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Juries - Striking Jury Notice

. Penate v. Martoglio

In Penate v. Martoglio (Ont CA, 2024) the Court of Appeal considers (and allows) an appeal where the trial court struck a jury:
[12] The Penates chose to have a jury try their claims. During a 25-day trial, the jury heard evidence from eight fact witnesses and nine expert witnesses concerning whether the respondents caused Norman’s brain injury by breaching the standard of care.

[13] At the close of trial, the respondents Dr. Martoglio, Dr. Liu, and the executors of Dr. Martyn’s estate claimed that the Penates’ counsel’s closing address inappropriately appealed to the jury’s sympathies and referred to the opening address of those respondents’ counsel as evidence instead of anticipated evidence. The trial judge stated that she could remedy these comments by telling the jury how to deal with their emotions and that the opening address is only anticipated evidence, but then invited the respondents to submit any additional objections in writing.

[14] The respondents submitted 39 objections to the closing, including numerous allegations that the Penates’ counsel made assertions without evidentiary foundation or misstated the evidence. The trial judge heard oral submissions concerning these objections, and the Penates submitted that the comments were not prejudicial. Neither party asked the trial judge to discharge the jury. Nevertheless, the trial judge discharged the jury at the close of submissions and announced that she would decide the case herself.

[15] The following week, the trial judge released five-paragraph reasons for her decision to discharge the jury, which are reported at 2021 ONSC 7381. Most of the decision comprised a block quote of the legal standard concerning counsel’s addresses to the jury from OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, 35 C.P.C. (8th) 352, another ruling discharging a jury. The reasons attached the respondents’ list of objections but did not explain which challenged comments were prejudicial and why. Despite this, in a paragraph that is an unattributed block quote from OZ Merchandising, the trial judge concluded that the Penates’ counsel made many improper comments that were cumulatively impossible to correct and required discharging the jury because any corrective instruction would have been “unwieldy and ineffective.”

[16] The trial judge later dismissed the Penates’ action. In her reasons for judgment, she found that the respondents neither caused Norman’s brain injury nor, aside from Dr. Liu’s failure to document her actions, breached the standard of care. According to a chart provided by the Penates, whose accuracy the respondents did not seriously contest, more than 90% of her reasons were copied verbatim or substantially verbatim from the respondents’ submissions.

....

(1) The Law on Discharging the Jury and Providing Adequate Reasons

[18] Subject to certain exceptions that are not at issue here, civil litigants in the Superior Court of Justice have a statutory right to trial by jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108. This is a fundamental substantive right, meaning that the justice system protects it because it is inherently important and is not merely a procedural means to a verdict: King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, at p. 533; Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 64; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 94, per Moldaver and Brown JJ. Because of this right’s substantive nature and importance, trial judges should not lightly interfere with it; discharging the jury is a drastic remedy of last resort: King, at p. 533; Hunt (Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.), at para. 73; St. Marthe v. O’Connor, 2021 ONCA 790, 159 O.R. (3d) 148, at para. 47, leave to appeal refused, [2022] S.C.C.A. No. 262; Vanderbeke v O'Connor, 2013 ONCA 665, at para. 18.

[19] A trial judge’s decision to discharge a civil jury to remedy prejudicial conduct on the part of counsel during a trial is discretionary. This Court has adopted a two-step test to guide trial judges’ exercise of discretion. The trial judge must determine that: (1) counsel’s comments prejudiced the opposing party, and (2) the prejudice was so severe that issuing a corrective instruction to the jury would not cure it: St. Marthe, at para. 46, citing Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, at paras. 17 & 23. A party seeking to discharge the jury has a heavy burden and the trial judge must find that there are substantial reasons for discharging the jury: Hunt, at para. 73. In most cases, discharging the jury is not appropriate because the trial judge can instead issue an instruction correcting the prejudicial statements: St. Marthe, at para. 46; Hamstra, at paras. 23-25. Juries are generally capable of following such instructions, which can often remedy inflammatory statements and misstatements of the evidence: Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 105-107; Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at paras. 24-27; Hamstra, at paras. 23 & 25; Groen v. Harris, 2010 ONCA 621, at para. 5.

[20] Appellate deference to the trial judge’s decision to discharge the jury requires adequate reasons. If the reasons are adequate, this Court will not interfere unless the appellant shows that the trial judge acted on a wrong principle, arbitrarily, capriciously, or unreasonably: Placzek v. Green, 2012 ONCA 45, 287 O.A.C. 38, at para. 6, leave to appeal refused, [2012] S.C.C.A. No. 100. However, no appellate deference is owed if the reasons are inadequate or do not exist: Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at paras. 13 & 44.

....

[29] Second, the trial judge’s statement that a corrective instruction would be inadequate is also conclusory and fails to explain her decision on the second step of the two-part test. Because discharging the jury is a remedy of last resort and corrective instructions are generally effective at remedying prejudice, trial judges who decide to discharge a jury must adequately explain why corrective instructions would be insufficient. Instead of doing so, the trial judge’s reasons merely copy-pasted the conclusion from OZ Merchandising that the cumulative effect of the misstatements made a corrective instruction unwieldy and ineffective. In OZ Merchandising and the respondents’ other cited authorities, the trial judge in each case cogently explained the conclusion that a corrective instruction would be inadequate: see OZ Merchandising, at para. 56-57; St. Marthe, at para. 49; Groen, at paras. 4-6. The absence of such an explanation in the trial judge’s reasons leaves this Court to guess at why, despite caselaw establishing that corrective instructions can often remedy inflammatory comments and misstatements of the evidence (see, e.g., Landolfi, at paras. 105-107; Brochu, at paras. 23 & 25; Groen, at para. 5), a corrective instruction would have been inadequate.

[30] The trial judge’s reference to the cumulative effect of the misstatements is also inadequate because she did not identify which statements were prejudicial. Without knowing which and how many statements the trial judge found to be prejudicial, this Court cannot meaningfully review her conclusion that their cumulative effect made remedying them by corrective instruction impossible.

....

[36] Because the right to a jury trial is fundamental, there generally must be a new trial when a party is improperly deprived of that right. This rule has a narrow exception: an appellate court can decline to order a new trial if any reasonable jury would have inevitably reached the same result the trial judge did: Kempf, at para. 67.

[37] I would reject the respondents’ argument that this narrow exception applies. This was a complex case with competing expert testimony and key fact witnesses whose credibility and reliability were at issue. Nothing about its outcome was inevitable. In particular, Dr. Liu’s credibility and reliability was at issue because she never documented the rupturing of the amniotic sac and the subsequent emergency, as she acknowledged she should have done. While the trial judge accepted her evidence that she followed the correct steps and neither knew nor should have known that Norman’s head was not sitting low in the pelvis, a jury could have disbelieved her and relied on the lack of documentation to find that the correct steps were not followed: see, e.g., Ghiassi v. Singh, 2017 ONSC 6541, at para. 25, aff’d 2018 ONCA 764. The jury could have also relied on the Penates’ expert evidence to infer that a failure by Dr. Liu to take correct steps caused Norman’s brain injury even though the trial judge did not draw that inference. Because Dr. Liu’s actions were intertwined with those of the other respondents, there must be a new trial as to all respondents.
. Coban v. Declare

In Coban v. Declare (Div Ct, 2020) the Divisional Court considered a leave to appeal application of a motion to strike a jury notice:
[1] Leave to appeal is refused. As acknowledged in the Reply Factum, the broad issues raised by motions to strike jury notices in the context of the Covid-19 pandemic have recently been considered by this Court (see: Louis v. Poitras, 2020 ONSC 6907 (CanLII)). This case does not present any reason to revisit those issues so soon after.

[2] That case made clear that motions to strike juries should consider not only the immediate impact on the parties involved (“the overarching concern has been to provide justice to the parties”) but also concerns for the impact on the broader administration of justice. In the interim the situation has changed. On November 21, 2020, a further Notice to the Profession was issued by the Office of the Chief Justice. In view of the public health situation, effective Monday, November 23, 2020, no new jury selection was to commence in any court location except in those in a Green Zone as defined by the Ontario Government as of the date of the Notice (November 21, 2020). Ottawa was not, and is not, a Green Zone. The Notice advised that this restriction would remain in effect until at least January 4, 2021 with an update to be issued on December 29, 2020. Thus, the uncertainty with respect to when any jury trial may be available is increased. This is more the case for civil juries. Unlike criminal cases, there is no constitutional imperative that they be provided (see: Charter of Rights and Freedoms, s. 11). Generally, the Court has recognized the greater importance in providing jury trials in criminal cases.
. Kempf v Nguyen

In Kempf v Nguyen (Ont CA, 2015) the Court of Appeal canvassed principles applicable to striking a jury notice in a civil trial:
[41] The right to a trial by jury in civil actions is set out in s. 108(1) of the Courts of Justice Act:
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.
[42] Section 108(2) contains a list of claims for relief that cannot be tried by a jury. Declaratory relief is one such claim.

[43] 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, [2006] 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), [1956] 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”.

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, [1985] 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.”
[44] 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.






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Last modified: 04-03-24
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