Court of Appeal for Ontario
Before: Laskin, Sharpe and Armstrong JJ.A.
Between:
Daniel Legroulx, Lise Legroulx, Ronald Legroulx and Philip Legroulx Plaintiffs (Respondents)
and
Eric M. Pitre and Diane Labrecque Defendants (Appellants)
Counsel: Todd J. McCarthy and Michael R. Switzer, for the appellants Henry S. Brown, Q.C. and Guy Regimbald, for the respondents Michael Eizenga and Sabrina Lombardi, for the intervener Advocates Society Allan Rouben, for the intervener Ontario Trial Lawyers’ Association
Heard and released orally: October 27, 2009
On appeal from the judgment of Justice Denis J. Power of the Superior Court of Justice dated February 11, 2008.
ENDORSEMENT
1This appeal concerns whether the power of a trial judge to discharge a jury in a civil case on grounds of complexity violates the Charter. In their factum, the appellants submitted that their ss. 7 and 15 Charter rights were violated by the trial judge’s order discharging the jury and proceeding with a judge alone trial. In oral argument, counsel limited their submissions to the alleged violation of the discharged jurors’ s. 15 rights. For the sake of completeness this endorsement will deal with both written and oral submissions.
2While we do not wish to be taken as agreeing with the trial judge’s decision to proceed with the Charter issue after the case was settled, we do agree with his conclusion that there was no breach of either s. 7 or 15 of the Charter.
3The Charter confers a right to a jury trial only in certain criminal matters. The Charter does not confer a right to a jury trial in civil matters and we see no merit in the submission that ss. 7 and 15 should be interpreted to confer such a right. In our view, the appellants’ claim that their ss. 7 and 15 rights have been denied exceeds by a very significant margin the reach of both the letter and the spirit of those Charter provisions.
4To make out a breach of s. 7, the appellants must show that
they have been deprived of their right to “life liberty and security of the person”; and
the deprivation was contrary to the principles of fundamental justice.
5The appellants have not established either of these two elements. The proposition that the jeopardy of the civil damages award faced by the appellants in this action, a purely economic interest, amounts to an interference with “life, liberty and security of the person” is unsupported by the authorities and contrary to the direction of s. 7 jurisprudence.
6We also reject the proposition that a trial judge’s discretion to discharge a civil jury is so vaguely defined as to constitute a denial of the principles of fundamental justice on the grounds of vagueness. The statute, rules and jurisprudence that govern the exercise of that discretion provide an intelligible standard and an adequate basis for legal debate and plainly meet the standard laid down by the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at p. 638-40.
7With respect to the alleged breach of s. 15, the appellants must show discrimination on an enumerated or analogous ground that creates or perpetuates disadvantage or stereotyping: Andrews v. Law Society v. British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483.
8The appellants have not made out discrimination on an enumerated or analogous ground. The class of civil defendants who are denied a jury trial does not form a group or share characteristics that can be identified by one of the enumerated grounds of discrimination or by any conceivable analogous ground.
9In oral argument counsel for the appellant focussed on the proposition that the right of a trial judge to discharge a jury on the grounds of complexity amounted to a breach of the discharged jury’s s. 15 rights. He submits that this amounts to discrimination on an analogous ground, namely, “non-lawyer-educated fact-finders”. We disagree. The alleged analogous ground simply identifies a randomly selected group of members of the public at large. This does not amount to an analogous ground under s. 15.
10Moreover, we do not agree that a rule that prefers a judge over a lay jury in complex cases demeans or stereotypes the jurors who are excluded within the meaning of Charter jurisprudence. The trial judge cannot strike a jury on a whim or on inadequate grounds. The trial judge is expected to give a reasoned explanation regarding why the case should not continue before a jury, and that decision is subject to review on appeal. Quite apart from the issue of whether the appellants have standing to raise the issue of the jury’s equality rights, we see no merit in the submission that those rights were violated.
11In the end, the appellants challenge the wisdom of retaining the long-standing rule permitting a trial judge to discharge a jury on grounds of complexity. That is simply not an issue to be determined on the basis of the Charter as no breach of Charter rights is engaged.
12Accordingly, the appeal is dismissed. In accordance with the agreement of counsel, there shall be no order as to costs.
“J.I. Laskin J.A.”
“Robert J. Sharpe J.A.”
“R.P. Armstrong J.A.”
