What is the burden of proving that a plaintiff has a right to a trial by jury?

The plaintiff has a presumptive right to a trial by jury. The defendants bear the heavy onus of demonstrating that there are cogent reasons for depriving him of that right: Cliff v. Dahl, 2012 BCSC 276 at para. 28.

On an application for an order that the trial proceed without a jury, the threshold question is whether the material before the court provides a factual foundation for its exercise of discretion. Whether there are issues of an intricate or complex nature involves findings of fact which will inform the court’s exercise of discretion. Once a factual foundation is established, the court’s decision on whether to strike the jury notice is discretionary. The focus of the inquiry is then on whether in the opinion of the judge, the jury is capable of understanding and retaining that understanding of the evidence throughout the trial: MacPherson v. Czabin, 2002 BCCA 518 at paras. 16-17.

In determining whether “the issues are of an intricate or complex character”, the court must consider those issues in the context of the case as a whole, rather than in isolation: Gulamani v. Chandra, 2009 BCSC 1042 at para. 35.