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Sadly, Justice Stephen Borins of the Court of Appeal for Ontario passed away on June 13, 2009. Justice Borins was appointed to the then County Court in 1975 and was highly respected throughout his career for the quality and thoughtfulness of his judicial writings, which were characterized by historical references and scholarly analysis. Justice Borins was elevated to the Court of Appeal in 1997 and continued to serve on the Court with distinction until his passing.

One of Justice Borins’ most interesting recent judgments was the 2006 dissenting decision in Cowles v. Balac, which involved the striking out of a jury in a personal injury claim. His reasons amounted to a love letter to the jury system and characteristically included a lengthy historical overview of the discretion of a trial judge to strike out a jury on grounds of complexity. Justice Borins wrote:

In my experience as a trial judge, I presided over several very lengthy criminal jury trials involving difficult concepts, such as complicated conspiracy trials that involved the co-conspirator’s exception to the hearsay rule, and trials where self-defence had to be explained to the jury. Based on that experience, I have a high regard for the intelligence and common sense of juries. If a jury can deal with similar issues in the criminal context, logically a jury should be able to deal with them in a civil context notwithstanding that in criminal trials the trial judge has no discretion to strike the jury. Based on my experience on this court, I have a high regard for the ability of trial judges to explain difficult and complicated concepts of law and factual issues to a jury.

In reviewing the cases in which the court has considered whether to strike a jury on the ground of complexity, I was struck by the absence of any attempt to define what constitutes a case that is too complex to be trusted to a jury. In addition, I was struck by the absence of any analysis as to why some cases should not be tried by a jury and others should be, and by a similar absence of any analysis as to why a judge is presumed to be able to do a better job than a jury. Although juries have rendered fair and rational verdicts for centuries in very complicated criminal trials, why is it assumed that they are not capable of doing so when the same circumstances become the subject of a civil action? In reading the judicial opinions, it is difficult to escape the conclusion that decisions about the right to a jury trial in particular cases are informed more by intuition and assumptions about the relative abilities of juries and judges than by empirical knowledge. Stated somewhat differently, without the benefit of supporting empirical data, the hypothesis used to support striking a jury is that jurors, but not judges, are incompetent to deal rationally with complex civil cases. To this I would add, as it is accepted that a jury trial presents more management issues for a trial judge than a bench trial and requires the trial judge to prepare and deliver instructions to the jury, in my view judges must be careful to avoid subconscious bias in favour of a bench trial when confronted by a motion to strike the jury.

Justice Borins also wrote a number of important judgments on the standard for the granting of summary judgment under the Ontario Rules of Civil Procedure, holding that it is not the function of a motion judge to make findings of fact on disputed evidence.

Justice Borins’ passion for law and justice were evident throughout his distinguished career.