Jury Practice: Pleadings

Trial by jury has a long and illustrious history dating back to the times of the Romans. The Magna Carta states that: “no free man shall be captured and or imprisoned or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms but by the lawful judgment of his peers, and or by the law of the land.” 1

In Ontario the substantive right of a party to have their civil action heard by a jury of peers is codified in section 108(1) of the Courts of Justice Act 2. Section 108(1) provides that in actions before the Superior Court of Justice a party may request that a jury determine the issues of fact to be tried and/or the damages to be assessed.

When is a jury trial not permitted in Ontario?

The substantive right to a civil trial by jury in Ontario is subject to certain limitations and in addition to the exceptions noted below jury trials before the Small Claims Court are explicitly forbidden. Section 108(2) of the Courts of Justice Act 3 sets out the circumstances in which a trial by jury is not permitted. According to the statute a Jury Notice may not be filed if the plaintiff is seeking the following types of relief:

  • An injunction or mandatory Order;
  • A partition of sale of real property;
  • Relief in certain family law proceedings referred to in the schedule to Section 21.8 of the Courts of Justice Act; 4
  • The dissolution of a partnership or taking a partnership or other accounts;
  • The foreclosure or redemption of a mortgage;
  • The sale and distribution of the proceeds of property subject to any lien or charge;
  • The execution of a trust;
  • The rectification, setting aside or cancellation of a deed or other written instrument;
  • The specific performance of a contract;
  • Declaratory relief;
  • Other equitable relief; and
  • Relief against a municipality.

A Jury Notice may also not be filed if trial by jury is prohibited by another applicable statute. For example the Proceedings against the Crown Act and the Crown Liability and Proceedings Act forbid jury trials in civil actions which involve the Government of Ontario or the Government of Canada respectively 5.

The Method of Selecting a Trial by Jury

The mechanism by which a party asserts the right to a civil jury trial is set out in Rule 47.01 of the Rules of Civil Procedure. That Rule provides that a party is to serve and file a Jury Notice if that party wishes to proceed with trial by jury. Provided that the relief sought in the Statement of Claim is not barred by s. 108(2) of the Courts of Justice Act and provided that a jury trial is not prohibited by any another applicable statute, a party may deliver a Jury Notice pursuant to Rule 47.01 at any time before the close of pleadings. The pleadings are considered closed ten days after the date that the last Statement of Defence is filed 6. A Jury Notice must be served on all parties to the action and filed with the Court along with the appropriate fee, currently set at $104.00. Once the Jury Notice has been filed, the matter is considered a jury matter and as such would be heard by a judge and six person jury drawn from the public. In a jury trial the jury decides all of the issues of fact and assesses the damages 7. The role of the judge in a jury trial is to make evidentiary rulings, to explain the law to the jury and to explain how that law may be applied to the facts as the jury finds them.

Once a Jury Notice has been filed a jury trial can be avoided only if the parties consent to the Jury Notice being withdrawn or if a party brings a motion to strike out the Jury Notice pursuant to Rule 47.02 of the Rules of Civil Procedure. Rule 47.02 reads:

Where Jury Notice not in Accordance with Statute or Rules

47.02 (1) A motion may be made to the court to strike out a Jury Notice on the ground that, (a) a statute requires a trial without a jury; or (b) the Jury Notice was not delivered in accordance with rule 47.01.
Where Jury Trial Inappropriate (2) A motion to strike out a Jury Notice on the ground that the action ought to be tried without a jury shall be made to a judge.
Discretion of Trial Judge (3) Where an order striking out a Jury Notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.

Motions to strike out the Jury Notice

There are times when a jury trial is considered more beneficial to one party. In that situation the party who is disadvantaged by the jury will often move under Rule 47.02 (2) and s. 108(3) of the Courts of Justice Act to strike out the Jury Notice on the ground that the action ought to be tried without a jury. On such a motion, the decision to retain or strike the Jury Notice is one of judicial discretion. When a motion to strike the Jury Notice is brought the moving party bears the burden of persuasion and must point to features in the legal or factual issues to be resolved in the evidence or the conduct of the trial which merit the discharge of the jury 8.

The Supreme Court of Canada has held that the right to a jury trial is both a statutory and a substantive right which should not be interfered with absent just cause. In considering the merit of a motion to strike out the Jury Notice under Rule 47.02 (2) the essential question for the judge to answer is whether justice to the litigants can be better served by either the retention or discharge of the jury 9.

One factor that the trial judge must consider in determining the legitimacy of the motion is the complexity of the case. The case law sets out that a trial judge can take into consideration the complexity of the evidence when deciding whether or not to dismiss the jury. As the Divisional Court wrote at paragraph 23 in Soldwisch 10:

If during a trial a judge had difficulty understanding technical evidence he is in a position to ask questions to obtain the necessary explanation. On the other hand it is not always easy to know whether the jury as a whole in understanding the evidence, much less to know whether one or more jurors are experiencing difficulty. It is frequently difficult enough for an expert to explain a technical matter so that one person can understand it. It is substantially more difficult to explain it in a way that a number of different persons, each with different educational and occupational backgrounds, can do so. There are practical constraints upon the amount of time that can be taken in the education of the tribunal so that it can comprehend the complexities of someone else’s field of expertise. Often one person can be educated more quickly than a group. It is, we think, more probable within some reasonable time constraints that one person – the judge – can be educated more quickly than can a group of people – the jury.

A consideration of the complexity of the case relates not only to the facts and the evidence, but also to the applicable legal principles. While it is the trial judge’s responsibility to determine questions of law and to instruct the jury on legal principles, it is the jurors who must marry those principles to the facts of the case 11. The area of medical malpractice is one type of civil litigation that often sees motions to strike the Jury Notice simply because cases in this area often involve highly complex evidence.

At times, it can be difficult at the outset to evaluate the degree of complexity of the case, and the trial judge will often let the trial proceed with a jury and take a wait and see approach. In that situation the trial judge will reserve decision on the motion to strike the Jury Notice until such time as the appropriate decision can be made. Where it is clear that justice is best served by a trial of judge alone, the trial or motions judge can discharge the jury before a trial has begun or before beginning to hear the evidence 12.

The decision to strike a Jury Notice is highly discretionary and is best analyzed on a case by case basis. Examples of situations where Jury Notices have been struck include:

  • a case where a plaintiff was going to be unrepresented at trial, would need considerable assistance from the trial judge and was likely to act in an inflammatory and prejudicial manner in front of a jury 13;
  • a case where the complexities included overlapping legal issues and a Mary Carter agreement 14; and,
  • a case where the trial was expected to take two weeks and the plaintiff had suffered two additional injuries since the motor vehicle accident requiring complex medical, actuarial and rehabilitation evidence to be called. 15

Conversely, cases where motions to strike a Jury Notice have been dismissed include:

  • A defamation action including allegations of libel and slander in a claim, counterclaim and a third party proceedings. In that case the Court found it had a duty to translate complex matters into a manageable form for the jury. The Court went on to hold that the right of a party to a jury trial is a substantive right which can only be set aside for compelling reasons 16; and,
  • A long and complex trial regarding prejudicial media publications and broadcasts and inflammatory statements by counsel as well as a relationship between some of the jurors and two witnesses 17

Given that case law in this area does not follow any recognizable pattern, it is difficult to provide an adequate recommendation as to when one can expect success on a motion to strike a Jury Notice. When bringing such a motion it is helpful to remember the words of Associate Chief Justice of Ontario O’Connor in the case of Cowles v Balac:

“after all, the object of the civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have the unfettered right to determine the mode of trial. Rather, the Court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury. The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with the wide variety of cases and to render fair and just results. The test, however, recognises that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible.”

Where a Jury Notice was not served before pleadings closed

Where counsel has missed the window to serve their Jury Notice and the pleadings have closed, one method to re-open the window is by amending the claim. The case of MacDonald v. Zurich Life Insurance Company of Canada 18 stands for the principle that when leave is granted to amend the pleadings the effect is that the pleadings are re-opened unless it is evident that the pleadings were only re-opened for a limited purpose. However, MacDonald does not provide counsel with carte-blanche to serve a Jury Notice at any time as long as leave to amend the claim is granted. Other case law suggests that changing a case from judge alone to a jury after the completion of all procedural steps necessary to make the action trial-ready raises a presumption of prejudice. Therefore if the matter is ready for trial the party who wishes to serve a Jury Notice will have to rebut a presumption of prejudice before any Jury Notice can be filed. Therefore it is always better to serve a Jury Notice early on in the litigation rather than in the weeks or months leading up to the trial.

Civil jury trials still have a strong tradition in Ontario however the right of a party to insist on a civil jury trial is not by any means absolute. The substantive right to a jury trial has been codified to allow for situations where trial by jury would be considered inappropriate. In addition, the courts have been granted a broad judicial discretion to evaluate, on application by a party, whether a jury trial is the appropriate type of trial in any particular case. This system ensures that the right to a jury trial in a civil action is balanced with the desire of the Court to ensure that the trial is conducted efficiently and effectively and that the verdict is both fair and just.

  1. translated by Lysander Spooner in his Essay on the Trial by Jury article 39 of the Magna Carta http://www.lysanderspooner.org/TrialByJury.htm
  2. R.S.O. 1990, c.C. 43, s.108(1); 1996, c.25, s.9(17)
  3. R.S.O. 1990, c.C. 43
  4. Proceedings under the following statutory provisions: Change of Name Act; Child and Family Services Act, Parts III, VI and VII; Children’s Law Reform Act, except sections 59 and 60; Divorce Act (Canada); Family Law Act, except Part V; Family Responsibility and Support Arrears Enforcement Act, 1996; Interjurisdictional Support Orders Act, 2002; Marriage Act, section 6.
  5. Crown Liability and Proceedings Act R.S., 1985, c. C-50, s. 26; 1990, c. 8, s. 31. and Proceedings against the Crown Act R.S.O. 1990, c. P.27, s. 11.
  6. Rule 25.05 of the Rules of Civil Procedure.
  7. Provided that the Jury Notice did not specify that the jury was only to decide the issues of liability or damages.
  8. Graham v. Rourke (1990), 75 O.R.(2d) 622 (C.A.) at paragraph 6
  9. King v. Colonial Homes Ltd. [1956] S.C.R. 528 (S.C.C.)
  10. Soldwisch v. Toronto Western Hospital et al.[1983] O.J. No. 3188 (Div. Ct.) at paragraph 23
  11. Cowles v. Balac (2006) O.J. No 4177 (C.A.) at paragraph 49
  12. Cowles v. Balac (2006) O.J. No 4177 (C.A.) at paragraphs 71-72
  13. Desjardins v. Arcadian Restaurants Ltd. (2005) 77 OR. (3d) 27,28 C.P.C. (6th) 326 (S.C.J.)
  14. Bartosek (Litigation Guardian of) v. Turret Realties Inc. (2001) 7C.P.C. (5th) 372 (S.C.J.)
  15. Ball v. Vincent (1993), 27 C.P.C. (3d) 148 (Gen. Div.)
  16. Gianopoulos v. Olga Management Ltd. (2004), 4 C.P.C. (6th) 209 (S.C.J.)
  17. Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (1999), 30 C. P.C. (4th) 172 (Gen. Div.)
  18. (2003), 37 C.P.C. (5th) 338 (S.C.J.)

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