Subject to the exceptions for certain claims prescribed by the Courts of Justice Act, either the plaintiff or the defendant in a civil action may elect to have a matter decided by way of judge and jury, as opposed to judge alone. However, this right is not absolute. A party electing to proceed by way of judge and jury must ensure they meet the procedural requirements set out in the Rules of Civil Procedure.Even if the electing party meets these requirements, the opposing party may bring a motion to strike the jury notice on the basis that the action ought to be heard by a judge alone (i.e. a jury trial would be inappropriate in the circumstances).
Rule 47 of the Rules of Civil Procedurerequires a party who elects for a matter to be tried by judge and jury to deliver a Jury Notice before the close of pleadings. If the electing party fails to deliver the Jury Notice before the close of pleadings, the opposing party may bring a motion to strike the jury notice.
As noted by the Court in Leadbetter v Nor,2016 ONSC 5289, a party who wishes to deliver a jury notice after the close of pleadings must first seek leave of the Court, or bring a motion to extend the time to serve and file a jury notice. If the electing party fails to do so, the opposing party may bring a motion to strike the jury notice pursuant to Rule 47.02(1)(b).
Where a Jury Trial is Inappropriate
Even in cases where a party has delivered a jury notice before the close of pleadings, the opposing party may still bring a motion to strike the jury notice under Rule 47.02(2), on the basis that a jury trial would be inappropriate in the circumstances of the case, and the matter ought to be heard by judge alone.
On a motion to strike a jury notice, the onus is on the moving party to demonstrate that justice would be better served by striking the jury notice. This onus has been described by the Court as “substantial” because trial by jury is a fundamental right. That said, in Girao v Cunningham,2020 ONCA 260, the court was clear that while the right to a trial by jury is fundamental, “it is not absolute and must sometimes yield to practicality.”
In cases of alleged medical malpractice, the grounds for striking a jury notice are often that the matter is too complex for a jury trial. Complexity relates to both the facts and evidence, as well as to the legal principles and issues at play in the case. In Cowles v Balac,  OJ No 4177 (QL), 83 OR (3d) 660, the court explained the rationale behind this principal being that “a judge, because of his or her legal training and experience, may be better able to render justice in a case that is complex [as opposed to a jury].”
Cases involving allegations of professional negligence or medical malpractice are often of a highly technical nature, and require expert evidence as to both the standard of care and causation. There is often also expert evidence with respect to damages. In cases of alleged malpractice by a health care professional, it is not uncommon for each party to have multiple expert reports.
In Girao v Cunningham, the Court found that a party being self represented is an additional factor that may increase the complexity of the case. While the fact that a party is self-represented will not always render a matter too complex for a jury, it is nonetheless a factor for consideration.
Whether the circumstances of a particular case are of a degree of complexity such that the matter ought to be heard by judge alone is a matter of judicial discretion. As stated in Cowles v Balac,“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.”Rather, the judge must consider the overall legal, factual and evidentiary complexity in reaching a decision.
As in Cowles v Balac,it will often be an accumulation of factors that justify striking a jury notice. In that case, there were considerable factual and evidentiary complexities with disputed expert reports on issues of both liability and damages. There were numerous medical professionals to be called as witnesses, and trial was expected to take at least 6 weeks. These factors, among other things, led the trial judge to conclude that justice was better served by proceeding to trial by judge alone.
In conclusion, a party in an action for alleged medical malpractice who does not wish to proceed to trial by way of judge and jury can move to strike the jury notice on two bases. They may attack the electing party’s failure to serve the jury notice in accordance with the Rules of Civil Procedure, or argue that justice would be better served by striking the jury notice and proceeding to trial by judge alone. In cases of alleged medical malpractice, the argument is often that the legal issues, facts, and evidence are too complex for trial by judge and jury.
By: Victoria Tremblett
At Wise Health Law, we defend health professionals in civil litigation, including in cases involving professional negligence and medical malpractice.
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