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:
THE DECISION TO DISCHARGE THE JURY
[6] As indicated above, the trial judge discharged the jury at the outset of the trial. The decision to discharge a jury is a discretionary one. This court will defer to the exercise of that broad discretion unless it is shown that the discretion was exercised on a wrong principle or that its exercise in the circumstances can properly be characterized as arbitrary, capricious or unreasonable. Clearly, trial courts are given considerable leeway in exercising their discretion on this question: Hunt v. Sutton (2002), 60 O.R. (3d) 665 at para. 52 (C.A.); Cowles v. Balac (2006), 83 O.R. (3d) 680 at paras. 31-46 (C.A.).
[7] The trial judge recognized that the right to trial by jury was a substantive one and that the respondent bore the onus of demonstrating that the justice of the case would be better served by the discharge of the jury. Nor is it argued that the trial judge erred in making her determination prior to the commencement of the evidence.
[8] We had the benefit of a careful and critical review of the trial judge's reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge's view, that complexity arose out of several aspects of the evidence. First, there was the respondent's pre-existing medical condition and the need to determine the impact of that condition on the respondent's post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent's loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).
[9] Based on these evidentiary complexities, the trial judge concluded, at para. 21:
As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.
[10] It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge's characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge's exercise of her discretion.
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