What is the test for striking the jury in a medical malpractice action?

More recent decisions have tended to leave it to the trial judge to decide whether the matters are too complex for the jury. In Campbell v. Singal, [1989] O.J. No. 566 (H.C.J.), a motion was brought to strike the jury notice in a medical malpractice action. McDermid L.J.S.C. stated, at p 5, that the right to trial by jury should not be taken away “unless it is probable that even with a reasonable amount of additional time” the jury could not reasonably follow the evidence or the charge. As noted by McDermid L.J.S.C., the trial judge is in a much better position to make that determination.

In the case of Montpellier v. Montpellier, [2003] O.J. No. 1921 (Sup. Ct.), Hennessy J. considered an action that advanced claims in tort and claims in equity for breach of fiduciary duties. While the claim based on breach of a fiduciary duty could not be heard by a jury, it was possible to leave the jury notice in place for the remainder of the claims. Acknowledging that there were a number of ways to proceed with a divided trial, she decided that it was a matter best left for determination by either the case management process or the trial judge.

The case of Macdonald v. Zurich Insurance Co. of Canada, [2003] O.J. No. 5963 (Sup. Ct.) also considered a claim for fiduciary duty that was combined with another claim. While the claim for damages for breach of fiduciary duty could not be heard by a jury, the issue of damages for breach of the duty of good faith could be. Swinton J. expressed the view that it would be premature to strike the jury on the grounds of the complexity of the issues and that it would be a matter best left to the trial judge.