Chapter 10: Trials, Juries, and Appeals

• Pages: 268-285
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CH AP TER 10

TRIALS, JURIES, AND

APPEALS

A. THE TRI AL OF A CIVIL CLAIM

Canada’s civil litigation system i s centred on the public adversarial trial

as the nal step in t he process. The system can be thought of as tri al-

centric. This is cur ious for two reasons. First, t he civil litigation system

involves many processes leading up to a trial that provide opportun-

ities to avoid a trial. Steps like med iation, pre-trial motions, discovery,

case management, and pre-tr ial settlement conferences, as well as tying

legal fee awards to reasonable settlement offers are a ll mechanisms de-

signed to narrow is sues and prompt parties to settle and avoid tri al at

all costs. Second, nearly all civil cases sett le before they get to trial and

some settle on the eve of, or even the morning of, the trial.1

Civil tri als are expensive. They are complex proceedings with m any

steps. They can take days or weeks to complete. They involve lengthy

preparation and require the law yers for all the parties to rem ain fo-

cused on the tri al process as it evolves at the expense of doing other

work. The evidence at trial can be costly, such as the fees for scientic

expert witnesses or reproducing complex technical evidence.

According to the Gove rnment of Canada, 98 perce nt of civil suits “never make

it to the courts,” online: www.justice.gc.ca/eng/csj-sjc/just/08.html.

1

268

Trials, Jurie s, and Appeals 269

This means th at parties conduct themselves under the const ant

“threat” of a trial, ba rgaining in the “shadow” of litigation to attempt to

resolve their dispute without needing a t rial.

Civil trials are adversaria l. They rely on the fact that parties have

their own law yers to represent their interests and theirs alone. The

procedural rules for tri als reect this. Law yers act in the interests

of their clients. The system relies on it. For example, a part y who

wishes for a certain f act to be proven as tr ue will attempt to elicit t hat

fact in a manner that establishes the fact in their f avour. Opposing

parties will attempt to test the truthf ulness of that fact through the

process of cross-ex amination, by probing the context, nuance, and

veracity of what the other party h ad hoped to establish. This process

of adversarial back-and-forth tr uth testing lies at the heart of the

trial proces s.

Thus, the pre-trial process i s designed to avoid trial by sur prise.

This saves time and stre amlines the par ties’ efforts to settle if at all

possible. To that end, discovery obligations on all parties mandate the

disclosure of all relevant document s. Parties can exa mine a witness

under oath in oral discover y.

By the time of tria l, parties should know well the cas e they have

to meet. Of course, no one can predict the outcome of a trial once wit-

nesses testify, and the evidence starts to unfold. Witnesses may change

their story. Some evidence may not emerge as expected. A tr ial judge

may make ruli ngs about evidence or trial procedure affecting what is

permitted or how particul ar evidence is perceived or weighed. Never-

theless, there are few evidenti ary surpri ses in modern Canadian civil

trials. Thi s chapter will introduce the structure of a trial and some

considerations regarding juries. The chapter then proceeds to analyze

appeals. First, however, we need to consider at the outset whether the

trial will proceed before a judge or a jury.

B. THE FACT FINDER: JUDGE OR JURY?

The primary goal of a tr ial is to establish the facts in a civ il claim. Once

the facts of “what happened” and “why” are set, the l aw is then applied

to those facts to obtain t he legal result for the parties. But the most

time-intensive exercise is e stablishing the facts through both docu-

mentary and wit ness evidence. There are two possibilities for the role

of the fact nder in a Canadi an trial: a judge or a jury.

A trial conducted by a judge without a jury (often called a “judge

alone” trial) ends with t he judge determining the facts and applyi ng