Civil Procedure - Juries - Striking Jury Notice
Torts - Negligence - Volenti Defence
Kempf v Nguyen (Ont CA, 2015)
In this case the Court of Appeal canvassed principles applicable to striking a jury notice in a civil trial:
 The right to a trial by jury in civil actions is set out in s. 108(1) of the Courts of Justice Act:On the issue of the volenti defence to a negligence claim, the court stated:
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. Section 108(2) contains a list of claims for relief that cannot be tried by a jury. Declaratory relief is one such claim.
 In the majority reasons in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 496, O’Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice and appellate review of such a decision, as paraphrased here:
1. The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See also King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC),  S.C.R. 528, at p. 533: “the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons”. While several of these principles speak to the considerable discretion that is vested in the trial judge when deciding whether to strike a jury notice and the limited appellate review of the exercise of that discretion, cases such as Hunt and Brady v. Lamb (2005), 2005 CanLII 46734 (ON CA), 78 O.R. (3d) 680 (C.A.), illustrate that this court will order a new trial when it has found that a trial judge has exercised that discretion arbitrarily or based on improper principles so as to enforce the statutory right to a jury trial.
2. A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).
3. Appellate review of a trial court’s exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See also Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at p. 69, leave to appeal to S.C.C. refused,  S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge’s exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).
4. The reviewing court should not interfere with the trial judge’s exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge’s discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See also Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 625.
5. The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49).
6. While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).
7. It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See also Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.), at para. 70.
8. In some cases, it is preferable to take a “wait and see” approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary (at para. 70).
9. While in many cases the “wait and see” approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).
10. If the reviewing court concludes that the trial judge erred in striking the jury notice, the merits of the action must be considered (at para. 92). As stated in King, at p. 533, a new trial is not warranted “if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge.”
 Volenti, however, is not a claim for declaratory relief: it is a full defence to a finding of negligence. In Dube v. Labar, 1986 CanLII 67 (SCC),  1 S.C.R. 649, at p. 658, writing for the majority, Estey J. endorsed the following description of the volenti defence from the court’s earlier decision in Stein v. Lehnert, 1962 CanLII 85 (SCC),  S.C.R. 38:
[W]here a driver of a motor vehicle invokes the maxim volenti non fit injuria as a defence to an action for damages for injuries caused by his negligence to a passenger, the burden lies upon the defendant of proving that the plaintiff, expressly or by necessary implication, agreed to exempt the defendant from liability for any damage suffered by the plaintiff occasioned by that negligence... In Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ontario: LexisNexis Canada, 2011), the authors state, at p. 520, “[V]olenti is a question of fact normally decided by the jury”.