing civil litigants. The court’s ability to provide long civil jury trials in an expeditious, affordable, proportionate way may be suffering as a result. Where this is so, the systemic realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term. [Emphasis added.]
[45] To those realities must now be added the significant impact that the COVID-19 pandemic has had on the operations of Ontario’s courts.

[46] When looked at in that context, the serious question for appeal advanced by the Plaintiffs raises a matter of public importance, which I would articulate in two related ways:
(i) In the age of Hryniak, Jordan, and now COVID-19, should intermediate appellate courts – such as the Divisional Court and the Court of Appeal – support or restrain efforts by motion judges, exercising their discretion regarding the timing and mode of determining a civil proceeding, to find solutions that achieve the fundamental mandate of r. 1.04(1), namely the “most expeditious and least expensive determination of every civil proceeding on the merits”?

(ii) Or, put more colloquially: Are intermediate appellate courts agents of change in shifting away from the justice system’s culture of complacency toward delay, or is their task simply to protect the status quo?
[47] These are not merely questions of public importance raised by the Plaintiffs’ motion for leave to appeal; they are existential questions about the future viability of Ontario’s civil justice system.

[48] Accordingly, I am satisfied that the serious question raised by the Plaintiffs meets the threshold test on a stay motion set by RJR-MacDonald, applied in light of the Sault Dock principles.
. Coban v. Declare

In Coban v. Declare (Div Ct, 2020) the Divisional Court considered a leave to appeal application of a motion to strike a jury notice:
[1] Leave to appeal is refused. As acknowledged in the Reply Factum, the broad issues raised by motions to strike jury notices in the context of the Covid-19 pandemic have recently been considered by this Court (see: Louis v. Poitras, 2020 ONSC 6907 (CanLII)). This case does not present any reason to revisit those issues so soon after.

[2] That case made clear that motions to strike juries should consider not only the immediate impact on the parties involved (“the overarching concern has been to provide justice to the parties”) but also concerns for the impact on the broader administration of justice. In the interim the situation has changed. On November 21, 2020, a further Notice to the Profession was issued by the Office of the Chief Justice. In view of the public health situation, effective Monday, November 23, 2020, no new jury selection was to commence in any court location except in those in a Green Zone as defined by the Ontario Government as of the date of the Notice (November 21, 2020). Ottawa was not, and is not, a Green Zone. The Notice advised that this restriction would remain in effect until at least January 4, 2021 with an update to be issued on December 29, 2020. Thus, the uncertainty with respect to when any jury trial may be available is increased. This is more the case for civil juries. Unlike criminal cases, there is no constitutional imperative that they be provided (see: Charter of Rights and Freedoms, s. 11). Generally, the Court has recognized the greater importance in providing jury trials in criminal cases.
. El Ghafari v Treehuba

In El Ghafari v Treehuba (Ont CA, 2015) a civil jury apportioned liability 90% to 10% between parties. On a motion to set aside this allocation the Court of Appeal stated the standard for so doing as follows:
[1] The appellant asks the Court to set aside the jury verdict apportioning liability 90% to the appellant and 10% to the respondent. The test for setting aside a jury verdict is very rigorous; see F.C. (Guardian of) v. 511825 Ontario Inc., 171 O.A.C. 119, 2003 CanLII 9990 (ON CA) at para. 44, where Cronk J.A. states:
The verdict of a jury in a civil case will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the appellant court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.
. Woods v. Jackiewicz

In Woods v. Jackiewicz (Ont CA, 2020) the Court of Appeal comments of the high appellate deference to jury verdicts:
[22] The test for appellate interference with a jury verdict is high. As noted in Parent v. Janandee Management Inc., 2017 ONCA 922, at para. 26:
A high degree of deference is given by courts to jury verdicts. 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….
[23] Hourigan J.A. described the high degree of deference owed to jury verdicts in Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at para. 36:
The appropriate degree of judicial deference to be applied in the consideration of jury answers and verdicts was described by Laskin C.J.C. in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:
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. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone.
. Louis v. Poitras

In Louis v. Poitras (Div Ct, 2020) the Divisional Court allowed an appeal (with leave to re-bring it later) of an order striking a jury notice that the motion judge granted on the basis that the COVID crisis would cause undue delay:
Juries in Civil Cases

[4] In the common law world, civil juries have long been part of legal culture. In Ontario, reliance on civil juries reaches well-back into our history.[1] In more modern times the right to proceed before a civil jury has been referred to as both “fundamental”[2] and “substantive”[3]. The import of these words is not hard to see. Discerning the impact of these descriptors, that is the legal consequence, is more problematic. We venture to say that in the present day, in Canada, the description of law as “fundamental” is most frequently attached to rights established or confirmed by the Charter of Rights and Freedoms.[4] The right to a civil jury is not founded in, or protected by, the constitution. On the other side, the right to a civil jury has been described as a “prima facie procedural entitlement”[5], a depiction we see as being a little too callow. As “substantive”, the right to a civil jury is a “right of great importance”[6] but that does not explain the manner or circumstances in which the right will be implemented. The right to a civil jury is best described as a statutory right. At present it finds its provenance in the Courts of Justice Act, s.108(1)[7]:
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.
[5] The right to have an action tried by a jury may be important, but it is not absolute. The Courts of Justice Act prohibits certain causes of action from being dealt with by a jury[8] and provides the Court with a general discretion to order that matters other than those listed proceed without a jury:
On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.[9]
[6] The Rules of Civil Procedure[10] implement the directives found in the legislation. Rules 47.01 and 47.02 note:
47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,

(a) a statute requires a trial without a jury; or

(b) the jury notice was not delivered in accordance with rule 47.01. R.R.O. 1990, Reg. 194, r. 47.02 (1).

(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.

(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.
Motions to Strike Jury Notices

[7] Motions to strike juries are not uncommon. The general parameters that have governed these motions are found in Cowles v. Balac.[11] In that case, the plaintiffs were seriously injured. They were attacked by tigers at the drive-through safari zoo operated by the defendant. At the outset of the trial, a motion was brought to strike the jury notice. The trial judge considered the submissions that were made and three days later rendered a decision and granted the motion. The trial proceeded over 26 days. The defendant was found to be liable either because as the keeper of wild and vicious animals strict liability applied or, in the alternative, it was negligent. The defendant appealed. Among other grounds, the defendant argued that the trial judge erred in striking the jury notice.

[8] What is the test to be met in considering an application to strike a jury notice or discharge a jury? In Cowles v. Balac the Court of Appeal set it out:
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.[12]

[Emphasis added]
[9] The application of the test is dictated by a consideration of the perspective and interest of the parties:
While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.[13]

[Emphasis added]
[10] In Cowles v. Balac the expressed concern was the complexity of the issues to be determined and whether a judge, because of his or her legal training and experience, would be better able to render justice because the case was complex. Concern for the complexity of a case was referred to by the Court of Appeal as the most common reason courts dispense with juries in civil cases.[14] Whatever the rationale: complexity, lapse of memory through the passage of time[15]or the disproportionate cost of a jury trial[16], the over-arching concern is to provide justice to the parties. Will justice be better served by dismissing or retaining the jury?[17]

[11] It is the parties and the prejudice they may suffer that has been the central concern of motions to strike a jury notice or discharge a jury. Of course, any asserted prejudice or concern for just treatment would have to be substantiated:
It is well settled law that the right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons.[18]
[12] The counterpoint to showing just cause and cogent reasons is that the expression of the concern not be without a demonstrable foundation:
I think it manifest from the authorities that before an appellate court may properly intervene it must show that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.[19]
....

The Administration of Justice as a Concern

[25] This is not the end of the matter. The impact of the Covid­-19 pandemic requires the Court to look beyond the narrow terms of the test set in Cowles v. Balac. It is not just the interest of the parties that is of concern but also the impact on the court and the administration of justice. The potential for this extension was recognized before the appearance of Covid-19. In McLeod v. Canadian Road Management Company[31] the judge considered a motion to strike jury notices. The proposition was that the issues were too complex for a jury. The plaintiff had a complicated medical and psychological history. Whether and the degree to which these issues arose from the motor vehicle accident that was the cause of the action, the plaintiff’s pre-existing conditions or his mother’s psychological issues[32] was the foundation for the concern. Ultimately, the motion judge determined that, while the matter was complex, there was no determinative indication that a jury would be unable to appreciate the issue and respond appropriately. The motion was dismissed without prejudice to a similar motion being brought with more definitive evidence concerning complexity.

[26] The motion judge went further. He noted the test in Cowles v. Balac[33] and then went on to observe that in the context of the case he was dealing with, complexity was not the sole issue driving the analysis of the interests of justice and that “[l]ike all procedural rights, [the right to a jury] yields to the overriding interests of justice it is intended to serve”.[34]

[27] The idea that the consideration of whether to strike a jury notice might extend beyond the immediate interest of the parties was repeated in Girao v. Cunningham.[35] This case was heard by the Court of Appeal in 2020 but with respect to a trial that had taken place in 2017. The decision of the Court of Appeal makes no reference to Covid-19 or the pandemic. The plaintiff (the Appellant) had moved to strike the jury. The trial judge had refused. The Court of Appeal found that the trial judge erred by failing to revisit that decision.[36] In doing so the Court observed:
While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.[37]
[28] In that case practicality was a concern because the plaintiff was self-represented and took part, in the trial, with the assistance of an interpreter. As understood by the Court of Appeal, the self-represented status of a litigant was a factor that might unduly complicate or lengthen the trial that could have led the trial judge to conclude that prudence suggested the jury be discharged.[38]

[29] The concerns are not just about the parties in the particular case. They extend to systemic issues that left unaddressed can strain the administration of justice:
The court must react to the realities facing civil litigants and the civil justice system. It is not news to anyone that delays and the high cost of civil proceedings impair access to justice. The Supreme Court has declared that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.” Systemic issues like the insufficient judicial compliment, resource deployment away from civil cases as a result of R. v. Jordan, 2016 SCC 27 (CanLII), and other pervasive funding concerns affect the realities facing civil litigants. The court’s ability to provide long civil jury trials in an expeditious, affordable, proportionate way may be suffering as a result. Where this is so, the systemic realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term.[39]
[30] These cases set the groundwork. They acknowledge that the implications for the administration of justice, as a whole, of striking a jury notice or discharging a jury could lead to a broadening of the considerations set out in Cowles v. Balac.

[31] In Belton v. Spencer[40] this Court considered a motion to strike a jury notice in the context of the Covid-19 pandemic. In setting out the basis for the motion, the judge was careful to address its presence and its impact on the operations of the Court. The grounds for the motion were that because of Covid-19 there were serious concerns that, if the action was to proceed before a jury, the trial would be delayed by one year or possibly for as long as 18 months. The defendant, in opposing the motion, submitted that the extent of the delay of the trial caused by Covid-19 was, at the time, unknown. The judge recognized that the concerns raised by the presence of the virus went beyond its impact on the parties. The judge recognized the broader concern for delay as affecting the administration of justice. She went back to the well-known aphorism which she credited to Lord Denning: “Justice delayed is justice denied”.[41] This refers to more than justice for the parties engaged in the action. She noted:
Remedying delay in Canadian civil justice has repeatedly been identified by the Supreme Court of Canada as an issue of paramount importance. [42]
[32] And followed this observation by quoting that higher court:
Unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society. At some point, it is a foe that has plagued the life of almost all courts and administrative tribunals. It’s a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians.[43]
[33] She went on and referred to the now seminal case of Hryniak v.Mauldin[44] and its demand for a “necessary culture shift”[45] in Canadian civil justice. She quoted from that decision:
Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.[46]
In other words:
[A] fair and just process … is illusory unless it is also accessible – proportionate, timely and affordable.[47]


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