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Dismissing the Jury: Insurers May Find Their Request for a Jury Set Aside by the Court

Dismissing the Jury: Insurers May Find Their Request for a Jury Set Aside by the Court
Author: Richard M. Bogoroch Author: Kate Cahill

This article, featured in The Lawyers Weekly, discusses how the Ontario Superior Court of Justice recently concluded that the province’s rules allowing judges to discharge juries in civil actions do not infringe the Charter.


The Ontario Superior Court of Justice recently concluded that the province’s rules allowing judges to discharge juries in civil actions do not infringe the Charter.

In Legroulx v. Pitre, [2008] O.J. No. 443, Daniel Legroulx was involved in a motor vehicle accident on Sept. 1, 2000. On Oct. 5, 2000, he suffered complete and permanent paraplegia while engaging in a high school soccer practice. The plaintiffs claimed that the motor vehicle accident was the sole cause or, alternatively, materially contributed to Daniel Legroulx’s paralysis. They asked for $4,000,000 in damages.

At the outset of trial, counsel for the plaintiffs moved to discharge the jury on the grounds of complexity. Justice Power dismissed the plaintiffs’ motion without prejudice to their right to renew it later.

The plaintiffs then called three medical experts, a neuro-radiologist, a paediatric haematologist and a paediatric neurologist. Following this, they renewed their motion to have the jury dismissed.

At this point, Justice Power dismissed the jury, stating: “During the testimony of these experts I closely observed the jurors and at least some of the jurors left me with the strong impression that they were having difficulty with the evidence … I had a significant concern that justice would not be done between the parties unless the jury was struck. I concluded that the complexities of the case would not be solved by any instructions that I might contemporaneously or subsequently give to the jury.”

The trial then continued as a judge-alone trial. However, during the course of the trial, the parties settled the action. They did so on the condition that Justice Power make an order to hear a special case to decide whether Rule 47.02(2) (which permits a party to move to strike out a jury notice) and Rule 47.02(3) (which provides trial judges with discretion to try actions without juries) of Ontario’s Rules of Civil Procedure are constitutionally valid.

Justice Power made the order to hear the constitutional question, and the Ontario Trial Lawyers’ Association and the Advocates’ Society were granted leave to intervene. The Attorney General of Ontario was invited to participate in the argument of the special case, but declined to appear.

Although Justice Power recognized that the right to trial by jury is an important and substantive right and that a jury should not be discharged prematurely, he was not persuaded by the defendant’s argument that Rules 47.02(2) and (3) or the jurisprudence that has developed around them permitting a judge to discharge a jury in a civil action, either before or at trial, contravene the Charter.

Justice Power concluded that even if the rules infringed the Charter, the infringements are reasonably justified because they function to protect the right to a fair trial for all parties to a dispute.

The question of whether to move to strike a jury is always a difficult issue for counsel. In his reasons, Justice Power quotes findings made by Justice Coulter Osborne in his 2007 Civil Justice Reform Project:

“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.”

Justice Power also noted that there has been a sharp increase in the use of juries in motor vehicle accidents and that evidence suggests that this trend is a result of the greater use of juries by defendants whose defences are conducted by insurance companies and the apparent tendency of juries in Ontario to award smaller damages than judges.

When considering whether a jury should be discharged, counsel should refer to Cowles v. Balac, [2006] O.J. No. 4177 (C.A.), the leading Ontario authority on setting aside a jury notice.

If counsel are dealing with discharging a jury on the basis of the complexity of the evidence, the trial judge may adopt a “wait and see” approach, which means that the motion will have to be renewed after the introduction of evidence. If opposing counsel has refused to provide copies of medical reports and experts’ reports to the jurors, then there will be a stronger argument that the jury should be discharged. In Legroulx, Justice Power’s decision to discharge the jury was influenced by the fact that he was given copies of the expert reports, and the jurors were not.

Legroulx provides some needed clarity on how and why to dismiss juries in civil actions.

(Featured in The Lawyers Weekly, October 24, 2008)