What is the test for the right to a jury trial in a civil action?

As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, "it is not absolute and must sometimes yield to the practicality."

Historically, the courts have favoured a “wait and see” approach, deferring the decision to the trial judge who could more properly assess whether, in light of the evidence, the interests of justice require the matter to be tried by judge alone. However, in Belton v. Spencer, supra Brown J.A., sitting alone as a motions judge, recognized that the “wait and see” approach is inappropriate when the request for a judge alone trial is based on the delay associated with waiting for a jury trial.