For as long as anyone can remember, judges have had a discretion to strike out a jury where the complexities of the case warrant it, the rationale being that judges are better able by training and experience to understand and process difficult issues. The Administration of Justice Act, 1877, section 255, provided that: “Notwithstanding anything in the two next preceding sections contained, the Judge presiding at the trial may in his discretion direct that any such action shall be tried or the damages assessed by a jury; And upon application to the Court in which the action is pending, or to a Judge thereof, by an order made before the trial, or by the direction of the Judge presiding at the trial, the issues may be tried and damages assessed without the intervention of a jury.” The discretion to strike out a jury was unreviewable until the Court of Appeal in Burton v. Harding,  3 D.L.R. 302 (Ont. C.A) held that the discretion was to be exercised judicially and not in an arbitrary or capricious manner. Shortly thereafter, in King v. Colonial Homes,  S.C.R. 528 (S.C.C.), the Supreme Court of Canada held that the right to trial by jury was a substantial right which could not be denied except on substantial grounds.
Section 108(2) of the Courts of Justice Act provides for categories of claims, mostly involving equitable relief, in which jury trials are prohibited. For all other claims, section 108(3) provides that “On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.” Rule 47.02(2) similarly provides that “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” and Rule 47.02(3) provides that “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.” As interpreted, these provisions provide a discretion to strike out a jury where a judge is of the view that the action would be too complex for a jury to decide.
Under the Seventh Amendment to the United States Constitution, there is a right to a civil jury trial in any case where the “value in controversy shall exceed $20.00… and no fact tried by jury shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.” This provision has made it virtually impossible to strike out a jury on grounds of complexity in the United States. There is no express provision in the Canadian Charter of Rights and Freedoms guaranteeing a right to a jury in a civil case, however section 11(f) of the Charter provides for a right to a jury in criminal cases “where the maximum punishment of the offence is imprisonment for five years or a more severe punishment.”
In his interesting dissenting reasons in Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), Borins J.A. had occasion to consider the reasoning behind the jurisprudence which allows for the striking out of a jury on grounds of complexity. Based upon his long-standing experience as a trial judge, Borins J.A. questioned the idea that juries are incapable of rendering just decisions in complex matters, noting that they have routinely done so in difficult criminal cases featuring complicated factual and legal issues. Borins J.A. also questioned the idea of what constitutes a complex case, stating that an adequate definition has not been put forward in the jurisprudence.
On September 1, 2000, Daniel Legroulx was involved in a serious motor vehicle accident. He claimed that he was rendered a paraplegic as a result of the injuries sustained in the accident. His action was filed in the Superior Court of Justice in Ottawa. The Defendants delivered a jury notice. The action came on for trial in May 2007 before the Honourable Mr. Justice Denis Power and a jury. Capable counsel for the Plaintiffs, Mr. Gregory Kelly, Q.C. and Ms. Caroline Failes, brought a motion at the outset of trial to strike out the jury. It was their contention that the medical evidence and competing expert theories on causation would be too difficult for a jury to understand. The motion was strongly resisted by defence counsel, Mr. Todd McCarthy. Power J. dismissed the motion. He decided that a “wait and see” approach was the most appropriate manner in which to proceed, that is, he wanted to hear the evidence before deciding whether it would be too complex for the jury. Following the ruling, three medical experts testified on behalf of the Plaintiffs, a haematologist, a neuroradiologist and a pediatric neurologist. Mr. Kelly decided to renew the motion at that point. In the course of his thoughtful reasons striking out the jury, Power J. said the following:
“From my vantage point, as the trial judge, I was able to observe the jurors as the testimony unfolded. I’m not a mind reader, but I do have some life experience. I formed the opinion from my observations that at least some of the jurors gave a strong impression of having difficulty with the evidence…
While some of the jurors are making notes from time to time, others are not. There is no possible chance, in my opinion, of this jury being able to remember the subtleties of the evidence that has already been given and will be given with respect to the issues that the three aforesaid doctors dealt with.
We are dealing with matters of blood, with the circulatory system and the spinal cord. In other words, we are dealing with very complicated issues and, certainly, issues that are not everyday issues but issues that, in my view, are foreign to most lay people. Of course, as Mr. McCarthy says, that’s the purpose of experts and it’s the trial judge’s function to make sure the jury does understand their testimony…
Now, this may sound arrogant, a finding that I appreciate it and they don’t, but nevertheless, I think that’s the position I found myself in. My experience as a litigator, as a note-taker and as a participant in litigation proceedings has taught me how to deal with these things, whereas the jurors don’t have that background.”
Soon after the decision was rendered, counsel were able to reach a settlement of the action provisional upon the Court stating a case under Rule 22 as to the constitutionality of Rule 47.02(3) and the resulting jurisprudence by which a Court is permitted to strike out a jury on grounds of complexity. As ultimately refined and accepted for decision by Power J., the questions at issue were the following:
- Are Rules 47.02(2) and 47.02(3) promulgated under section 108(3) of the Courts of Justice Act invalid having regard to sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms?
- If the said Rules are not constitutionally invalid as infringing upon one or both sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms, is the jurisprudence that permits a motion judge or trial judge to discharge a jury on the ground of complexity in a civil action nevertheless constitutionally invalid having regard to sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms?
- Are Rules 47.02(2) and 47.02(3) and/or the jurisprudence thereunder concerning the exercise of discretion to discharge a civil jury on the ground of complexity nevertheless saved by section 1 of the Canadian Charter of Rights and Freedoms?
- If the answer to question 1 or 2 is yes and the answer to question 3 is no, what remedy or declaration should be granted under section 24(1) of the Canadian Charter of Rights and Freedoms?
The Attorneys General of Canada and Ontario, as well as the Advocates’ Society and the Ontario Trial Lawyers Association, were invited to intervene and participate in the Special Case. The Attorneys General declined to do so, however the Advocates’ Society and OTLA were represented by counsel and delivered facta and presented oral argument at the hearing, which proceeded over two days in September 2007. I had the privilege of acting on OTLA’s behalf.
The position put forward by the Defendants was that section 7 of the Charter, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” precludes the striking out of a jury on grounds of complexity, as Defendants are exposed to a substantial judgment based on vague legislation and unpredictable rulings. The remedy asked for was a declaration that, henceforth, judges would be precluded from striking out a jury solely on the grounds of complexity. The Defendants made further arguments pursuant to section 15 of the Charter, claiming that Defendants and jurors suffered discrimination. OTLA’s response focussed on the Defendant’s argument that the Rules and resulting jurisprudence are too vague to allow for effective decision making.
It is certainly the case that principles of fundamental justice require that laws not be so vague that decision makers cannot interpret or enforce the law. This is particularly important in the context of criminal and regulatory offences. In the leading decision of R. v. Nova Scotia Pharmaceutical Society,  2 S.C.R. 606 (S.C.C.) Gonthier J. set out the test for a finding that a law is unconstitutionally vague: “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” Gonthier J. expanded on the point in Ontario v. Canadian Pacific Limited,  2 S.C. R. 1031 (S.C.C.):
“The use of broad and general terms in legislation may well be justified, and s. 7 does not prevent the legislature from placing primary reliance on the mediating role of the judiciary to determine whether those terms apply in particular fact situations. I would stress, however, that the standard of legal precision required by s. 7 will vary depending on the nature and subject matter of a particular legislative provision. As I stated in Nova Scotia Pharmaceutical Society, supra, at p. 627: “Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretive role of the courts; (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.”
In considering the Defendant’s submission, it was my respectful view that the argument that Rule 47.02(3), as interpreted by the Courts, was unconstitutionally vague struck at the very heart of our legal system. The Rules of Civil Procedure themselves are shot through with open ended language that provides little guidance to the judiciary. At the hearing, some 30 provisions from the Rules and the Courts of Justice Act were cited, each of which are as vague as the reference to a “proper case” in Rule 47.02(3). These include language such as: on such terms as are just, where it appears necessary in the interests of justice and make such order as is just. There are also an infinite number of legal concepts, equally open ended, which judges are called upon to deal with on a daily basis: the reasonable man, the best interests of the child, the duty to act reasonably, to name just a few. The Charter itself, in section 24(1), refers to a court granting a remedy that it “considers appropriate and just in the circumstances.”
The fact is that our common law legal tradition is based upon the legislature vesting discretion to judges to make decisions on open ended statutory provisions and legal concepts applied to individual circumstances. If the standard of a “proper case” were found to be too vague to guide judges in making decisions in individual cases, this would open the door to challenges to all manner of judicial discretion, with serious implications for the administration of justice. This submission found favour with Power J. He accepted it as a “valid and compelling” reason to reject the Defendant’s submission that the Rules and resulting jurisprudence were void for vagueness: Legroulx v. Pitre,  O.J. No. 443, para. 70.
The Defendant’s argument also took direct aim at the idea that judges are better able to deal with complex issues than juries, calling it arrogant, outdated and based on little more than speculation and gut reactions. In his decision, Power J. addressed this argument head on:
“A judge, when considering an issue of complexity, looks to the relevant surrounding circumstances. Judges do this all the time. While there may be a lack of empirical evidence to support a conclusion that, where a case appears to be a complicated one, a judge is better equipped to deal with it, the proposition, in my opinion, has merit. Surely it cannot be seriously argued that a judge does not possess knowledge, skill and experience superior to the ordinary juror. To conclude otherwise, it seems to me, is to negate the fact that judges are people who are skilled and experienced in deciding cases. Quite simply, deciding cases is their business…Judges do not ‘deem’ themselves better qualified than lay citizens acting as triers of fact. As observed above, judges, on a daily basis, are required to deal with difficult legal and factual issues and possess learning and expertise in doing so, learning and expertise that is not possessed by the ordinary juror.”
As can be seen from this brief review, the Special Case decided by Power J. raised interesting and important issues for the administration of justice in Ontario. The summary presented here does not do justice to the careful approach to the issues adopted by Power J., whose reasons are reported as noted above. The Defendants have appealed the decision to the Court of Appeal for Ontario. As of the time of writing, a date for hearing has not been set.