|Demeter v. Occidental Life Insurance Company of California
and two other actions
26 O.R. (2d) 391
102 D.L.R. (3d) 454
In deciding an application to set aside a jury notice, a Motions Court Judge must himself make a decision as to whether he has been satisfied by the applicant that the action should be tried without a jury. By noting that his dismissal of such an application is not binding on the trial Judge, who does exercise ultimate control in the matter, the Motions Court Judge does not indicate his own failure to adjudicate.
[Martin v. Deutch et al.,  O.R. 683,  4 D.L.R. 600; Bissett v. Knights of the Maccabees,  3 O.W.N. 1280, 3 D.L.R. 714, refd to]
APPEAL from a judgment of Labrosse, J., 23 O.R. (2d) 31, 94 D.L.R. (3d) 465, 9 C.P.C. 322, refusing to strike out jury notices served in the three actions.
J. A. Campbell, Q.C., for appellant, Occidental Life Insurance Company of California.
R. B. Cumine, Q.C., for appellant, British Pacific Life Insurance Company.
H. B. J. Edwards, Q.C., for appellant, Dominion Life Assurance Company.
Richard J. Sommers, for respondent.
The judgment of the Court was delivered orally by
REID, J.:– This is an appeal against a decision of the Honourable Mr. Justice Labrosse made on January 26, 1979, in which he refused to strike out jury notices that had been served by the plaintiff Demeter in three actions against three different insurance companies. The claims made by the plaintiff Demeter are in essence for payment to him as beneficiary under three insurance policies that had been taken out on the life of his late wife.
Mr. Justice Labrosse heard the application and reserved his decision. In the closing words of his reasons he said [23 O.R. (2d) 31 at pp. 35-6, 94 D.L.R. (3d) 465 at p. 470]:
I realize that the question as to whether the action should be tried by a jury should be determined as quickly as possible. However, I am not convinced at this stage of the proceedings that the action is one which ought to be tried without a jury. The defendants have failed to satisfy me in my function as a Motions Court Judge that the action should be tried without one. I have referred to a number of reasons which confirm the very practical approach in proper cases to leave the ultimate decision to the trial Judge. This is such a case.
It was put to us as one of the grounds for appeal, leave to appeal having been given by Mr. Justice Maloney, that Mr. Justice Labrosse failed or refused to decide that question whether or not the jury notice should be struck out. Certain observations made by Mr. Justice Labrosse in the course of his reasons are called in aid of that contention. At another point in his reasons, Mr. Justice Labrosse said [at p. 35 O.R., p. 469 D.L.R.]:
It would appear that the Rule [Rule 258] is mandatory and that the issue of a jury is exclusively within the discretion of the trial Judge and not within the discretion of a Motions Court Judge.
This again is used as support for the contention that what Mr. Justice Labrosse did was simply to adjourn the issue to the trial Judge and not to decide it.
We have considered carefully the reasons as a whole. It is notable that he referred to a number of prevailing authorities and in particular Martin v. Deutch et al.,  O.R. 683,  4 D.L.R. 600. Martin v. Deutch is an authority that governs this question and how it should be dealt with as between the Motions Court Judge and the trial Judge. Mr. Justice Laidlaw at p. 697 O.R., p. 607 D.L.R. and thereafter sets out the applicable law. In summary, he points out that the Rules require that a decision be made by the Judge to whom an application is made prior to trial. He observes that the Judge must make his decision as best he can and observes again what was obvious from prior cases, such as Bissett v. Knights of the Maccabees,  3 O.W.N. 1280, 3 D.L.R. 714, that the Motions Court Judge’s decision is not final and is not binding upon the trial Judge, and that it is open to an applicant to apply to the trial Judge for a reconsideration, if necessary, of the propriety of the jury notice.
A number of grounds have been argued before us which were intended to support the proposition that Mr. Justice Labrosse erred in principle, and that is an appropriate approach because we are dealing with a discretionary order and we are concerned with only error in principle or serious error of law.
We do not read Mr. Justice Labrosse’s reasons as amounting to a refusal or failure to decide the issue. As we read his reasons, they are merely a reflection of the law as he understood it and, in our view, his understanding of the law was correct. In our view, his words that “The defendants have failed to satisfy me in my function as a Motions Court Judge that the action should be tried without one [a jury]” contain the essence of his decision and show that he correctly appreciated the issue before him.
Thus, we do not read his words as merely being an adjournment of the application to the trial Judge. We read them as amounting to the decision that in accordance with his obligation under Martin v. Deutch, supra, he has decided the matter as best he could sitting as a Motions Court Judge. He merely then observes that, in effect, his decision is not binding on a trial Judge to whom an application might later be made. It is, of course, open in this case for a further application to be made by anyone who is unhappy with the decision made by Mr. Justice Labrosse.
In the result, we are of the opinion that the appeals should be dismissed with costs.