Court File and Parties

COURT FILE NO.: 24731/09

DATE: 2012-10-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WANDA OLIVIER

Plaintiff

– and –

803295 ONTARIO INC., O/A PAT AND MARIO’S RESTAURANTS INC.

Defendants

Counsel: O. Rosa, for the Plaintiff S. Shoemaker, co-counsel M. Nanne, for the Defendants

HEARD: September 11, 12, 13, 17 and 18, 2012

DECISION ON MOTION TO STRIKE THE JURY NOTICE AND DISCHARGE THE JURY

JUSTICE E. GAREAU:

Reasons for Decision

[1] This action involves a slip and fall which occurred on March 1, 2008 where the plaintiff fell at the restaurant owned by the defendant and sustained an injury to her right arm.

[2] Both liability and damages are in dispute in this action.

[3] The matter proceeded to trial on September 10, 2012 in the presence of a jury. Evidence was heard on September 11, 12, 13, 17, and 18, 2012. After the evidence was completed, the plaintiff brought a motion to strike the jury notice and discharge the jury. That motion was argued on September 19, 2012 with a decision rendered on September 20, 2012 with the notice of motion endorsed as follows:

“For written reasons to follow, the jury is discharged and this trial will proceed without a jury.”

[4] With that decision, the court formally addressed the jury and discharged them. This action then continued without a jury and the court received the final submissions of counsel and reserved its decision.

[5] These Reasons set out why the court discharged the jury.

[6] Partway through the trial, on the third day of evidence, the plaintiff’s counsel indicated to the court that he was going to bring a motion to strike the jury notice and to discharge the jury. This was after the defendant called its first witness as part of its case. The court adjourned in the early morning so this could be considered, but before the court had to adjudicate on this, counsel indicated that they had come to an agreement that the evidence of the defendant’s first witness, Lisa Jones, would be excluded and that the jury would be instructed by the court to disregard her evidence in its entirety. The jury was so instructed and the trial proceeded.

[7] I indicated to counsel, in the absence of the jury, that I had decided to grant a motion to discharge the jury and proceed with the trial in the absence of a jury. That early difficulty with the evidence in the trial is important in understanding how a decision was arrived at to dismiss the jury later on in the proceeding after all the evidence was heard.

[8] I was uncomfortable in allowing the trial to proceed with a jury after the evidence of Lisa Jones was heard by the jury, but I was prepared to accede to the request by counsel that the trial proceed with the jury upon my instructions to the jury to ignore and disregard the evidence of Lisa Jones. I was aware that the court cannot discharge a jury on its own initiative. (Cosford v. Cornwall, 1992 9 O.R. (3d) Ont. C.A.)

[9] Lisa Jones was called as the first witness for the defendants. Ms. Jones was employed as the floor manager at the defendant restaurant and was working on March 1, 2008 when the plaintiff fell. Ms. Jones described a different route travelled from the restaurant to the back room then described by the plaintiff and her niece, Vicky Naletto. In addition, in her evidence, Lisa Jones indicated that she saw the plaintiff, Wanda Oliver, fall and Ms. Jones described to the jury how Ms. Olivier fell.

[10] None of these details of this evidence given by Lisa Jones was disclosed to counsel for the plaintiff prior to Ms. Jones giving the evidence to the court in the presence of the jury.

[11] The plaintiff was led to believe from the examination for discovery of the owner of the defendant restaurant, George Moutsatsos, that there were no employees of the restaurant that witnessed the plaintiff’s fall and that Ms. Jones attended to the plaintiff only after her fall. At the discovery of Mr. Moutsatsos, there was also the statement made by counsel for the defendant that there was not any more information with respect to the defence of the claim other than what was provided by the evidence of Mr. Moutsatsos.

[12] Counsel for the defendant indicated to the court that the evidence of Lisa Jones was not known to him until 11:00 p.m. the evening prior to her testifying and that there was no opportunity to disclose her evidence to the plaintiff prior to her testimony.

[13] I am of the view that the defendant had an obligation to disclose the evidence of Lisa Jones to the plaintiff well prior to trial, especially given the nature of the evidence. It was not evidence which merely corroborated evidence already known to the plaintiff. Rather, it was evidence that related how Mrs. Olivier fell and what route she travelled to the back room where the fall occurred. This is essential to what has to be determined by the jury and, in my view, it should have been disclosed especially in view of the fact that the plaintiff was led to believe that there were no employees of the defendant restaurant that saw Wanda Olivier fall on March 1, 2008.

[14] The failure of the defendant to disclose this evidence seriously impaired the fairness of the trial. The matter was complicated by the fact that the jury heard a large portion of Lisa Jones’ evidence in-chief before the objection was made by counsel for the plaintiff in the absence of the jury.

[15] At that point in the trial, it appeared to me that there were only four potential options to rectify the difficulty created by the non-disclosure of Ms. Jones’ evidence by the defendant. The options I considered were as follows:

(a) grant an adjournment to the plaintiff, if requested;

(b) exclude the evidence of Lisa Jones;

(c) grant a mistrial;

(d) strike the jury notice, discharge the jury and continue the trial by judge alone without a jury.

[16] At that stage of the trial, I did not see a benefit to adjourning the trial which would only inconvenience the jury and delay a finalization of the matter for the parties. I concluded that granting a mistrial would be extremely prejudicial to the plaintiff. The plaintiff is 85 years old with health difficulties. The plaintiff had a great deal of difficulty giving her evidence and it was obviously exhausting to her and taxing on her health. A mistrial would have resulted in Ms. Olivier having to go through the whole trial process again. In my view, such a result would bring the administration of justice into disrepute in the circumstances of this case.

[17] I had considered the option of excluding the evidence of Lisa Jones but after due consideration, I was not comfortable with this option. The jury had already heard the evidence of Lisa Jones as to the route the plaintiff travelled through the restaurant to get to the back room where the fall occurred and Ms. Jones’ version as to how the fall had occurred. I had concerns about the jury ignoring that evidence regardless of how careful and thorough my instructions might be to them in that regard. I was also concerned that the exclusion of the evidence of Lisa Jones would prevent the defendant from making a full answer and defence to the claim.

[18] Absent of the consent of counsel to agree to exclude the evidence of Lisa Jones and continue the trial with the jury, I had decided to exercise my discretion under Section 108(1)(3) of the Courts of Justice Act and Rule 47.02 of the Rules of Civil Procedure to strike the jury notice and dismiss the jury after Lisa Jones had given her evidence.

[19] After counsel for the parties reached an agreement to exclude the evidence of Lisa Jones, the trial continued with the jury.

[20] At that point, the defendant called its remaining witnesses, Ilmar Jaas, a patron at the restaurant, Malgorzata Sredniawski, a manager at the restaurant, and George Moutsatsos, the owner and operator of the defendant restaurant.

[21] As the trial unfolded, there were further issues that arose concerning the disclosure provided by the defendant to the plaintiff regarding the testimony of witnesses and issues concerning the documentary disclosure provided by the defendant and, in particular, what was in and not in the sworn affidavit of documents executed by George Moutsatsos.

[22] The court heard evidence from Malgorzata Sredniawski, who was employed as a manager on the evening of March 1, 2008 when the plaintiff fell at the restaurant owned and operated by the defendant. Ms. Sredniawski testified that she saw the plaintiff at the front of the restaurant and the plaintiff proceed up the stairs in the bar area toward the dining room and travel a route along the dining room to the party room at the rear of the restaurant. This contradicts the evidence of the plaintiff, who testified that they travelled to the party room through the bar area, which was a narrow, busy area and not through the wider dining room area. The method the plaintiff travelled to the party room is significant with respect to the issue of contributory negligence. If the plaintiff travelled through the dining room area to the party room, she would have a different line of sight of the elevated stairs and the sign warning of the stairs than she would have if she travelled through the bar area which involved travel along a wall which did not provide a clear view of the stairs or the sign posted warning of the stairs.

[23] The difficulty with the evidence of Malgorzata Sredniawski is that this evidence of the path travelled by the plaintiff from the front of the restaurant to the party room was not disclosed by the defendant to the plaintiff prior to Ms. Sredniawski giving her evidence at the trial of this action. The plaintiff was lead to believe that there was no evidence that the defendant had concerning the path travelled by the plaintiff to the back room. It is true that the defendant had a “theory” that the plaintiff travelled through the dining room area to the back area because the restaurant protocol directed that patrons travelled this way and the plaintiff was aware that this was the defendant’s “theory” but the “evidence” of Ms. Sredniawski to support this “theory” was not provided by the defendant to the plaintiff prior to trial. The “theory” had been disclosed by the defendant to the plaintiff prior to trial, but the “evidence” in support of the theory had not been.

[24] In addition, the first reference to any policy manuals of the defendant in existence was when this was disclosed in the evidence of Malgorzata Srednowski at trial. These manuals dealt with policies and procedures concerning the safety of patrons while at the defendant restaurant. These manuals are obviously relevant in an action that involves a claim under the Occupiers’ Liability Act. The existence of these manuals was not disclosed by the restaurant owner, George Moutsatsos, in his sworn affidavit of documents provided to the plaintiff during the course of the proceeding. The plaintiff did not have the benefit of seeing these safety manuals either prior to trial or before the conclusion of trial. These manuals simply were not produced by the defendant.

[25] This lack of disclosure was put to George Moutsatsos in his cross-examination by lead counsel for the plaintiff, Mr. Rosa. Page 31, line 14 to Page 35, Line 10 of the transcript produced from the cross-examination of Mr. Moutsatsos reads as follows:

Q. Okay. I wouldn’t suggest, Sir, that you had those. Mr. Moutsatsos, we heard yesterday from Malgorzata Sredniawski who was your manager.

A. Yes, Sir.

Q. Right? And she provided evidence.

A. Yes, Sir.

Q. Okay. And she indicated during the course of her exam…cross-examination that there were in fact written policies and protocols and systems which were in binders in the office. Is that correct?

A. Yes, Sir.

Q. And she indicated as well that there was a portion of those…in some of those book…or books, there was a section dealing with the safety of patrons while on the premises. Did you hear…did you hear her give that evidence?

A. I don’t remember, she might have, I’m not sure.

Q. You don’t remember when she said that?

A. No.

Q. You don’t remember when she said that there was in existence written manuals of policies and procedures in regard to the protocols, procedures, systems in the restaurant.

A. Absolutely – I don’t…I don’t remember he say…

Q. You don’t remember her saying that?

A. No.

Q. Well, she said that there were…there were books dealing with how to do things and how to deal with patrons when they came into the restaurant to ensure for their safety. She said that was in writing.

A. That’s our manuals for our training manuals, is that what she…she referred to?

Q. I don’t know, Mr. Moutsatsos, because I’ve never seen them.

A. Because the only thing we have is training manuals and we do train, like I indicate earlier, hands-on and we have the training manuals that indicates and I think Mal, she might have suggest that yesterday, I don’t know, that was the breakdown of the restaurant – how to do each individual, how to do their duties.

Q. Mr. Moutsatsos, I asked her on a number of different occasions and she admitted initially to me that there were such manuals and that there were books, manuals, policies, which were in writing; they were training manuals; service manuals; food preparation; safety manuals; safety of patrons for part of the book and they…she saw them in the office.

A. That’s the…

Q. Would that be in your office?

A. Yes, Sir.

Q. Or would your managers share your office?

A. Yes. Yes, Sir.

Q. Was she incorrect when she said that…

A. Yes.

Q. …that those manuals did exist on the 1st of March of 2008?

A. They did, but I…

Q. They did exist.

A. …but I just want to make sure the manuals that she’s talking about is not the manuals that were train our people on the…on the procedures, like on how to serve; how to greet the guests on the door…

Q. I don’t know. I can’t answer that question.

A. Okay.

Q. And I’m not in a position to give evidence.

A. Yes, and I think that’s when she…those are might referring to…

Q. Alright, but there were manuals which dealt with safety of patrons when they came on the premises – or was there a portion of the manual that would have dealt with the safety of the patrons?

A. Yes, because every…

Q. Pardon me? Yes?

A. …on…on there, yes.

Q. Mr. Moutsatsos, we’re here talking about and the allegation is that the premises of the restaurant were unsafe, right? Mrs. Olivier says and her allegation is that the premises aren’t safe.

A. I…

Q. I mean, that’s…that’s what she says in her claim.

A. Ah hm.

Q. She’s suing you or she’s suing your company.

A. Yes, Sir.

Q. And she says that the premises were not maintained or constructed or whatever in accordance with the provisions of the Occupier’s Liability Act. That’s what she says, right?

A. That’s what she says, but…

Q. Yes, I understand, I appreciate…

A. Okay.

Q. …that’s the issue.

A. Yes, Sir.

Q. And you’re telling…you’re telling the court today that there is a manual or are manuals or parts of manuals that deal with the safety of the patron while in the restaurant. That’s what you said.

A. Yes, Sir.

Q. There is. Now, you were asked, you swore an affidavit that says…that said that you produced all of the relevant documents. Right?

A. Yes, Sir.

Q. And that the documents, I suggest to you, which deal with the safety of the patrons are relevant documents aren’t they?

A. Yes, Sir.

Q. Then why weren’t they produced?

A. I don’t know, Sir.

Q. Mr. Moutsatsos, this is an affidavit…

A. Yes, Sir.

Q. …you know that I’m going to suggest to you that what you said here is not true is it? That you didn’t conduct a diligent search and you didn’t produce all of the relevant documentation. Isn’t that true?

A. No, I didn’t.

Q. You didn’t. So you come here today, got a jury, got a judge and what you’re telling me here today is that there hasn’t been full disclosure of all of the provisions of the manual which deal with the safety of a patron while on the premises – that’s what you’re telling us.

A. Yes, Sir.

Q. Is that correct? Yes?

A. Yes, Sir.

[26] In that exchange, Mr. Moutsatsos admits that he did not exercise due diligence in producing the manuals, that the manuals were relevant and that there was a failure to disclose the manuals.

[27] In the evidence of George Moutsatsos, he indicates that he saw a hostess greet the plaintiff at the door and offer to bring her to the back room with this offer being rejected by the plaintiff’s niece who indicated that she knew where she was going and would take the plaintiff. Mr. Moutsatsos indicated that the hostess followed behind the plaintiff and her niece and testified that he personally observed the plaintiff and her niece travel through the dining room toward the back of the restaurant where the party room was. After Mr. Moutsatsos gave this evidence, counsel for the plaintiff raised an objection which again focused on the lack of disclosure provided by the defendant. On his examination for discovery, Mr. Moutsatsos did not disclose that he saw the plaintiff travel through the dining room area with a hostess trailing. On his examination for discovery, Mr. Moutsatsos related what other people, his employees, told him about what they observed and the plaintiff was led to believe that Mr. Moutsatsos had no direct evidence but only information which his employees had related to him.

[28] In countering this objection, counsel for the defendant indicated that on his discovery, Mr. Moutsatsos was asked about the plaintiff’s fall and how he learned about the fall and not specifically about what he saw at the time the plaintiff entered the restaurant or about the route the plaintiff travelled to the back room where the fall had occurred.

[29] In my view, the position advanced by the defendant is not the proper approach with respect to the obligation of a party to make full disclosure of the evidence it has to support its case. There is an ongoing obligation of a party to disclose the evidence it has and intends to call at trial to support its theory of the case. The civil trial system is built on fairness to all parties and the proper dispensation of justice. Without fairness, the confidence in the administration of justice is eroded and the court should be vigilant to protect against this. Our legal proceedings have evolved to the point where full and complete disclosure is required to be made by the parties to each other. Well in advance of trial, parties are required to be made aware of the facts and the evidence which supports the claim being advanced. Without this requirement of full disclosure, the pre-trial process for the resolution of disputes without a trial is rendered meaningless as is the ability of counsel to advise their clients and obtain informed and meaningful instructions from their clients. We have long since abandoned the “trial by ambush” approach and where a party would shield behind a suggestion that it was not asked or not requested to justify why disclosure was not provided. A party to litigation has an active, open and ongoing obligation to disclose the evidence it is going to rely on to support its position, whether this is asked for or not. The court cannot ensure fairness to the parties or ensure a pre-trial system that is capable of resolving disputes between litigants without this.

[30] The Ontario Court of Appeal has endorsed the principle of “full and timely disclosure” in the manner in which the rules of discovery are to be applied. In the decision of Ceci v. Bonk 1992 CanLII 7596 (ON CA), 7 O.R. (3d) 381, Carthy, J.A. speaking for the court stated:

“In my view, the discovery rules must be read in a manner to discourage tactics and encourage full and timely disclosure. Tactical maneuvers lead to confrontation. Disclosure leads sensible people to assess their position in the litigation and to accommodate.”

[31] The recent case of Beland v. Hill 2012 ONSC 4855, [2012] O.J. No. 3997, deals with the ongoing obligation of a party to disclose. In that case, there was no surveillance evidence at the time of examination for discovery but subsequently surveillance evidence was obtained. In the Beland case, the court followed the rationale of “full and timely disclosure” as set out in Ceci v. Bonk. In dealing with the defendants failure to disclose the surveillance information and veterinary records, Mr. Justice Howden in Beland, makes the following observations from paragraphs 48 to 52:

[48] The rules applicable to the non-disclosure before trial of the complete veterinary records and of the content of the surveillance records:

30.07 Where a party, after serving an affidavit of documents,

(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or

(b) discovers that the affidavit is inaccurate or incomplete,

the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents. R.R.O. 1990, Reg. 194, R. 30.07.

30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,

(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or

(b) if the document is not favourable to the party’s case, the court may make such order as is just. R.R.O. 1990, Reg. 194, r. 30.08 (1); O. Reg. 504/00, s. 3.

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

(a) was incorrect or incomplete when made; or

(b) is no longer correct and complete,

the party shall forthwith provide the information in writing to every other party. R.R.O. 1990, Reg. 194, R. 31.09 (1).

(3) Where a party has failed to comply with sub-rule (1) or a requirement under clause (2) (b), and the information subsequently discovered is,

(a) favourable to the party’s case, the party may not introduce the information at the trial, except with leave of the trial judge; or

(b) not favourable to the party’s case, the court may make such order as is just. R.R.O. 1990, Reg. 194, r. 31.09

48.04 (1) Subject to sub-rule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 436/10, s. 1 (1).

(2) Sub-rule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(iv) rule 31.09 (disclosure of information subsequently obtained).

[49] In this case, at the defendant Heidi Hill’s examination, she was asked whether surveillance of the plaintiff had been arranged and defendant’s counsel on discovery said that she did not know of any; in other words, the answer on discovery was no, no such surveillance had been commissioned. That appeared to have been true at the time because no surveillance occurred until well after completion of the examinations for discovery, in 2011. As well, at the time the defendant’s affidavit of documents was delivered, no surveillance record existed. However, once surveillance had been conducted, the record became a privileged document in the defendant’s possession. This is where, in my view, the continuing duty to disclose imposed by the rules kicks in. The existing affidavit of documents had become incomplete and inaccurate where it stated that all privileged documents in the defendant’s control were listed in Schedule B. By rule 30.07(b), the defendants were required to serve a supplementary affidavit disclosing the additional document, i.e. the surveillance record, in a timely manner before trial. Rule 48.04(2) affirms that intent by exempting, from the setting – down prohibition of further proceedings, disclosure of information subsequently obtained.

[50] The defendants’ counsel’s negative answer to the question concerning surveillance on discovery was no longer correct by 2011. By rule 31.09(1)(b) and the discovery disclosure rules, the defendants were required to provide a complete summary of the surveillance to the plaintiff. Following Ceci and Landolfi, the discovery rules are to be read in a manner to discourage tactics and encourage full and timely disclosure in order to encourage early settlement and reduce court costs. Carthy J.A. in Ceci set out the rationale for this reading of rule 30.09 in context with the informational discovery rules:

10. In my view, the discovery rules must be read in a manner to discourage tactics and encourage full and timely disclosure. Tactical manoeuvres lead to confrontation. Disclosure leads sensible people to assess their position in the litigation and to accommodate. In cases such as this, there will be very few litigants who successfully maintain a dishonest stance simply because they have been exposed to the other party's evidence in advance of giving answers. It is more likely that the process of discovery will make it difficult for a litigant to conceal untruth and that a plaintiff will back away voluntarily from claims that are exposed as invalid, limiting further expense in the litigation.

[51] To argue, as Mr. Forget does, that a litigant is entitled to hold back information and documents that are clearly relevant and are needed by the opposing party to properly assess the case, well before trial with its accompanying heavy costs burden, in my view is to run directly counter to the direction by the Court of Appeal and the meaning and intent of the Rules of Civil Procedure. It is a holdover from pre-1984 days when surprise was too often the order of the day for trials. While the plaintiff’s evidence as given in chief did coincide to some extent with what the surveillance showed, the overall impression given by the surveillance differed from the tenor of his evidence. It showed the plaintiff working for relatively lengthy periods of time on his garden and yard, using a shovel and an axe, pulling up weeds using some force, washing the inside of a car as well as playing an active role in building and carrying a floating dock and driving a wheelbarrow relatively full of earth a significant distance along the beach near the cottage. It would have been important for counsel to know this information as the general effect contradicted the tenor of his evidence that he could not do activities for any considerable length of time without flare-ups of severe back pain. I am not suggesting, of course, that the defendants were under a duty to disclose the actual surveillance record but the requirement of full disclosure of relevant evidence before trial required defendants’ counsel to deliver a complete and accurate account and summary of the content of the surveillance.

[52] The defendants’ counsel failed to deliver an up-dated affidavit of documents and failed to correct the examination for discovery concerning the subsequent surveillance in a timely manner before trial. Where the opposing party is kept in the dark about the existence of a document or record by lapses in the duty to disclose before trial, I fail to see how that party can exercise their right to move for the relevant information to be produced before trial. The same goes for the failure to produce the full record of the defendants’ veterinarian records in a timely fashion following the discoveries in 2009 and well before trial. The timing of, and failure to disclose relevant documents and information following the examinations for discovery is an example of smart practise which encourages costly trials and makes more difficult early settlement of cases before trial.”

[32] The case at bar is replete with non-disclosure issues which were raised repeatedly throughout the trial. This non-disclosure by the defendant created complexities in the evidence – what evidence should be considered, what evidence should be disregarded, what weight should be placed on the evidence and what inferences should be drawn by the trier of fact as a result of the non-disclosure.

[33] I am not satisfied that my instructions to the jury, however clear and properly drafted, could adequately assist the jury in sifting out the nuances and complexities with the evidence and I conclude that justice to the plaintiff and to the defendant will be better served by having the court sitting alone taking over the role of trier of fact than by leaving that role with the jury.

[34] In arriving at that decision, I am very much aware of the sanctity of the jury system and that the right of a party to a jury is a significant and substantial legal right not to be upset lightly. This right is codified in Section 108(1) of the Courts of Justice Act. In the case of Hunt v. Sutton Group Incentive Realty Inc. 60 O.R. (3d) 655, the Ontario Court of Appeal indicates that “the right to a trial by jury is a statutory right and a substantive one.”

[35] This principle is not lost on this court in deciding whether or not to strike the jury notice and discharge the jury. At paragraph 52 of the Hunt v. Sutton case, the court commented on the trial judge’s discretion to strike out a jury notice or discharge a jury as follows:

“A judge, on the motion, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles.”

[36] Section 108(1)(3) of the Courts of Justice Act allows the court, on motion, to order that the issues of fact and the assessment of damages be heard without a jury. Further, Rule 47.02 of the Rules of Civil Procedure permits the court to strike out a jury notice. Rule 47.02(3) goes on to provide:

“Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in the proper case, to try the action without a jury…”

[37] The principles to be considered in the exercise of the court’s discretion have been set out by the Ontario Court of Appeal in Cowles et al. v. Balac et al. 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660. At paragraph 29 of that decision, the court states:

“If a litigant is entitled to trial by jury, that right is a substantive one which should not be interfered with without just cause: King v. Colonial Homes Ltd. 1956 CanLII 13 (SCC), [1956] S.C.R. 528, 4 D.L.R. (2d) 561 at p. 533 S.C.R. When a trial judge is asked to discharge a jury, she or he must decide whether justice to the parties will be better served by the discharge or the retention of the jury. The moving party bears the burden of persuasion and must be able to point to features in the legal or factual issues to be resolved in the evidence, or the conduct of the trial, which merit the discharge of a jury. Majcenic v. Natale 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.) at pp. 201-02 O.R. A trial judge faced with a motion to discharge a jury must exercise a judicial discretion.”

[38] The complexities in the evidence, complexities which arise from the non-disclosure of the evidence to be presented at trial by the defendant and the non-disclosure of relevant documents by the defendant, have caused me to conclude that justice to the parties will be better served if the jury notice is struck, the jury is discharged and the matters proceeded before me sitting without a jury. Attempting to instruct the jury on what weight to put on the evidence and what inferences to draw from the evidence arising from the defendants’ non-disclosure would be difficult. In the end, instructions will likely cause the jury to focus on the evidence that should be ignored or little weight placed on it due to the non-disclosure.

[39] Despite the consent of counsel for the parties to continue on with a jury after the evidence of Lisa Jones had been received, I am of the view that the jury should have been discharged at that point in the trial and the evidentiary difficulties arising from the non-disclosure by the defendants did not end with the exclusion of the evidence of Lisa Jones, but were only multiplied as the trial progressed to the point where the court had no alternative but to discharge the jury in the interests of justice. The evidence in the trial has become so complex, not by the nature of the evidence, but by how it should be appropriately dealt with to arrive at a just result for the parties, that the court must strike the jury notice and discharge the jury.

[40] In my view, the moving party (the plaintiff) has met the high and substantial onus in persuading the court that justice to the parties is better served, in this case, by the discharge of the jury. For the aforegoing reasons, the jury notice is struck, the jury is discharged and this trial will proceed without a jury.

Justice E. Gareau

Released: October 16, 2012