Discharging a Civil Jury -- Trial Judge Has Broad Discretion

The Court of Appeal decision in Faraghi v. Bayview Summit Development Ltd., 2008 ONCA 439 (released yesterday) deals with the review of a trial judge's decision to keep or dismiss a jury following prejudicial comments of counsel.



At trial the Court decided that the improper comments could be dealt with by an instruction. The Court of Appeal ruled that such decision was peculiarly within the trial judge's discretion and no review was appropriate:



"[5] In our view, the trial judge made no error in his decision to retain the jury. In Hamstra v. British Columbia Rugby Union [1997] 1 S.C.R. 1092, the Supreme Court stated: "The decision whether to discharge the jury should be a matter within the discretion of the trial judge…The jury should only be discharged if the trial judge considers that the prejudice cannot be cured…It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. This applies with equal force to a decision to retain or discharge the jury. It cannot be overstated that the trial judge is in the best position to determine how to exercise this discretion.""