Fridays with Rogers Partners
At our weekly meeting, Miranda Lacalamita discussed the recent decision of the Ontario Superior Court of Justice in Robson v. LSO, 2024 ONSC 4728, dismissing the defendants’ motion to strike the jury notice in the action.
The court dismissed the motion without prejudice to the trial judge striking the jury notice at the outset or during trial if it appears that it is no longer in the interests of justice that the matter be heard by a jury.
Facts
The plaintiff is a former lawyer and the defendants are the LSO, an investigation counsel, and a discipline counsel. The plaintiff pleads the tort of malicious prosecution, claiming that the defendants have been on a mission to disbar him since 2002 and have brought proceedings against him to achieve that end.
The plaintiff’s legal troubles date back to 1992 when he filed for bankruptcy. Later, it was discovered that he may have acquired shares in an anti-aging group of companies while he was still an undischarged bankrupt. A trustee brought a claim against him, and in 2004, a judge found that the plaintiff had indeed owned these shares and had instructed his law clerk to alter corporate records to aid in his position in the case.
This finding led to an investigation of the plaintiff by the LSO in 2002 on the basis that it gave rise to a reasonable suspicion that the plaintiff may have engaged in professional misconduct. The investigation culminated in a finding by a hearing panel in 2013 that the plaintiff engaged in conduct unbecoming of a barrister. His licence was revoked and he was ordered to pay $90,000 in costs, however, the plaintiff successfully appealed this decision in 2015 and the LSO chose not to pursue the matter further.
The Law on Jury Notices
The right to a trial by jury in civil actions is set out in Section 108 of the Courts of Justice Act, which reads:
In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.[1]
The right to a trial by a jury in a civil case is a substantive and important right that judges should not interfere with lightly.[2] However, the Ontario Rules of Civil Procedure permit a party to bring a motion before a judge to strike a jury notice, pursuant to Rule 47.02(2).[3]
The test for discharging a jury in a civil proceeding was articulated by the Ontario Court of Appeal in Graham v. Rourke as follows:
- When a trial judge is asked to discharge a jury, they must decide whether justice to the parties will be better served by the discharge or retention of the jury.
- The moving party bears the burden of persuasion and must be able to 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.[4]
Case law has provided guidance on the proper factors to consider in determining whether justice will be better served on discharge of a jury. In Cowles v. Balac, the court held that the main consideration is the complexity of the facts and the legal principles that apply to a given case.[5] Additionally, the more recent decision in Louis v. Poitras indicated that the state of the administration of justice and the civil backlog are also appropriate considerations.[6]
Analysis
The defendants argued that the jury notice should be struck on both complexity and administration of justice grounds. Both arguments were rejected by the court.
The Complexity Arguments
The defendants argued that the matter is too complex for a jury because it involves technical legal issues surrounding multiple different proceedings. These decisions involve legal concepts such as causation, reasonable and probable grounds, issue estoppel, res judicata and abuse of process.
The court rejected the defendants’ assertion that these issues are too complicated for a jury to grapple with. It explained that these issues are regularly put before a jury and are capable of being explained to a layperson. It emphasized the decision in Cowles where the court held that “trial judges are presumed to know the law and be able to explain it to a jury.”[7]
The Administration of Justice Arguments
The defendants submitted that the interests of the civil backlog favour striking the jury notice. The main argument put forth was that the plaintiff is self-represented and proposes calling irrelevant witnesses and evidence that is inadmissible. This will result in many disputes over the admissibility of evidence where the jury must be continually excused from the trial.
The court rejected this argument since the parties had agreed that the main evidence in chief will be by way of affidavit. Furthermore, as the matter was proceeding by a summary trial, the court proposed that the defendants would be able to address admissibility issues once before the trial judge at the outset of that witness’ evidence in the absence of the jury. Therefore, there will be no need for the jury to be continually removed from the trial.
Additionally, the court noted that the defendants’ witness list shows that it will call no more than seven hours of testimony. The plaintiff’s estimated time for testimony was 21.2 hours. Taken together, this is well within the agreed upon 10 days scheduled for trial, and the defendants had not provided enough evidence to demonstrate that it will go beyond that schedule.
Conclusion and Takeaways
For the reasons discussed, the court dismissed the appeal. However, it left the door open for the trial judge to strike the jury notice if it appears at the outset or during trial that the matter is too complex for a jury and/or that the interests of justice favour this.
This case is an application of the “wait and see” approach which was articulated by the Court of Appeal in Kempf v. Nguyen and Cowles, which allows for trials to begin with a jury, but leaves room for adjustments if complications arise.[8] This approach is preferable in some cases, because experience shows that in many cases, “the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted.”[9] Waiting and seeing allows courts to “better […] protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so.”[10]
[1] RSO 1990, c C.43.
[2] Kempf v. Nguyen, 2015 ONCA 114 at para 43; Penate v. Martoglio, 2024 ONCA 166 at para 18.
[3] RRO 1990, Reg. 194.
[4] 1990 CanLII 7005 at 7.
[5] 2006 CanLII 34916 at paras 58, 72 and 91 (ON CA) [Cowles].
[6] 2021 ONCA 49 at para 17.
[7] Cowles at para 63.
[8] 2015 ONCA 114 at para 43; Cowles at para 70.
[9] Cowles at para 70.
[10] Ibid.