Discovery

The issue whether there should be any change that would affect a party's right to a jury trial was controversial. Some advocated no change. Others, mainly judges, advocated the abolition of civil juries. From the standpoint of the personal injury bar, access to a jury trial is a unifying issue as both the plaintiff and defence sides want access to civil jury trials preserved.

In 2005 –2006, there were 6,839 civil trials heard.  43  Of these trials heard, 1,598 or 23% were jury trials. The vast majority of these jury trials involved litigation arising from motor vehicle accidents (1,186 or 74% of civil jury trials heard).

Although there is some opinion to the contrary, based on my experience and that of others, I think it is clear that most (not all) civil jury trials take longer than the same trial would have taken before a judge sitting without a jury. The offset is that the rate of settlement for civil jury trials is higher than for non-jury trials.

On balance, I am not satisfied that a sufficiently strong case has been made to recommend that civil jury trials be abolished or available only on motion in specified circumstances. I recognize the unfortunate reality that insurers in most negligence actions require their counsel to deliver a jury notice. I refer to this as “unfortunate” because one clear aim of the strategy is to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs.

I do, however, think that some limitations on the statutory right to a jury trial should be imposed for at least some simplified procedure (rule 76) trials. I reach that conclusion for two general reasons. First, there is the matter of institutional resources: jury panels have to be secured, jurors accommodated etc. Frequently, a relatively large panel has to be assembled for jury trials that typically settle shortly before trial. Second, there is the matter of juror inconvenience. I have been told that some jurors have raised the issue whether their civil duty should be engaged where the issue is whether the defendant should pay the plaintiff $12,000. Even if that question has not been asked, it should be addressed.

In my view, in simplified rules cases where the claim is $50,000 or less, there should be no right to a jury, except on motion. For purposes of the motion, I think that there should be some broad public interest component in the action before an order is made for a jury trial.

I would exempt the common law actions for defamation, malicious prosecution and false imprisonment, where there is a strong historical right to a jury in a case engaging community values. I considered but rejected the idea of requiring the party seeking a jury to, in effect, pay for the right as occurs in British Columbia.

In the section on Simplified Procedure I have recommended raising the simplified rules monetary limit to $100,000. If this is done, the existing access to a jury trial would apply to larger simplified rules claims – in the $50,001-100,000 range.

The trial judge is in the best position to determine whether the jury understands and is capable of understanding the essential issues in the action. Trial judges ought to be able to dispense with the jury, on the trial judge's own motion. The views of counsel should, of course, be received and considered. I think that it would be a rare case where the trial judge would discharge a jury when both the plaintiff and defendant oppose taking that step.

Recommendations (Civil Juries)

  • The current regime governing the availability of civil juries set out in the Courts of Justice Act should be retained, except for simplified rule actions under rule 76 in which $50,000 or less is claimed. In those cases a party must obtain an order, on motion, to obtain a jury based on broad public interest grounds.
  • The Courts of Justice Act should be amended to permit the court to dispense with a jury on its own motion. It should prescribe the following test to be applied by the court when deciding whether or not to strike a jury notice:
    1. Whether justice will be served better with or without a jury, after considering all relevant factors, including the facts of the case, the technical nature of the evidence, the complexity or uncertainty of the relevant law, the predominance of substantive legal issues over factual issues, the interwoven issues of fact and law, and counsels' positions;
    2. Whether a party would be able to obtain a fair trial before a jury;
    3. Whether jury service would be an unwarranted inconvenience to jurors, considering the value, nature and importance of the matters, the parties' interests in a jury trial, and the likely duration of the trial; and
    4. Where, in the opinion of the court, inflammatory conduct by a party or counsel or inadmissible evidence has been placed before the jury.