Law Times

Law Times • January 12, 2009 FOCUS PAGE 13 dividuals. The prospect of droning lawyers; irascible judges; incom- prehensible experts; arcane issues; competing realities from witnesses sworn to the truth combine with financial hardship; enforced sepa- ration of uncertain duration from family and daily duties; emotional strain; and sheer boredom can cre- ate a scenario that is something less than appetizing to many citizens. It's ironic then that there's a dis- cernible group in the profession that believes our system does not give juries their full due: that the limited scope for jury trials in civil cases and the power judges have to dismiss juries for fear that the facts or the issues are too complex for the common man or woman strikes at the very core of our legal system. "How do you justify telling fellow citizens that they're not up to snuff on matters of fact?" asks Todd McCarthy, a part- ner at Flaherty Dow Elliott & McCarthy's Whitby office. It was perhaps inevitable that a test of this belief would make its way to our courts. And so it did, in the case of Legroulx v. Pitre, de- cided last year by Ontario Superior Court Justice Denis Power. The case was unremarkable as a piece of civil litigation, a $4-mil- lion action for damages sustained as a result of catastrophic injuries sustained by Daniel Legroulx in a September 2000 motor vehicle ac- cident. McCarthy, who represents the defendants Eric Pitre and Di- ane Labrecque, served a jury no- tice, which was not challenged be- fore trial, and began in May 2007. Before opening statements or any evidence was given, Henry Brown, a partner at Gowling Laf- leur Henderson LLP's Ottawa office, who with associate Guy Régimbald acted for the plaintiffs, announced his intention to have the jury discharged on grounds of complexity. Power dismissed the motion with "some misgivings because, in- deed, the issue of causality did ap- pear to be very complex . . . How- ever, I did so without prejudice to the right of the plaintiffs to renew their motion at a later time." After this ruling, the plaintiffs led the evidence of a neuroradiolo- gist, a pediatric hematologist, and a pediatric neurologist, then renewed their motion to strike. This time Power granted the motion. "In my reasons I indicated that during the testimony of these ex- perts I closely observed the jurors and that at least some of the jurors left me with the strong impression that they were having difficulty with the evidence," Power wrote. "I held that the misgivings which I had expressed in my earlier rulings [regarding com- plexity] had crystallized and that I had a significant concern that justice would not be done be- tween the parties unless the jury was struck. I concluded that the complexities of the case would not be solved by any instructions I might contemporaneously or subsequently give to the jury." McCarthy responded by serv- ing a notice of constitutional ques- Is there constitutional right to a jury in civil cases? B BY JULIUS MELNITZER For Law Times eing chosen for jury duty is a task that delights few but the most civic-minded in- tion maintaining that the right to a jury in a civil action of this magnitude was protected by ss. 7 and 15(1) of the Charter. Power struck the jury but reserved the plaintiff's right to raise the consti- tutional issue at a later time. The trial continued judge alone for several days, and then was con- ditionally settled. The condition was that Power make an order for the determination of a constitu- tional question under Rule 22.01 of the Rules of Civil Procedure. Power agreed and ordered the determination of a constitutional question as to whether Rules 47.02(2) and 47.02(3), or the juris- prudence pursuant to these Rules that permitted judges to discharge juries on grounds of complexity, offended the Charter. He also allowed The Advo- cates' Society and the Ontario Trial Lawyers' Association to intervene. Barbara McIsaac and Helen Gray, a partner and asso- ciate at McCarthy Tétrault LLP's Ottawa office, respectively, ap- peared as counsel to The Advo- cates' Society, and Allan Rouben of Toronto acted for the OTLA. the "We took position that the provi- sions attacked were constitutional and that it was difficult to understand why any particular group of defendants would be disadvantaged by these rules," McIsaac says, noting the position of the in- tervenors shouldn't be taken as a stand against jury trials in general. "We are merely recognizing is consistent with Charter values," he said. "The Ontario Court of Appeal's Barbara McIsaac guidelines promul- gated in Cowles and earlier authorities do just that." As well, the de- fendants had failed to establish their right to inclusion under ei- ther ss. 7 of 15(1). "They have failed to demonstrate that there are circumstances in which jury trials are not appro- priate and that is an issue that is properly left to the judge," Mc- Isaac says. After extensive argument, Power ruled neither the impugned civil procedure rules or the jurisprudence offended the Charter. He reasoned the Rules fell within the province's power to legislate in relation to the administration of justice un- der s. 92(14) of the Constitution. "Courts, of course, should exercise their discretion in a manner which that there has been a deprivation of their life, liberty, or security of the person and the right not to be deprived thereof except in ac- cordance with the principles of fundamental justice," Power con- cluded. "Similarly, the defendants have failed to persuade me that, even if the Charter applies, Rules 47.02(2) and (3), s. 108(3) [of the Courts of Justice Act, which authorizes the Rules], and/or the jurisprudence concerning them are so vague as to deny them fundamental justice." As well, the defendants had failed to demonstrate that their right to a civil jury was a right analogous to the rights listed in s. 15(1) or that there was any conflict between the purpose of the impugned laws or jurisprudence and the purposes of that section. "None of the defendants, accused persons, or jurors, who the defendants argue are appropri- ate comparators are, in my view, appropriate," Power wrote. McIsaac supports the decision. "There may be all sorts of policy argument one way or the other, but it's hard to see how the issues raised here are Charter issues," she says. But McCarthy has appealed, and has requested a five-judge pan- el from the Court of Appeal. "It's an offensive notion that ju- rors can handle DNA evidence in a murder trial, but can't deal with medical evidence as to long-term diagnoses or causality," he says. "What this appeal puts squarely in place is whether lawyer-trained judges are better triers of fact than citizens and whether juris- prudence based on that notion marginalizes and demeans citizens who are not lawyers and is there- fore contrary to the Charter." LT Annotated Commercial General Liability Policy Mark G. Lichty and Marcus B. Snowden Learn how the courts interpret the most widely used liability insurance policy in North America. The authors provide a thorough clause-by-clause analysis based on the IBC Form 2100 CGL "occurrence" wording, complete with historical overview, scholarly commentary and analysis of case law from the insurer's and policyholder's perspective. 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