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Striking a Jury Notice

Will my case be heard by a jury?  I don’t even understand the legal complexities – what if the jury doesn’t, either? 

In an oral judgment from earlier this year, Justice Power opined on the plaintiff’s application to strike the defendant’s notice of trial by jury (Alagaratnam v Valenti, unreported).  The plaintiff had been injured in three collisions, which were to be heard together just one week after the application to strike the notice of trial by jury.

The striking an opposing party’s notice of trial by jury is governed by Supreme Court Civil Rule 12-6(5):

Court may refuse jury trial

(5)Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)  the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

(ii)  the issues are of an intricate or complex character, or

(iii)  the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action, or

(b) at any time for an order that the trial be heard by the court without a jury on the ground that the trial relates to a fast track action or to one of the proceedings referred to in subrule (2).

In the case at bar, the plaintiff argued that the case qualified on two grounds – both that the issues were too intricate and complex, and that the issues required prolonged examination of documents or accounts.  The complexity arose out of the number of collisions – the plaintiff had been in four.  One of those was entirely his own fault, and while it wasn’t the subject of any of the actions, would be relevant as to the cause of his injuries.  Another involved “hotly contested” liability issues.

Defence counsel argued that the overall issue was one of credibility, something well within the capacity of a jury to assess.  Plaintiff counsel, meanwhile, argued that the liability question tipped the scales of complexity and justified striking the jury notice.  Justice Griffin found in favour of the plaintiff, noting that “the law in relation to the effect of multiple accidents, liability apportionment and at-fault accidents is rather unsettled.”   She reviewed a few cases in which the assessment of damages in such cases had been approached differently, and noted that there was a “complication surrounding … such cases, even among judges…”

Accordingly, Justice Griffin was persuaded that the legal issue was sufficiently intricate or complex and ordered the withdrawal of the matter from a jury.

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