File No. 02-CV-21659
SUPERIOR COURT OF JUSTICE
BETWEEN
DANIEL LEGROULX, LISE LEGROULX,
RONALD LEGROULX, PHILLIP LEGROULX
Plaintiffs
-and-
ERIC M. PITRE, DIANE LABRECQUE
Defendants
FACTUM OF THE INTERVENOR
ONTARIO TRIAL LAWYERS ASSOCIATION
PART I – OVERVIEW STATEMENT
1.
This Special Case arises out of a decision of the Honourable Mr. Justice Powers to
discharge a jury on the basis that the action was too complex for the jury to decide. The Ontario
Trial Lawyers Association (“OTLA”) was granted leave to intervene in the Special Case. It is
OTLA’s respectful submission that the jurisprudence which governs the striking out of a jury notice
provides an adequate basis for legal debate and there is otherwise no basis on which to mount a
constitutional challenge to this jurisprudence. OTLA requests that the Special Case be dismissed.
PART II – THE FACTS
2.
This action arose out of a motor vehicle accident dated September 1, 2000. A jury notice
was delivered by the Defendants. At the opening of trial, the Plaintiffs brought a motion to
discharge the jury. The motion was dismissed with leave granted to renew the motion. After the
first three medical witnesses had been called, the motion to discharge the jury was renewed by the
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Plaintiffs. The learned trial judge granted the motion and discharged the jury on the grounds that the
medical evidence would be too complex for the jury to follow. In thoughtful reasons dated May 24,
2007, the learned trial judge held that with 35 years of legal training, six and a half years of judicial
experience and the use of reports as an aide memoire the evidence could be followed. The jurors
were not provided with the reports. The learned trial judge concluded that justice could not be done
between the parties if the action were to be tried by the jury. The Defendants thereafter brought this
constitutional challenge, claiming that Rule 47.02 of the Rules of Civil Procedure, section 108(3) of
the Courts of Justice Act and the jurisprudence which has developed thereunder, providing a
discretion to a judge to strike out a jury notice on the grounds of complexity, are contrary to
sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms. By order dated June 19,
2007, the Ontario Trial Lawyers Association and the Advocates’ Society were granted intervenor
status to participate in the Special Case. The action has since been settled.
Reference: Special Case Brief, Tabs 1, 3, 7-8.
3.
OTLA respectfully adopts the submissions of the Plaintiffs in respect of the constitutional
issues raised by the Defendants. In particular, it is OTLA’s respectful submission that: (a) the
concerns raised by the Defendants do not engage any interest protected by section 7 of the Charter;
(b) the impugned legislation and common law are in accordance with the principles of fundamental
justice; (c) the Defendants or jurors are not a historically disadvantaged group entitled to claim the
protection of section 15(1) of the Charter; and (d) the impugned legislation and common law are in
any event saved by section 1.
Reference: Factum of the Plaintiffs, paras. 51-73, 98-127.
4.
The focus of OTLA’s submission in this Special Case is in response to the proposition
advanced by the Defendants that the Rules of Civil Procedure and the common law interpreting the
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Rules are vague, arbitrary and unfair. These suggestions permeate the Defendants’ submissions in
respect of section 7 and section 1 of the Charter. OTLA respectfully rejects these suggestions.
Reference: Factum of the Defendants, paras. 18-20, 23, 31, 32(b), 33.
PART III – ISSUES AND LAW
Void for Vagueness
5.
Section 108(3) of the Courts of Justice Act provides that “On motion, the court may order
that issues of fact be tried or damages assessed, or both, without a jury.” Rule 47.02(3) of the Rules
of Civil Procedure provides that “Where an order striking out a jury notice is refused, the refusal
does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.”
Admittedly, the Rules do not provide much guidance on what constitutes a “proper case” to strike
out a jury notice. Indeed, O’Connor A.C.J.O. said as much in the recent decision of the Court of
Appeal for Ontario in Cowles v. Balac. The issue in this context however is whether sufficient
guidance is given to judges by the common law to make informed judgments on the circumstances
in which a jury notice should be struck out. OTLA respectfully submits that there is.
Rules of Civil Procedure, Rules 47.02(2)(3).
Cowles v. Balac (2007), 82 O.R. (3d) 660, 669 (C.A.)
6.
It is a principle of fundamental justice that laws not be so vague that they fail to provide any
guidance for those who enforce or decide the law. In the context of criminal statutes or regulatory
offences, there is good reason for this. Persons facing a loss of liberty are entitled to know the
conduct which may cause them to run afoul of the law. The Supreme Court of Canada has set out a
very high test for a finding that a law is unconstitutionally vague. As stated by Gonthier J. in the
leading case of R. v. Nova Scotia Pharmaceutical Society: “a law will be found unconstitutionally
vague if it so lacks in precision as not to give sufficient guidance for legal debate.”
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 643 (S.C.C.)
7.
In applying this test, the need for flexibility and the interpretive role of the Courts cannot be
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overlooked. As again stated by Gonthier J. in Ontario v. Canadian Pacific Limited: “Vagueness
must not be considered in abstracto, but instead must be assessed within a larger interpretive
context developed through an analysis of considerations such as the purpose, subject matter and
nature of the impugned provision, societal values, related legislative provisions, and prior judicial
interpretations of the provision. Only after exhausting its interpretive role will a court then be in a
position to determine whether an impugned provision affords sufficient guidance for legal debate.”
Ontario v. Canadian Pacific Limited, [1995] 2 S.C.R. 1031, 1070 (S.C.C.)
8.
Gonthier J. makes the important point that those who draft legislation by necessity are often
required to frame legislation in broad terms. He quotes with approval from an academic paper on
the subject as follows: “Accordingly, legislators face a dilemma: they must pay particular attention
to and identify the core commonalities of the fact situations they do wish to legislate against (which
becomes embodied within statutes), while at the same time not neglecting to anticipate and provide
for variations on those fact situations, which may occur in the future….The usual solution to this
dilemma is to fall back on general language, which is adequate to cover the particular situations
envisaged, and which holds out the possibility of catching unforeseen variations. This strategy can
often lead to broadly expressed statutory language, with the danger that it may apply to too much
activity – the problem of overbreadth – or that it will not be expressed in concrete enough terms –
the problem of vagueness. In such instances, however, the expectation of legislators will invariably
be that the courts will flesh-out the generality of the provisions through interpretation based upon
experience. [Emphasis added; italics in original text.]”
Ontario v. Canadian Pacific Limited, [1995] 2 S.C.R. 1031, 1071 (S.C.C.)
9.
With this consideration in mind, Gonthier J. went on to state: “The use of broad and general
terms in legislation may well be justified, and s. 7 does not prevent the legislature from placing
primary reliance on the mediating role of the judiciary to determine whether those terms apply in
particular fact situations. I would stress, however, that the standard of legal precision required by s.
7 will vary depending on the nature and subject matter of a particular legislative provision. As I
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stated in Nova Scotia Pharmaceutical Society, supra, at p. 627: ‘Factors to be considered in
determining whether a law is too vague include (a) the need for flexibility and the interpretive role
of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being
more appropriate and (c) the possibility that many varying judicial interpretations of a given
disposition may exist and perhaps coexist….’”
Ontario v. Canadian Pacific Limited, [1995] 2 S.C.R. 1031, 1071 (S.C.C.)
10.
In the circumstances here, the legislature is seeking to ensure that the parties receive a fair
trial in the myriad number of causes of action and factual circumstances in which a jury notice
might be delivered. While Rule 47.02(3) speaks in terms of a “proper case” the guiding principle is
“whether justice to the parties will be better served by the discharge or retention of the jury.”
Graham v. Rourke (1990), 75 O.R. (2d) 622, 625 (C.A.)
11.
In determining whether the legislature has provided sufficient guidance for legal debate, the
words of O’Connor A.C.J.O. on behalf of the majority in Cowles v. Balac are particularly apposite.
He said: “While that test confers a rather broad discretion on a court confronted with such a motion,
it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the
parties, nothing more. It makes sense that neither party should have the unfettered right to
determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should,
when a disagreement arises, have the power to determine whether justice to the parties will be
better served by trying a case with or without a jury.”
Cowles v. Balac (2007), 82 O.R. (3d) 660, 670 (C.A.)
12.
Judges called upon to decide a motion to strike out a jury notice start with a presumption
that the right to a jury is an important substantive right. There is an onus on the moving party to
demonstrate that the factual or legal issues in dispute warrant the discharge of the jury. Judges are
cautioned not to decide the issue prematurely, but rather to wait and see if the complexities asserted
by the moving party actually materialize. They also have available to them as a guidepost a wealth
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of accumulated decisions in which the complexities of individual cases have been examined. In
addition, judges have their individual knowledge, experience and familiarity with the issues in
dispute to test against previous cases and the applicable legal standard. This is the daily method of
judicial decision making in our common law legal tradition. The standard of a “proper case” falls
well within this judicial experience and is a more than adequate guide for legal debate, particularly
in view of the jurisprudence which has developed interpreting this phrase.
Burton v. Harding, [1952] 3 D.L.R. 302 (Ont. C.A.)
Hunt v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.)
13.
In his dissenting reasons in Cowles v. Balac, Borins J.A. cites a number of cases in which
the Court of Appeal has overturned decisions to strike out a jury notice on grounds of complexity.
Medical malpractice cases, once thought to be inappropriate for a jury, are now routinely tried with
a jury. Employment law cases, including those with issues of aggravated or punitive damages, are
also suitable for determination by a jury. The presence of difficult issues of mixed fact and law is
not by itself a reason to discharge a jury. As the jurisprudence in this area indicates, it is indeed the
case that the right to trial by jury has been “jealously guarded” by the Courts.
Cowles v. Balac (2007), 82 O.R. (3d) 660, 692-702 (C.A.)
14.
The cautious approach is exemplified by the decision of the learned trial judge in this case.
The motion to strike out the jury was dismissed at the outset of trial. A wait and see approach was
adopted and it was only after three medical witnesses had testified on “subtle” and “fundamental”
medical issues that a decision was made to strike out the jury. The complicated issues gave rise to a
“significant concern” that justice could not be done if the jury were to be retained. The Defendants
have not appealed the decision nor do they take issue with it. Yet, the blanket declaration the
Defendants seek by way of this Special Case would mean that the learned trial judge here, and
future judges reaching a conclusion as to the impossibility of a fair trial being had between the
parties, would not have the means to strike out the jury. This would have a significant impact on the
administration of justice. It would mean that a judge would be powerless to prevent a trial he or she
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considered to be unfair. It is also to be expected that more appeals claiming perverse jury verdicts
would be brought. These are inherently difficult, as the jury is not required to give reasons and
cannot be interviewed after the fact. It is respectfully submitted that the position advanced by the
Defendants, if accepted, would have detrimental implications for the administration of justice.
15.
The interests at issue here are fair trials for the parties to a civil dispute. There is no liberty
interest or issue of security of the person. While the Defendants refer to a party facing “a multimillion dollar judgment” and raise the spectre of the contempt power being used, undoubtedly to try
and invoke such interests, the fact is that Rule 60.11(1) provides that a contempt order cannot be
made to enforce an order for the payment of money.
16.
If it is found that there is no interest protected by section 7 at stake, the analysis would end
there. In any event, as stated by Gonthier J., the standard of precision of a legislative enactment
depends on the nature of the subject matter in issue. Given that the subject matter in issue here is
the right to a fair trial, and given that neither party should have the unfettered right to decide the
mode of trial, it follows that the standard of precision cannot be as high as it would be for an
enactment of a criminal or regulatory infraction. It is respectfully submitted that section 108(3) of
the Courts of Justice Act, Rule 47.02(3) and the jurisprudence which has developed thereunder
more than meet the necessary standard of precision in this context.
Fundamental Justice
17.
The principles of fundamental justice referred to in section 7 comprise the basic tenets of
our legal system, including procedural fairness, natural justice and a fair and impartial hearing. A
trial by judge alone clearly satisfies these requirements. In the absence of a right to a jury trial
specifically provided for in the Charter, as in section 11(f), it cannot be said that a trial by judge
alone is constitutionally invalid. The Supreme Court of Canada has recently held that there is no
constitutional right to an appeal or access to the legal system with a lawyer, where not specifically
provided for. By analogy, it cannot be said there is a constitutionally protected right to trial by jury.
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Charkaoui v. Canada (Citizenship and Immigration), 2007 S.C.C. 9 (S.C.C.)
British Columbia (Attorney General) v. Christie, 2007 S.C.C. 21 (S.C.C.)
18.
The touchstone of our civil justice system is fairness to both parties to a civil dispute. This
does not guarantee the mode of trial that one of the parties wishes to have or considers to be
advantageous. Where the interests of a fair trial may be compromised, the mode of trial must
ultimately be left in the hands of an impartial arbiter to make a decision guided by legal standards.
The parties can expect nothing more. As stated by the Supreme Court of Canada in the context of a
challenge to tobacco legislation, but in language that applies with equal force here: “Additionally,
the appellants’ conception of a fair civil trial seems in part to be of one governed by customary rules
of civil procedure and evidence. As should be evident from the analysis concerning judicial
independence, there is no constitutional right to have one’s civil trial governed by such rules.
Moreover, new rules are not necessarily unfair. Indeed, tobacco manufacturers sued pursuant to the
Act will receive a fair civil trial, in the sense that the concept is traditionally understood: they are
entitled to a public hearing, before an independent and impartial court, in which they may contest
the claims of the plaintiff and adduce evidence in their defence. The court will determine their
liability only following that hearing, based solely on its understanding of the law as applied to its
findings of fact. The fact that defendants might regard that law (i.e. the Act) as unjust, or the
procedural rules it prescribes as unprecedented, does not render their trial unfair. The Act does not
implicate the rule of law in the sense that the Constitution comprehends that term. It follows that
the Act is not unconstitutional by reason of interference with it.”
British Columbia v. Imperial Tobacco Limited, [2005] 2 S.C.R. 474, 504-505 (S.C.C.)
Equality
19.
Section 15(1) of the Charter is designed to protect historically disadvantaged groups, to
prevent discrimination and to preserve human dignity. In order to establish a breach of section
15(1), the Defendants must demonstrate that the challenged law imposes a disadvantage on them in
comparison to other comparable persons; the disadvantage is based on a ground listed in or
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analogous to a ground listed in section 15(1); and the disadvantage constitutes an impairment of
their human dignity. The grounds listed in section 15(1) are race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability. The Supreme Court of Canada has held that an
analogous ground is one based on “a personal characteristic that is immutable or changeable only at
unacceptable cost to personal identity.”
Corbiere v. Canada, [1999] 2 S.C.R. 203, 219 (S.C.C.)
20.
Professor Peter Hogg has commented on the significance of the restriction of section 15(1)
to listed and analogous grounds in terms that are apposite to this case: “The limitation of s. 15 to
listed and analogous grounds restricts judicial review to laws that distinguish between individuals
on the basis of their inherent attributes as opposed to their behaviour. Section 15 has nothing to say
about laws that make special provision for those who have committed a crime, made a will, entered
into a contract, become insolvent, manufactured food or drugs, joined the legal profession,
purchased a taxable good or service, etc. It is true individuals may claim to be treated unfairly by
the law for conditions that are their own responsibility, but this kind of claim even if fully justified
does not warrant a constitutional remedy. This kind of claim is the daily fare of politics, and is best
remedied not by judges but by elected and accountable legislative bodies. What does warrant a
constitutional remedy is the claim that a law has treated an individual unfairly by reason of a
condition over which the person has no control. In that case, forces of prejudice may well have
distorted the democratic political process, and it is appropriate for judges to review the law.”
Peter W. Hogg, Constitutional Law of Canada (Carswell, looseleaf, 5th Edition) p. 55-22.
21.
It can be seen from these authorities that the claims of the Defendants under section 15(1)
cannot withstand scrutiny. The status of Defendants and jurors called to service in respect of a civil
claim can in no sense be classified as immutable personal characteristics. Nor can it in any way be
said that the striking out of a jury notice where found necessary to ensure the fairness of a trial
violates the essential human dignity of Defendants or jurors. It is respectfully submitted that the
submissions made by the Defendants in respect of section 15 of the Charter are misconceived.
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Reasonable Limits Demonstrably Justified
22.
In the event it should be found that section 7 or 15(1) have been violated by the impugned
legislation and common law, it is submitted that they are saved by section 1 as reasonable limits
demonstrably justified in a free and democratic society. As indicated above, the interest sought to
be protected by the legislation is the right to a fair trial for the parties to a civil dispute. This is
undoubtedly a pressing and substantial concern. The means adopted by the legislature to protect that
right, namely providing discretion to a Judge to strike out a jury in circumstances where justice to
the parties requires it, is rationally connected to that purpose. Finally, the means chosen impair the
right to a jury trial as little as possible, in that an order striking out a jury notice can only be made
by a Judge after a full hearing on the merits of the request, with the benefit of authorities and
guidelines set out in previous cases. Based on the authorities, the Judge is cautioned that the right to
trial by jury is an important and substantive right and that the jury should not be discharged
prematurely. There is a right of appeal of the Judge’s decision. It is respectfully submitted that Rule
47.02(3), section 108(3) of the Courts of Justice Act and the jurisprudence which has developed
thereunder, if found to be in breach of the Charter, are reasonable limits, prescribed by law and are
demonstrably justified in a free and democratic society.
R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.)
PART IV – ORDER REQUESTED
23.
It is respectfully requested that the Special Case be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
ALLAN ROUBEN
Solicitor for the Intervenor
Ontario Trial Lawyers Association
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SCHEDULE A – LIST OF AUTHORITIES
1.
Cowles v. Balac (2007), 82 O.R. (3d) 660 (C.A.)
2.
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 (S.C.C.)
3.
Ontario v. Canadian Pacific Limited, [1995] 2 S.C.R. 1031 (S.C.C.)
4.
Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.)
5.
Burton v. Harding, [1952] 3 D.L.R. 302 (Ont. C.A.)
6.
Hunt v. Sutton Group Incentive Realty Inc. (2002) 60 O.R. (3d) 665 (C.A.)
7.
Charkaoui v. Canada (Citizenship and Immigration), 2007 S.C.C. 9 (S.C.C.)
8.
British Columbia (Attorney General) v. Christie, 2007 S.C.C. 21 (S.C.C.)
9.
British Columbia v. Imperial Tobacco Limited, [2005] 2 S.C.R. 474 (S.C.C.)
10.
Corbiere v. Canada, [1999] 2 S.C.R. 203 (S.C.C.)
11.
Peter W. Hogg, Constitutional Law of Canada (Carswell, looseleaf, 5th Edition)
12.
R. Oakes, [1986] 1 S.C.R. 103 (S.C.C.)