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Background:

A complicated action was proceeding in Ottawa before Justice Denis Power and a jury. The plaintiff’s injuries, arising out of a car accident, raised difficult issues of causation and required that complex medical evidence be heard. The plaintiff’s lawyers considered the medical issues were too complex for the jury and brought a motion to strike out the jury notice. Justice Power denied the motion at the outset of trial, but later revisited his decision and dismissed the jury after portions of the medical evidence had been heard. He agreed the evidence was too complex and exercised his discretion to continue the trial by judge alone. This is provided for in Rule 47.02(3) of the Ontario Rules of Civil Procedure, which states: “Where an order striking 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.” Shortly after the jury was dismissed, the parties settled the action contingent upon a challenge being brought to the ability of a motion judge to dismiss a jury on grounds of complexity. The defendant insurer considered that the rule allowing for dismissal of the jury discriminated against jurors, was too vague and violated their client’s rights under the Charter of Rights and Freedoms. Justice Power was asked to state a special case and deliver a judgment on the important issues. He agreed to do so and invited the Advocates’ Society and the Ontario Trial Lawyers Association to participate. I was asked to represent the Ontario Trial Lawyers Association.

Approach:

The novel issues raised by the insurer had not previously been considered in detail, and required much legal research to formulate the best approach to respond to the issues. I decided to focus the response on ensuring that the discretion given to a judge to strike out a jury be preserved. The discretion is crucial to ensure the fairness of a trial. The effect of the insurer’s argument would have been to remove all such discretion to dismiss a jury even if a judge considered that the jury could not properly comprehend the evidence. This would have serious implications.

Result:

The hearing proceeded over two days before Justice Power. He gave careful attention to the issues and released thorough reasons for judgment dismissing all the arguments made by the insurer. As to the response made on behalf of the Ontario Trial Lawyers Association, Justice Power agreed that the Rules of Civil Procedure provided sufficient guidance for legal debate and were not vague. He described his conclusions on these points as follows: “The concept of judicial discretion is fundamental in our law…the concept recognizes that it is impossible to codify all the permutations and combinations that can and do result in the delivery of justice. In his submissions Mr. Rouben, counsel for OTLA, took me through numerous sections of the Courts of Justice Act and many of the rules of civil procedure  where open-ended language is used in bestowing discretion on a judge…Mr. Rouben also, correctly, in my opinion, pointed out that judges, on a daily basis, are asked to exercise their             discretion regarding such concepts as the reasonable person; reasonable notice; the duty to act reasonably; best interest of a child or other person; reasonable care…Accordingly, Mr. Rouben suggested that to accept the defendants’ vagueness argument would be tantamount  to rejecting fundamental concepts which have been part of our law for centuries and are absolutely necessary to the administration of justice. I accept this submission as valid and compelling.”

The insurer was not satisfied with the decision and appealed to the Ontario Court of Appeal. The appeal was dismissed, as was an application for leave to appeal to the Supreme Court of Canada.

Decision of Justice Power

http://www.canlii.org/eliisa/highlight.do?text=2008+canlii+4308&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/2008/2008canlii4308/2008canlii4308.html&searchUrlHash=AAAAAQAQMjAwOCBjYW5saWkgNDMwOAAAAAAAAAE

Decision of the Court of Appeal

http://www.canlii.org/eliisa/highlight.do?text=2009+onca+760&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onca/doc/2009/2009onca760/2009onca760.html&searchUrlHash=AAAAAQANMjAwOSBvbmNhIDc2MAAAAAAAAAE

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