Striking a jury notice / “wait and see” approach – ONSC

Having the right to a trial by jury is a substantive right and applying to court to strike a jury notice is not an easy application.  Cogent reasons must be presented to succeed in such an application.

We review an Ontario Superior Court of Justice decision in which a Defendant applies to strike a jury notice filed by the Plaintiff in a medical malpractice claim.  In this article, I would outline the arguments raised by the Defendant in support to this application, including the arguments countered by the Plaintiff in support of their position that the jury notice should stand.

We will also review the leading authority on the topic of trial by jury.

To begin, the referenced case is McIsaac v. MacKinnon, 2019 ONSC 2954 (CanLII).  This case is a medical malpractice claim which resulted in the alleged mistreatment of the infant Plaintiff after he was born.  This specific action is as against one paediatrician involved in the infant Plaintiff’s claim.  There are no further Defendant’s in this claim.  As noted in this decision, the claim is that “the defendant failed to diagnose and treat the plaintiff in a timely manner following receipt of certain test results, and that this negligence caused the plaintiff’s severe developmental disabilities. The infant plaintiff’s parents are also plaintiffs in this action.”

Defendant’s Arguments to strike the jury notice

  • Relevant authority 108 (3)of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 47.02(2) of the Rules of Civil Procedure
  • the trial will involve complex factual and legal issues relating to an alleged delay in the treatment of the plaintiff’s rare metabolic disorder, Transcobalamin II deficiency, or TCII
  • this is a rare disorder;
  • complexity of this disorder renders this case unsuitable for a trial by a jury;
  • the issue of causation will be complex as the trier of fact must analyze highly complicated and sophisticated scientific concepts to understand this rare disorder
  • the trier of fact will encounter complex analysis of the mechanism by which the disorder impacts the entry of vitamin B12 into the body’s cells
  • there is sharp disagreement between the experts on the impact of a delay in treatment
  • this disagreement will require reference to a significant volume of complex medical literature
  • the trier of fact will need to develop and retain a deep understanding of this rare condition
  • a clear understanding is required to understand the medical literature, including the expert evidence relevant to causation.
  • this case is not suitable for a jury
  • justice will be better served by having the trial heard by a Judge alone.
  • Causation and damages trial will last 4 to 5 weeks alone
  • multiple expert witnesses will be called
  • damages in the amount of $25 million is being claimed in this case

Plaintiff’s arguments

  • although the condition is rare, that does not suggest this case is complex
  • the defence application to strike the jury notice is premature
  • the legal and factual issues in this case are not more complex than other medical malpractice case
  • the disagreement among the experts in this case does not make this a complex case
  • the damages issues in this case are the kind that are regularly decided by juries.
  • there is only one remaining defendant in this case
  • there are not multiple defendants pointing fingers at each other which may create confusion

The Law

[11] Ontario Court of Appeal in Kempf v. Nguyen, 2015 ONCA 114 (CanLII), at para. 43. The relevant principles to be applied by the judge hearing the motion are:

  • 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;
  • 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;
  • 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;
  • 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;
  • 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; and
  • 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 Actand the Rules of Civil Procedure, contemplate that a judge may strike a jury notice even before a trial has begun.

[12]  In Kempf, the Court of Appeal concluded that the trial judge decided to strike the jury (at para. 54) “primarily on the basis of her apprehension that the jury would not be able to understand the limited use they could make of the waiver”. The Court of Appeal noted, at para. 59:

To determine liability the jury would have to sift through the often conflicting evidence, make findings of fact and apply the law as explained to them by the trial judge.  This is what juries do every day.

The Court of Appeal concluded that this was a case in which the “wait and see” approach would have been more appropriate. The Court stated, at para. 64:

[13] In my view, it would have been preferable for the trial judge to have reserved her decision on the motion until after the evidence had been completed, as Nguyen’s counsel urged her to do, or, perhaps, until a discrete problem arose. As the cases emphasize, the “wait and see” approach is generally preferred.  I say so for two reasons.  From a practical perspective, often the anticipated complexities of a case or other concerns giving rise to the motion to dismiss a jury do not materialize. From a principled perspective, the right to a jury trial is a fundamental, substantive right that should not be interfered with except for very cogent reasons:  Cowles, at para. 70.

[14] The “wait and see” approach is based on the premise that it is usually “preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted”, see: Cowles v. Balac, 2006 CanLII 34916 (ON CA), at para. 70. While the “wait and see” approach is not a rule of law, the Court of Appeal has consistently noted that it is the “preferable” and “most prudent” approach, see: Kempf at para. 65 and Cowles at paras. 70 – 72. As the trial unfolds, it may be that not all of the expert witnesses will be called, or, despite the complexity of the background science, the experts are able to explain the basis of their different opinions in language that is accessible to the average juror.

[15] Given the Court of Appeal’s decision in Kempf, Dow J. observed in Ma v. RBC Life Insurance Company, 2016 ONSC 6417 (CanLII), at para. 13:

It will be the rarest of situations and only in the clearest of cases where a party can successfully argue a jury notice should be struck in advance of the trial.


[16]  In my view, this case does not justify departing from the “wait and see” approach preferred by the Court of Appeal. At this point it remains speculative whether the expert evidence, and the manner in which it is presented at trial, will be too complex or confusing for the jury to comprehend.

[17]  As such, I will follow the “prudent” course and reserve my decision on this motion until after the evidence has been completed. At that point, counsel for the defendant may renew his motion to strike the jury if he remains of the view that justice will be better served by having the trial decided by a judge alone. We will wait and see. 

See Disclaimer in About Page