Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S e p t e m b e r 2 0 1 4 7 Regional wRap-up AtlAntic w hen is a case too complex for a jury? That was the question the Nova Sco- tia Court of Appeal tackled — and answered — in Cyr v. Anderson. "The decision clarifies that juries are to be presumed as competent as judges to answer questions of fact. Where a case involves only factual controversies, and even if the facts are quite compli- cated, the court should be reluctant to take it away from a jury," says Scott Campbell, an associate with Stewart McKelvey in Halifax and co-counsel for the appellants in the case. Justice David Farrar concluded that parties have a prima facie, substantive right to a jury trial in Nova Scotia and to presume judges have superior abilities to juries is patronizing. "While justice may require some cases to be heard by a judge rather than a jury, there is a paternalistic aspect to some cases that suggest that juries are less capable than judges," he wrote in his 26–page decision. This case involved a lawsuit for dam- ages arising from a motor-vehicle acci- dent. One driver, Mary Cyr, admitted fault for the accident and sought to have a jury trial, which would determine causation for the injuries and the quantum of dam- ages. The respondent objected and made a motion to set aside the jury notice, which was allowed. Cyr and Enterprise Rent-A- Car appealed that decision. Although the rules governing civil jury trials differ across Canada, lawyers outside Nova Scotia may still be interested in what Farrar has to say in his decision. "The Court of Appeal has clearly and concisely articulated a set of thoughtful and useful principles, which I think will be broadly helpful across the country," says Campbell. Among the 10 conclusions cited in the decision are: • Factual complexity, by itself, will rare- ly be sufficient to strike a jury. For exam- ple, cases calling for medical, scientific, or other specialized knowledge on the factual issues with conflicting and contradictory opinions from experts should not, save in the rarest of cases, be taken from a jury. • The fact judicial instruction on the law may be difficult is not itself a ground for striking a jury. • The length of the trial is not alone a reason to strike a jury notice. Lawyers and judges, at least in Nova Scotia, will want to pay close attention to all Farrar's conclusions. "Counsel will need to be more prudent in deciding whether and when to challenge a party's expressed desire for a civil jury trial," notes Camp- bell. "Likewise, I think motion judges will become more conservative in striking jury notices." — DoNALee MouLtoN donalee@quantumcommunications.ca T he Nova Scotia government has appointed Catherine tully, ex-director of privacy and access to information for Canada Post in ottawa, as its new freedom of information and protection of privacy review officer. the appointment came as a surprise to at least one person — the former FoI officer. earlier this year, the provincial government opted not to renew Dulcie McCallum's contract as the province's review officer after her seven-year term ended and following her release of a controversial report critcizing the government for failing to provide former foster children with information about their biological families. Now McCallum and the leader of the PC Party, among others, are calling for the position to become an independent officer of the legislature similar to that of auditor general. Nova Scotia is one of two jurisdictions in the country that does not follow this independent model. Currently, cabinet alone decides on the appointment and has the power to replace the officer at the end of his or her term without the legislature's approval. there is an indirect reporting structure in place, however. "the position in Nova Scotia is a unique hybrid in that we actually do report to the legislature by tabling our annual report there, while the Department of Justice handles the administrative functions of human resources and technical support," says Carmen Stuart, acting review officer. "the Department of Justice has always maintained a scrupulous distance from our oversight operations, but it is, of course, a public body under the act, and we have to conduct reviews of its decisions from time to time. that is different from our counterparts, the more fully independent officers of the legislature like the auditor general and the ombudsman." tully, a former assistant information and privacy commissioner for British Columbia, assumes her new duties this month. She'll have numerous complaints waiting for her to address. the province usually receives more than 100 access-to-information complaints each year along with a handful of privacy complaints. Resolving the issues can be tricky. "there are tensions between the government's need to have free and frank discussions of its options and citizens' right to know, but this is where the independent oversight of the review office comes into play," says Stuart. "Because the review officer makes recommendations rather than binding orders, we can have a more flexible process than either an order-making commissioner or the courts." — DM New fOI OffIcer fOr N.S. read Cyr v. Anderson at canlii.ca/t/g70b9 Presuming judges better than juries 'Paternalistic'

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