For purposes of this note, however, only the striking of the jury will be considered.
Put briefly, trial by jury is a substantive right that will not be set aside by the Court unless barred by statute or in the interests of justice. If, however, the trial Court concludes that the complexity of the matter, or the nature of the evidence, is such that a jury will not apprehend it properly then striking the jury is proper. Such striking will not be second guessed by the appeal Court. If the decision to strike is reasonable it will be upheld on appeal.
The Court writes:
"(1) Striking the jury
[19] The appellant contends that the trial judge erred, near the end of the first of the two blended trials and after 12 days of testimony, by striking the jury. The starting point for the appellant's submission is the proposition that a trial by jury in a civil case is a substantive right that should not be taken away without just cause or cogent reasons: see King v. Colonial Homes Ltd., [1956] S.C.R. 528.
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[20] The leading case in Ontario dealing with striking a jury in a civil trial is Cowles v. Balac (2006), 83 O.R. (3d) 660 ( C.A. ). In that case, O'Connor A.C.J.O. discussed the circumstances in which an appellate court may overturn a trial judge's ruling to strike a jury. In my view, an accurate summary of O'Connor A.C.J.O.'s discussion is found at paras. 40 and 52:
Appellate review of a trial court's exercise of its discretion to dispense with a jury is limited.
In Kostopoulos v. Jesshope, Robins J.A. set out the well accepted standard for appellate review as follows:
I think it manifest from the authorities that before an appellate court may properly intervene it must be shown that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.…The test is whether there were cogent reasons for the exercise of the discretion, King, supra, or, as I would word it, was there a reasonable basis for the trial judge's exercise of discretion? If the circumstances are such that there was no reasonable basis for the conclusion reached, then the trial judge will have made a reversible error. ...
[21] In my view, the trial judge's exercise of her discretion to strike the jury was far removed from being arbitrary, capricious or unreasonable. The trial judge explicitly recognized that the right to a jury trial was an important substantive right. She identified and gave weight to the arguments in favour of keeping the jury, including her own favourable impression of the jury's performance during the trial.
[22] However, in the end, the trial judge struck the jury for two reasons: first, the complexity of dealing with a person (Moore) who had suffered many injuries from five motor vehicle accidents (four as a driver and one as a passenger), a fall down stairs, a fall off a ladder, a slip and fall accident, and back strain from gardening, all over approximately a 20-year period; and, second, the fact that Moore had suffered a serious brain injury in a motorcycle accident several years before the 1998 and 2002 motor vehicle accidents, which would make it very difficult for a jury to assess his credibility, "particularly in the context of his reporting of symptoms to his various physicians, but against the backdrop of the sequelae of his brain injury as that affects his ability to properly report or follow through."
[23] On the complexity point, the trial judge summarized her reasoning in this fashion: "Trying to come to terms with all these pre-, post-and inter-accident events would overwhelm the jury." On the implications of Moore's serious brain injury before the 1998 and 2002 accidents, the trial judge relied on the testimony of Dr. Doxey, the vocational psychologist who had examined Moore in 1997, before both accidents, and again in 2004, after both accidents. The trial judge said: "Dr. Doxey himself stated that the plaintiff presented one of the most complex cases he has ever had to deal with in nearly 30 years of clinical practice."
[24] In her ruling, the trial judge said that "[e]ssentially, each case requires an analysis of the particular facts and issues that its particular jury must decide in that particular case." In my view, the trial judge conducted a careful and proper analysis. Her decision to strike the jury was not the only possibility; it was, however, a reasonable decision."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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