Striking a jury

MacGregor v. Potts, 2012 ONCA 226 is an interesting example of a case where the party filing a jury notice successfully moved to have the jury struck:

[31]      The respondents (plaintiffs) filed a jury notice, as was their right.  They began to call their evidence.  After the evidence of Mrs. MacGregor and two obstetrical experts they, somewhat unusually, brought a motion to strike their jury notice.  Dr. Potts opposed the motion.  The defendant Grand River Hospital took no position on the motion.

[32]      In a 13 page ruling, the trial judge granted the motion and struck the jury.  He observed that the parties proposed to call an additional 21 experts and that the trial would likely last eight weeks.  He recognized that “[c]learly it is possible for a jury to hear and decide a medical malpractice case”.  He set out the test for discharging a jury inGraham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.) and Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.).  He found that “there are many complex aspects in the factual, medical and legal issues in this case.”  He reviewed these in an organized and comprehensive fashion, including the potential obstetrical issues, scientific issues relating to causation, and the complicated future care cost claim.  He concluded that “because of complexity, justice for the parties in this case is best served by the discharge of the jury.”

[33]      The appellant contends that the trial judge erred in finding that the case was too complex for a jury.  In his factum, the appellant says that the trial judge “misapplied the law and discharged the jury arbitrarily”.

[34]      I do not accept this submission.  The appellant does not explain how the trial judge “misapplied the law”; nor does he say what constituted the arbitrariness of his ruling.

[35]      The decision to discharge a jury is a discretionary one.  Appellate intervention is not warranted if there is a reasonable basis for the exercise of the trial judge’s discretion: see Cowles v. Balac, at paras. 40-42.  Based on the trial record and, frankly, based on the record and the nature of the legal argument in this three-day appeal, the trial judge’s decision to discharge the jury, and his reasons for doing so, were entirely reasonable.