Juries find the facts, and the trial judge applies the law. Sounds simple, but when are the facts of a case too complex for a civil jury? That was the essential question before the Nova Scotia Court of Appeal in the recent case of Cyr v Anderson, 2014 NSCA 51.
Defining “complexity” is, well, a complex task. It ends up being a value-laden exercise that reveals assumptions about the competence and usefulness of civil juries. In general, the proponent of having a jury will advocate a narrow definition of complexity, putting trust in the jury’s ability to grasp the factual intricacies of her case. The opponent who seeks a judge-alone trial will label a much wider swath of cases as too complex, not exhibiting much faith in the jury’s capacity to handle the facts of the matter.
In Cyr, the Court of Appeal took the former approach, reaffirming the substantive and prima facie right to a civil jury in Nova Scotia.
The case began in 2007 with a motor vehicle accident in Halifax. The defendant driver and the rental company that owned the car—both appellants in the Court of Appeal—admitted liability in negligence, leaving causation of the plaintiff-respondent’s injuries and quantum of damages as the only issues left for trial.
At first, it was the plaintiff requesting a jury trial. When he changed his mind at a third date assignment conference, the defendants requested a jury. The plaintiff then brought a motion to strike their jury notice, arguing that the medical evidence he would be presenting made the matter too complex for a jury. As Justice Farrar put it:
The respondent, in essence, questioned the competency of jurors[,] suggesting in these circumstances, a jury could not engage in a “careful and reflective study” of questions of fact.
Nevertheless, the plaintiff’s motion was successful, the jury notice was struck, and the defendants appealed.
After reviewing section 34 of the Judicature Act and numerous Nova Scotia cases, Justice Farrar, with Justices Fichaud and Bryson concurring, remarked that “complexity remains a very nebulous concept” and “there is not one all-encompassing magical catch-all definition of complexity.”
Perhaps complexity is more easily defined by what it is not. For example, the presence of scientific or technical evidence will not be enough to take a case out of a jury’s hands – which makes sense, given the prevalence of this kind of evidence in civil litigation; otherwise, an argument about scientific evidence would be a guaranteed ‘slam dunk’ for a party who did not want a jury. Furthermore, difficulty in proving a claim is not the same thing as complexity: just because you may not win your case doesn’t mean a jury can’t decide it.
The Court also focused on two grounds that judges have treated as proxies for complexity when striking a jury notice: (1) the predicted length of the trial, and (2) time constraints on jury deliberations (at least when compared to how long a judge would have).
On the first ground, Justice Farrar held that “as a general rule, the length of the trial is not in itself a reason to strike the jury notice” – but acknowledged that it may be unworkable to have a jury trial lasting eight months or thereabouts. As to the second point, a jury is not under any legal time constraints. The idea of self-imposed time constraints may also be illusory, according to Justice Farrar: “having sat through weeks or months of evidence, it is unlikely that a jury will race through the evidence to reach a verdict just to get home to friends and family.” The Court found that “time constraints are only relevant when they can be directly related to the complexity analysis – e.g. expert reports are thousands of pages long and conflicting and it would take a civil jury a week just to read the reports.”
In the Court’s view, arguments based on perceived time constraints might actually demonstrate a distrust of juries:
…no evidence has ever been cited in any of these cases that civil juries are less capable of rendering a decision than a judge because they cannot, as a matter of practicality, take as long as a judge to consider its verdict or because they cannot cope with complex evidence as well as judges. While justice may require some cases to be heard by a judge rather than a jury, there is a paternalistic aspect to some cases that suggest that juries are less capable than judges.
In the result, the Court of Appeal overturned the motion judge, finding that the issues at stake in Cyr were factual ones appropriate for a jury trial, and reinstated the jury notice.
It may be impossible to perfectly sketch the contours of complexity – the Court recognized that “complexity is a matter of degree, depending on the legal, factual and evidentiary issues” in each case. But we now know that many reasons given in the past for striking a jury notice will no longer suffice. And in the process of affirming a party’s right to a civil jury in Nova Scotia, Cyr also gives proper respect to civil jurors.