“The right to a jury trial is a fundamental, substantive right that should not be interfered with except for very cogent reasons.”1

In most personal injury cases, defence counsel will file a jury notice. There was been recent debate about the abolition of juries, to speedup the trial system in Ontario. However, some believe that the jury system is fundamental to the democratic process and can trace its roots to the Magna Carta. In Kempf v. Ngueyn, a 2015 decision of the Court of Appeal, the subject of this paper, the Court of Appeal held:

In addition to the wisdom of their collective life experience, a jury would bring to this action, as juries always do, a reflection of societal values.

As referenced in Whiten v. Pilot Insurance Co, a monumental 2002 decision of the Supreme Court of Canada, “One of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities”.

However, what happens if there are aspects of the case that are thought to be too sophisticated for a jury to understand? What test should be applied to make the determination?

This action arises of our charity bicycle race to benefit the Heart and Stroke Foundation. Two groups of cyclists formed at the front, with the second group just behind the first group. The appellant Nguyen was at the back of the first group and the respondent Kempf was at the front of the second group. Kempf tried to join the first group and approached Nguyen. Nguyen swerved to the left, clipping Kempf’s front wheel and Kempf fell suffering serious injuries. Nguyen did not stop.

Kempf sued Nguyen in negligence for damages arising from the accident. In Nguyen’s defence, he pled that Kempf had voluntarily assumed the risk of the ride and that Kempf had been negligent. The trial was solely regarding whether Nguyen was liable for Kempf’s injuries. Counsel for Kempf moved to strike the jury notice, after the jury was selected. The jury notice was struck and the jury was discharged because it was reasoned that the jury would be confused by the implications of a waiver, particularly given the pleading of voluntary assumption of risk. A 5 day trial was held and Nguyen was found responsible for Kempf’s injuries.

On appeal, Nguyen raised 3 grounds, one of which was that the trial judge erred in striking the jury notice. The Court of Appeal comprising of Laskin, Rouleau and Epstein (JJ. A) found that the “trial judge based her decision to strike the jury upon a wrong of inapplicable principle of law”. Accordingly, the judgment was set aside and a new trial on the issue of liability was to be heard by a judge and jury.

What does volenti non fit injuria mean? In Latin, it translates as “To the consenting, no injury is done.”

Is Volenti a claim for declaratory relief?

At the opening of trial, Nguyen, on consent, moved to raise the defence of volenti (voluntary assumption of risk). Kempf then moved to strike the jury notice based on the amendment stating that the nature of the case was now of declaration, which disqualified the action from being tried by a jury under the Courts of Justice Act. Nguyen argued that he was not seeking declaratory relief, but the waiver was relevant to the inherent risks of the ride and whether there was any contributory negligence by Kempf. It was argued that an appropriate charge would assist the jury in its use of the waiver regarding liability. The trial judge relied upon the decision in Crocker v. Sundance Northwest Resorts Ltd. a 1988 decision of the Supreme Court of Canada, which stated:

Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the Plaintiff has assumed both the physical and the legal risk involved in the activity.

It was found that volenti was to be determined by the Judge and liability was to be determined by the jury,, which would result in confusion to the jury, when reviewing the waiver and determining its application. The trial judge stated:

The waiver is inextricably bound up in the liability issue and the jury would not be able to ignore it and the evidence surrounding it during their deliberations and this would be inappropriate, given the jury’s function. They are to determine the issue of liability, not to interpret the waiver and its effect.

The Court of Appeal referred to Hunt and Brady v. Lamb, a 2005 decision of the Court of Appeal which stated its jurisdiction:

will order a new trial when it has found that a trial judge has exercised that discretion arbitrarily or based on improper principles so as to enforce the statutory right to a jury trial.

In terms of addressing the application of volenti, The Court of Appeal stated that

Volenti, however, is not a claim for declaratory relief: it is a full defence to a finding of negligence.

Furthermore, citation was made of Linden and Feldthusen’s treatise, Canadian Tort Law which states that

[V]olenti is a question of fact normally decided by the jury

In terms of the interpretation of the waiver, it was found that

The waiver is a contract between the participants and the ride organizers. It is not a contract between Kempf and Nguyen, nor does it contain any terms that release other ride participants from liability for their negligence.

Therefore, the Court of Appeal decided:

In summary, this is not a case where the trial judge, in the exercise of her discretion, strikes the jury on the ground that the evidence was too technical or complex for the jury to make a proper assessment of liability. It was decided primarily on the basis that the jury members would be incapable of understanding the legal effect of the waiver, even after careful instruction.

In fact, the Court of Appeal found that the trial judge should have reserved on striking the jury until after the evidence had been completed. In terms of the other aspects of the appeal; that of failing to consider contributory negligence and the standard of care: negligence v. recklessness, the Court of Appeal stated that these issues would be best left to be addressed at the new trial.

This case acknowledges the importance of juries, and how to navigate in a case where there may be issues thought to be “too complicated” for a jury to understand.