![handle is hein.journals/wesjalals13 and id is 1 raw text is: THE JURY STRIKES BACK: ENHANCING VIABILITY OF THE
CIVIL JURY SYSTEM IN A POST-PANDEMIC ONTARIO
BRANDON ORCT*
INTRODUCTION
The civil jury trial has deep historical roots in Ontario's common law legal system.
As an import from the English legal tradition, the civil jury trial's history predates
confederation and was first introduced in Ontario in 1792.1 At its initial adoption, civil
jury trials were mandatory for private disputes.2 Fast forward over two hundred years
later, the civil jury persists as an institution in Ontario. However, the civil jury in the 21st
century is unrecognizable to the 18th century civil jury: juries are no longer mandatory,
rather, juries are optional to the parties;3 jury selection is more methodical and less prone
to obvious attempts at jury packing;4 and civil juries are now comprised of six members
rather than 12.5
Despite the functional changes over the centuries, the debate on maintaining the
use of civil jury trials in Ontario has remained relevant. However, this seemingly endless
debate is often fraught with a substantial amount of unconvincing rhetoric and
unsubstantiated claims related to the cost and time difference of jury and non-jury
* JD Candidate (2022, University of Ottawa), BA (2019, University of Toronto). The author thanks
Professor Daphne Gilbert for supervising the research and writing of this piece. The author also thanks
the Western Journal of Legal Studies' editorial team for their diligent work reviewing and editing this
piece. All errors are the author's own.
i See An Act to establish Trials by Jury, 1792 (32 Geo), c 2 (Upper Can).
2 See Ontario Law Reform Commission, Report on the Use ofJury Trials in Civil Cases (Toronto:
Ontario Law Reform Commission, 1996) at 5 [OLRC, Report on Jury Trials].
3 See Rules of Civil Procedure, RRO 1990, Reg 194, r 47.01 (parties seeking a jury trial must file a jury
notice) [ONRules]. See also Courts ofJustice Act, RSO 1990, c C 43, s 108(2) [CJA], which identifies
certain claims where the issues of fact and assessment of damages in an action are tried without a jury:
injunction or mandatory order; partition or sale of real property; relief in proceedings specified in the
Schedule; dissolution or acquisitions of partnerships; foreclosure or redemption of a mortgage; sale and
distribution of a property's proceeds subject to any lien or charge; execution of a trust; rectification,
setting aside, or cancelling a deed or other written instrument; specific performance of a contract;
declaratory relief; other equitable relief; and relief against a municipality.
4 See Paul Romney, From Constitutionalism to Legalism: Trial by Jury, Responsible Government and
the Rule of Law in the Canadian Political Culture (1989) 7:1 L & Hist Rev 121 at 130. See also Juries
Act, RSO 1990, c J.3, which statutorily imposes a number of requirements on juror eligibility, preparing
jury rolls, and how to challenge jurors.
5 CJA, supra note 3, s 108(4).](ViewImageLocal?handle=hein.journals/wesjalals13&div=1&collection=&method=preview&ext=.png&size=3)
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