Entitlement to civil jury

Green v. T&T Inspections & Engineering Ltd., 2012 NSSC 131 is a useful case outlining the entitlement to a civil jury.  While arising in Nova Scotia the reasoning applies broadly:

 

[8]        It has long been recognized in this Province that a party to a civil action has a prima facie right to a jury trial which is a substantive right that should not be denied without cogent reasons (see MacNeil v. Hill the Mover (Canada) Ltd. et al. (1961), 27 D.L.R. (2d) 734 (N.S.S.C., in banco) and King v. Colonial Homes Ltd. et al., [1956] S.C.R. 528 (S.C.C.)).

 

[9]        Historically, our courts did not appear to be reluctant to take a case away from a jury if the trial involved matters of science.  In Marshall v. Curry (No. 2) (1933), 6 M.P.R. 267 (N.S.S.C., in banco) the Court referred to the following statement of Chief Justice Chisholm at p. 269:

 

..........If the trial requires a scientific investigation, I think it must be conceded that the investigation cannot conveniently be made with a jury.

 

[10]      Over time, however, the courts recognized that juries may be as well equipped, or more so, than a judge sitting alone to determine a case involving scientific or other complex issues.  In Myra v. Langille (1987), 80 N.S.R. (2d) 135 (S.C.T.D.) Rogers J., when dealing with a medical malpractice case, stated at ¶¶ 12 - 17:

 

I agree with Mr. Justice Jones in Hearn v. Bear and the Halifax Infirmary (1974), 16 N.S.R. (2d) 62; 16 A.P.R. 62, the rule stated by Chief Justice Chisholm does not go as far as to say that in every case where scientific investigation is required the investigation cannot be conveniently made by a jury.

 

Not all malpractice suits, perhaps not even the majority, involve that kind of  complexity, although with technical expert testimony, that a jury cannot come to grips with the evidence with which they have been presented, particularly with the help of counsel and the court directing their attention to the relevant evidence and law, and particularly if they have the necessary time to deliberate. In my view, a reasonably educated and informed jury is just as capable, perhaps even more so, because there are seven of them, of assessing expert medical testimony, as a single judge.  This is so, particularly if that evidence is presented to it, as it should be, in a way that a reasonably educated and informed group of lay people can understand it.  No more is done when a single judge hears the case.  The judge is not an expert in medicine when he hears a medical malpractice suit and must assess what are often conflicting medical opinions without a medical expert’s background. He is faced with the same difficulties a jury is faced with when medical evidence is introduced.  He and they must assess the evidence, the weight of it, the conflicts in it, and make findings with respect to it.

 

Complicated medical evidence is often presented in criminal jury trials, yet the trials go forward and the juries deal with the issues raised by that evidence. The knowledge of no profession which deals with the public should be clothed in so much mysterious complexity that it cannot be explained in understandable terms to a reasonably intelligent jury of fellow citizens. In applications to strike out a jury notice otherwise properly made a judge must weigh the complexity of the evidence that will be adduced at trial against the longstanding, traditional and substantive right of a plaintiff in Nova Scotia to a jury  trial.  There must be cogent reasons to remove a case from a jury.