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Fridays with Rogers Partners

At our weekly meeting, Annie Levanaj discussed the recent decision on the Court of Appeal in Hunter v. King 2022 ONCA 190.

This decision arose from a motor vehicle accident that occurred on March 14, 2012. The plaintiff, Andrew Hunter, was struck from behind by the defendant, Elvira King’s vehicle while stopped at a red light in Brampton. The defendant admitted liability so the issue for trial was damages for loss of income. The jury ruled in favour of the defendant, and did not award damages.

The plaintiff appealed on the grounds that the jury was not properly constituted because it was selected in Brampton for a Kitchener trial, and asked that the judgment be set aside, and a new jury trial convened.

Background Facts

On January 7, 2019, Regional Senior Judge Daley presided over an exit pretrial conference for the matter in Brampton. His Honour advised counsel that the trial may be in Orangeville or Kitchener, because there might be no courtroom available in Brampton on that day.

The matter then proceeded to jury selection. Justice Trimble, who oversaw the jury selection, advised the jury panel that the trial of the action would start the next day in Kitchener. The jurors were compensated for their mileage by the Jury Transport Program. None of the parties objected to the jury being selected from the Brampton panel, or to the trial being conducted in Kitchener, at any point during the trial.


The issue before the Court of Appeal (“COA”) was whether, as the plaintiff argued, the court lacked the authority to send a jury selected in Brampton to a trial taking place in Kitchener. 


The COA disagreed with the plaintiff’s position, and dismissed the appeal.

The Court began its analysis by highlighting the three sources for the Regional Senior Judge’s authority over trial sittings in this case:

  1. Section 14 of the Courts of Justice Act;
  2. A Direction by the Chief Justice of the Superior Court; and
  3. The Court’s inherent jurisdiction to control its own process.

The COA cited R v. Singh[1], which explained that Brampton was experiencing a courtroom shortage and the Chief Justice had ordered that any proceeding in Brampton could be transferred if the Regional Senior Judge determined that the proceeding could not be held in Brampton. The COA also referenced Louis v. Poitras[2]  that discussed the discretion that trial judges have in administering and delivering timely justice:

“However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice… intermediate courts of appeal should not lightly second guess those discretionary decisions.”

The plaintiff relied on Kapoor v. Kuzmanovski[3], where Regional Senior Judge Daley stated:

Following Durno J.’s decision in Singh, as Regional Senior Judge I have determined that where there is no courtroom space in Brampton for a civil jury trial, the appropriate and lawful course is to conduct the jury selection in the judicial centre where the case is to be tried. For example, a Brampton civil jury trial transferred to Kitchener would have the jury selected in Kitchener from a jury panel of Kitchener residents. Thus, there would be no need to look to the Jury Transport Program. This jury selection model will continue to apply to all civil jury cases transferred from Brampton whether to Kitchener or to another judicial centre in Central West Region.

The plaintiff submitted that Regional Senior Judge Daley made the policy decision under the mandate given to him by s. 14 of the Courts of Justice Act[4] and therefore should bind this case.

The COA highlighted that there is a presumption of regularity in the logistical and administrative decisions made by local judges that should not be lightly second-guessed. The COA acknowledged that while the optimal arrangement would be a jury selected from the panel drawn from the place the trial is set to be heard, the optimal situation must yield to circumstantial practicalities.

The plaintiff argued that the only appropriate and lawful course for the Regional Senior Judge was to conduct the jury selection in the judicial centre where the case was to be tried. The COA rejected this argument and interpretation of the Kapoor decision. The COA found the language used by Regional Senior Judge Daley was not exhaustive in regards to dealing with local circumstances. The Regional Senior Judge was aware of his authority and had communicated that the case could be tried elsewhere. The COA found it was fully within the judge’s authority to make the decision to move the jury to Kitchener.

In addition, the COA discussed the fact that there had been no objection by trial counsel upon hearing the possibility of the trial moving to Kitchener. In fact, this appeal was the first time the issue was raised.  The plaintiff argued that this submission met the test in R. v. Reid, 2016 ONCA 524, for when a party can raise an issue for the first time on appeal. The test is as follows:

“A party who seeks to escape the grip of the general prohibition against raising issues for the first time on appeal must meet or satisfy three preconditions:

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

(ii) the failure to raise the issue at trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.”

The COA ultimately found that there was no prejudice to the plaintiff from the trial selection procedure and that there would be no miscarriage of justice because a jury was selected from the Brampton panel and not the Kitchener panel. No reasonable person would see that as a miscarriage of justice.

Therefore, the appeal was dismissed with costs. 

[1] 2018 ONSC 1532

[2] 2021 ONCA 49

[3] 2018 ONSC 4770

[4] R.S.O. 1990, c. C.43