FAX TRANSMISSION COVER SHEET - Evans, Philp Law/Appeal Decision on an... · FAX TRANSMISSION COVER SHEET Ofrioe ofthe Regional Senior Justice SuperiotCourt of Justice Court House

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Ofrioe of the Regional Senior JusticeSuperiot Court of Justice

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Date June 27 2008

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PLEASE DELIVER THIS FAX TO

DavidJ Levy Fax 416 3610083Robert H Rogers Fax 905 525 7897

FIROM Kim TaylorOffice of the Regional SeniorJusticeCentral South Region

NUMBER OF PAGES including cover sheet 19

MESSAGE HamiitonDivlsionalCourt File DC 07 421Kayhan et al v Greve Heard February 19 2008

RSJ CSR Superior

Please find attached decision of the Divisional Court Panel in the above noted matter

JUN 27 2008 11 34 RSJ CSR Superior 905 645 5374 P 02 19

DIVISIONAL COURT FILE NO DC 07 421

DATE 2008M

ONTARIO

SUPERIOR COURT OF J USTICE

DIVISIONAL COURT

CMNINGUAM A C J STAYSHYN sind KITELEY JJ

BETWEEN

IIIASINA KAYHAN SAAIIA KAYHAN DavidJ LevyEIASHIM KAYHAN and ANSU for the Plaintiffs RespondentsKAYHAN PersonaHy SATA KAYHAN

MOJTABA KAYHAN and SONITA

KAYRAN by their Litigation GuardianHasins Kayban

Plaintiffs Respondents

and

Hflr EGARD GREVE RobertH Rogersfor the Defendant Appellant

Defendant AppeHant

HEARD Tuesday February 19 2008

Background

1 This is an appeal from the order of Borkovich J dated January 8 2007 wherein he

gmted the plaintiffs motion to sirike the defendantsjury notice at the 6onunencement of trial

The action arosc aut of a motor vehicle accident involvmg the plaintiff Hasina Kayhan and the

defendant Hildegard Greve which occurred November 16 1999 In her statement of claim


2

amongst other ffiings the plaintiffAegcs she smtained serious and permanent personal injuries

The defezidmt served ajury notice along with her stateinent ofdefence in February 2001

21 This trial was to commence January 8 2007 before BorkovichJ and a jury at Hamilton

At the opening of triaL the plaintiff moved to sti ike the defendants jury notice in order to have

the matter VW by a judge alonc This motioia was brought on the grounds that the plaintiff a

Muslim Canadian woman of Afghani descent would not receive a fair trial because of the

current political climate which stems not only froin the 9 11 atacks but subsequent terror and

attempted teryor attacks around the world a politicallycontroversialwar in Afghanistan and the

unformnate but very reaL existenceof racism in Canada

PI In support of thQ motion couasel for the Iaintiffrelied on the affidavit of Renee Vinett

dated January 2 200T Nls Vinett is aii associate at the law fkzn represeating the plaintiff A

copy of the affldavit was notprovided in the material on this appeal However the trumcript of

the proceedings provides considcrable detailas to the contents As described by W Rogers in

his submissions that the affidavit ought to be stuck the affidavit contained legal argument

conclusions of law and opinion evidence including the following flie growing controversy over

the presence of Canadian troops as peacekeepers in Afghamstan the high level of ammosity

between MusIitas and the Vestern world includingI

Canada copies of articles puzpo g to

express opiiiions ofpeople being put forward as experts conclusions about groups that are most

likely to be targets of rarisra ostensibly drawn from a pQll Mr Levy resisted the motion to

strike tiie affidavit

I JUN 27 2008 11 35 RSJ CSR Superior 905 645 5374 P 04 19

3

41 At page 19 of the transcript the trial judge made the following observation

But the question is this is it somedling I thats so notorious in the public that the

court could take judicial notice of it Id have to be a pretty dumb citizen to not

think that there is a considerable amouni of animosity against Muslims and Arabs

thats alive because of the circumstances that are happening in the world I mean I

heu it and I read it every day I hear it on the media and I hear staternents of our

goverxxment et cetera et cetera It seems to me the issue is how do I deal with it

not whether I strike the jury holus bolus but whether or not in fkimess it

should be dealtwithby doing a challenge for cause

5 At page 21 ofthe tvnscript the triaI judge r ed that the affidavit was not proper and that

hewould not rely on the material in the affidavit as it related to the issue of racism There is no

appeal from that decision As a result of that rdiiig there was no evidenceto support the motion

by the plaintiffs to strike the jury notice

6 After hearing the motion the trial judge struck the jury notice stating

I wn taking judieW notice that there is a strong risk a reasonable appreheasion

that there could be bias on the part of the jury based on a system where there are

no checks Prescreeniug is not an adequate check and there is no not like in a

cdminal case there is no opporumity to 6haUengeby way of cause in a civil case

I am of the view that Justices JenaiWs and Festeryga correctly concluded that

there was a strong possibility of bias given the circumstanoes and I am going to

strike the jury on this case

JUN 27 2008 11 351 RSJ CSR Superior 905 645 53 4 P 05 19

7 Leave to appeal in the present case was granted by Harris J on October 11 2007 He

concluded there was reason to doubt the correctness of the decision and further that the matter

involved issues of general ipiportance Harris J was of the icw that the case had taanifold

implications and required further conversation

Standard ofReview

8 The key issue in this case is whether the trW judge erTed in talcing Judicial notice that

there is a strong risk a remnableapprehension that there could be bias on the part of the jury

based on a system where there are no cheeks

9 The Supreme Court of Canada in Housen v Mkolaisen 2002 2 S C R 235 addressed

tho standard of reviewon an appeal from ajudges decision stating

On a piite question of law the basic rule with respect to the review of a trial

judges findings is that an appellate court is free to replace the opinion ofthe tW

judge with its own Thus the standard of review on a quesfion of law is ftt of

eorrectiless

The standard of review for findings of fact is thatsuch findings are not to be

reversed unless it can be established that the trial judge made a palpable and

ovemding eiTor see Stein E4tate v ThL KathyK 1976 2 S C R 802

Where the trier of fact bas consideredall the evidence that the law requires him or

her to consider and edU comes to the wrottg conclusion then this ainounts to an


5

error of mixed fact and law and is subject to a more stringent standard of review

than for findings of fact

10 The decWoh to strike the jury notice was a qtiestion of law We approach this appeal on

the basis thw the standard ofreview is correctness

Positions of the Parfies

fll While the issue ofjudicial notice is determinativeof the appeal that issue was considered

in the context of the jurisdiction of a UW judge to stfice a jury notice On this latter Point the

appellant began with the proposition that a party to civil proceedings is prima facie entitled to

have issues of fact tried or damages assessed by a jury relyiug upon s 108 l of the Courts Of

Justice Act R S O 1990 Chap C 43 Trial by jury is a substantive right of considerable

importance the appeUant argues which ought not to be taken away except for cogent reasuns

see Kingv ColonialHomesLtd 1956 S CR 528 at 533

12 Counsel for the appellant notdd that Jennings 1 in Abou Marie et al v Baskey et al

2001 56 O R 3d 360 S C J and Festeryga J inAmana Imports CanadaLtd v Guardian

Insurance Co of Canada 2002 57 O R 3d 587 S C J struck the civil juries in somewhat

simflar circumstances InAbou Marie supra the plaintiffis in a personal injury action were Arab

Muslitns The trial began on October 1 2001 mere weeks after the tragic everAs of September

1 1 2001 Jennings J struck the jury on the basis that s 108 2 12 of the Courts ofJustice Act

prohibited a jury in a claim against the inunicipality In dealing with the altemtive argument

that the jury sbould be struck Qn the basis of the climate created by the tragic events that had

JUN 27 200e 11 35 RSJ CSR Superior 905 645 53 4 P 07 19

6

occurred ffime weeks earlier he observed that challenge for cause is not available for civil

acdons in OtLtario and he held as follows

I am not confident that at the present tirne in the prevailing climate created by

unprmedented cove age in the media of the events to which I referred a strong

caution to the jury would be sufficient to ensure that all prejudices could be set

aside Although there appears to be no cases on thd subject if required to do so I

would have acceded to the plainfiTs request on the sewnd ground

In Amana Iniports supra the pininti was a limited company whose principals were

Palestinians and devout Muslims The tW started on January 14 2002 a proxima ely fourN r

months following September 11 2001 The plaintiff sued on a policy of insurance seeking

coverage for a theft The defeixdant denied that there had been a theft and alleged fraud

Credibility was the central issue Festeryga J was Uked to strike the jury notice served by the

defendant on duee grounds He declined to strike on the grounds of the relief sought and

complexity On the ground that there was a Uelihood of prejudice against the plaintiff if the

matter were tried by a jury he held as follows

I am satisfied that there has been much confusion by the people in Us community as

to the difference betweenMuslims and Hindus I am takingjudicial notice thm is a

perceived bias on non Muslims towards Muslims Tfus probability existed before

September 11 1200 1 but since then the PereePtion has in mY view been agLzravated

and become worse

JUN 27 2008 11 35 RSJ CSR Superior

7

905 645 5374 P 08 19

14 Festeryga J also observed that there are no provisions in the niles or in the Courts of

Justice Act in a civil matter for challenges forcause and that the Rules Conamittee and the

Legislature ought to address this issue because of the changing times

15 Counsel for the appellant noted that neither of those two decisions had been appeAed

He asserted that they had been wrongly decided and in any event were clearly distinguishable

froni the present case given the passageoftime sinee the events ofSeptember 11 2001

161 For completeness on the issue the appellant also referred to but did not rely on a

decisioa of Browrw J in 41 Haddadv London Middlesex County Roman Catholic Separate

School Board 1996 CarswellOnt 5047 Ct J Gen Div which involved a motion to strike a

jurY notice In that case the evidence consisted of correspondence between counsel in whiehI

it was alleged that the defendant had filed a jury notice for reasons related to the nationality of

the plaintiff and that ft might have been done for tactical purposes Browne J addressed the

issue on the basis that racial prejudice had been ackaowledged to be the true gmund for tfie jury

notice In para 12 ofhis reasons he stated

In general pre screening comments to a jury panel the presiding justice addresses

issues of personal hardship citizenshi understandingof language and ability to

hear In criminal trials ihere is a statutory right for chaHeage for cause with

certain procedure being specified That procedure takes the issue of

determmation of a jurors partiality oiA of the hands of the ftial judge and places

the issue of pmlWity in the hands of the itzors triers The trial judie in a

criminal case cannot usurp this statutory function of the jurors There is no such

statutory right in civil cases In my view the tdal judge in a civil rase may ask


prospective jurors pre screemug quesfions Such pre screening questions might

well be with the consent ofcounsel and or agreement as to the particulars of pre

screeiiing questions But absent such a consent in my view the presiding justice

at a civil tial can pre screen upon racial bias and tnight well consider a question

along thLe following lines

Would your ability to judge the evidence in this cme without bias

prejudice or partiaEty be afibcted by the fact that the plaintiffs are of

descent If so please signify and your individual cornments vvill be

considered

171 The respondents while agreeing that the right to have an action tried by a jury is a

substantive right say it is not absolute pointing to s 108 2 of the Courts ofJustice 4ct wWch

ouftes a number of situations where an action must be tried without a jury irrespective of the

wishes of the parties It is a matter of judiciaI discretion they say when a tW judge is faced

with a motion pursuant to s 108 3 of the Courts ofJustice Aet to discharge a jury argumg that

the test for discharging a jury confem a broad discretion on the court recognizing that the

paramount objective of our civil justice system is to provide thLe means by which a dispute

between parties em be resolved in the most just inanner possible

18 On the key issue in this ippeal ofjudicial notice counsel for the appellant argued that the

present dccision was reached in an evidentiary vacuurn and was based on the race country of

origin and rchgion of the plaintiffs not on any individual qualities of the plaintiffs thmselves or

any other specific factors He asserted that the decision has significant ramifications wWch

transcend the present dispute arguing that it stands as a geiieral basis for brohibitingcivil aials

involvingpenons of the Arab ntoe Afgbani origin or Musbm faith Counsel took the position


9

1

905 645 5374 P 10 19

that this would lead to an impossible result applying equally to sitaations involving any

identiflableminority

19 The appellant fluther argued that the tnal judge impropeTly rehed upon judicial notice of

unsubstantiated social 4facts In P v Fin4 2001 1 S C R 863 the Supreme Court of Canada

identified the parameters ofjudicial notice at para 48 as follows

FMerefore the threshold for judicial notice is strict a court may prbperly take

judir ial notice of facts that are either I so notorious or generally accepted as not

to be the subject ofdebate among reasonablepersons or 2 6apable of immediate

and accurate demonstration by resort to readily accessible sources of irulisputable

accuracy P Y Pbtts 1982 66 C C C 2d 219 Ont C A l age 887 I

Sopinka S N Lederman and A W Bryant The Law ofEvidence in Canada 2nd

a 1999 at p 1055

201 The appellant argued that the trial judge implicitly concluded that Hamfltonians harbour

negative racist prejudices against Afghanis Axabs and or MusIims and that ajury selected from

the Hanlilton coTnmiinity could not be tusted to abide by the oath of impartiality dven after

receiving appropriate instructions Counsel asserted that the trial judge had no evidence bcfore

him to support such a conclusiorL Counsel also submitted that it is not possible to recognize

such facts as being so notorious as to be beyoiid the scope of reasonable debate and nor can

recourse be had to any authoritativereference source Canada it was argued is an inclusive and

tolerant society in which there is a presumption a juror will be able to impartially disebarge his

or herresponsibilitiesto the adrnin stration ofjustice


10

1

905 645 5374 P 11 19

211 On the issue of judicial notice the reIP6ndents in their factum referred to Canadian and

Ontario coinu that have taken judicial notice of the widespread existence of racisiii in Canada

and that that is important given the neu impossible task of proving racism At the time of

the motion counsel for the respondents noted that in Abou Marie supra and inAmana Imports

supra there had been no evidence such as what had been offered to and rejected by the trial

Judge and yet both Jennings J and Festeryga J had arrived at the conclusions they did As

indicated at page 29 of the tauscript counsel had argued that nothing has changed since

September 11 2001 He insisted that the debate ha d gotten more fierce and had extended

from New York City and Washington to around the globe He referred to the war on terroe as

the fight in Afghanistan in which Canada has been involved He suggested to the trWjudieffia

the additional factor was that the plaintiff was from Afghanistm He had cricouraged the tiial

iiidge to takejudicial nbtice of the climate that exists At page 30 of the transcript he took the

position tmt

the plaintiiTs name the names of her family menibers her skin colour her

country oforigin the fact that people will look at her and see a Muslim and perhaps

not understarld the difference between Mulslims not disdnguish between Muslitk

Arabs and terrorists There is a very real apprehension that this plaintiff wiU not be

able to get a fairtrial in front ofwhat we expectwiU be an a whitejury

221 In this appeal counsel for the rtspondents argued that although there was no evidence

before the ftial judge due to the fact that the uial judge had struck the afFidavit this did not

mean that the exercise ofhis discmtion was arbitrary or capricious


z

Ama ysis

C231 There is consensus that the trial judge has a broad discretion in detennining whether to

strike ajtiry notice We tum to the issue ofjudicial notice

24 The case before us involves events which occurred on November 16 1999 and a trial

scheduled to commence January 8 2007 five years and four months following the events of

September 11 2001

25 Mr Levy described the main plaintiff as a dark skinned Muslim woman from

Afghanistaia Before the trial judge he argued that the question was whether she could receive

a fair trial with a jury

26 As indicated at page 19 of the transcript the trial judge properly instructed hiniself

albeit in the context of whether the affidavit oiight to be struck on the fifst of the two criteria

identified in R v Fine4 supra He queried whether there was soraeWng so notorious in the

public ffiat the court could take judicialnotice ofit

273 However the uial judge Nled to consider the woond of the two criteria identified in k v

Fing supra whether the facts that are so nQtorious or generally accepted were capable of

immediate and accurate demonsuafion by resort to readily accessible sources of indisputable

arcuracy


12

28 During submissions as to whetherthe affidavit should be struck the transcript notes the

observation ofthe tW judge at page 25

I believe although the affidavit I think is incorrect I think that given theI

circumstances that I could take judicial notice of the situation that there is Some

disaiminationagainst Muslims and Arabs

291 During submissions on the motion to strike the jury notice the tial judge referred to his

reading of the political siMation in the tTaited States that the election in 2004 had been won

largely because of the vote ofpeople who couldnt distinguish betweenMuslims and terrorists

page 32 that the situation since the decisions of Festeryga J and Jennings J had not gotten

worse but had been compounded page 33 dua the issue was as Nlr Levy had framed it that

the general population bas a great deal of difficWty distingLlisWag between a Muslim and a

teuorise page 33 thLat the popuMon of Canada had been misled about the Arar case page

34

VAiile he did not return to such observations in rendering the decision referred to in

paragraph 6 above we infer that such considerations informed his decision

31 We are of the view that the tdal judge cued in his reliance on judicial notice to support

his decision that there isa strbni risk a reasonable apprehension that there coiild be bias on the

part of the jury Assuming for the raoment that the fmt critenon has been met there is no basis

for concluding that the second criterion has been considered or met


13

905 645 5374 P 14 19

321 fn her reasons MeLachlin C J C in P v Find supra identified a two fold test when

juror partiality is at issue At para 32 the Supreme Court held as follows

I

As a practical matter establishing a realistic potential for juror partiality generally

mquires satisfying the court on two matters 1 that a Aridespread bias exists in the

cotmnunity and 2 that soine jurors may be incapable of setting aside this bias

despite aial safeguards to render an impartiaI decision These two corhponents of

the chaUenge for cause test reflect respectively the attitudinal and behavioural

components ofpartiality referenceomitted

331 The SupTeme Court aIso dealt tvith thd concepts of bias and wide spread when

dealing with the test for paftiaUty At para 40 the Chief Justice concluded given that trial

procedures have been in place over centuries to counter biases the trial process is sufficient to

cleanse jurors views and biases

34 As the Chief Jusfice held theie are two components to bias the attitudinal component

i e the existence of a lack of impartiality and the behavioural link i e that the juror is not

capable ofsetdng aside the bias

35 Even if the tiial judge had a basis for doing so it is not enough to simply take judicial

notice of inherent preiiidices on the part of potential jurors in a case involving certain

minorities Arguably minorities in Canada have suffered from intolerance and prejudice

Neverdieless the trial pTocess has prevailed Needless to say given the tugic events of

September 11 200 1 and the subsequent terrorist attwks linked to radical Muslims there thay be

a level of caution in Canada which may in some people have expanded to outright bias and

prejudice To conclude however that poiential civil jurors would be impossibly tainted vvithout


14

905 645 5374 P 15 19

any supporting evidence and that the lack of lmpWiality would cause them to be unablc to set

aside their bias notwithstandingprocedural safeguards would be to improperly exercisejudicial

discretion

36 We conclude as the appeHant has argued by taking judicial notice as he did the trial

judge iiiade a palpable and overridiiagerror It is not possible to recogrdze the facts that he did

as being so notorious as to be beyond the scope of reasonable debate Furthirmoie the

behavioural link between the exiswnee of a lack of irupartiality and the inability to set those

biases aside was not established Accordingly the appeal must be allowed and the matter

remitted to a different trial judge

Challengesfor Cause in C Jury Cas s

1 371 14aving disposed Of the appeal we tum now to the issue of challenges for cause in civil

jury cases While it is not neoessary to address this issue in view of the submissions madeon

this point before4he trial judge and before us we make these observations

381 We acknowledge there is no recogmized procedure in Ontario for challenges for cause in

civil cases We also apknowledge it is not prohibited Some niight suggest the tiine has come

for the Civfl Rules Committee and the Legislature to give colisideiationto this issue given the

raPidly changing natijre of Canadiansociety We do not

1391 We recognize that inAbou Marie suprg and iii 4mana Imports supra the judges each

observed that chaRenges for cause were not available in civil actions aiid in Al Haddad supra

tboere was reference to the prescreening ofjurors In the case before us the trial judge also held

I that chaUenges for cause were not available

JUN 27 2008 RSJ CSR Superior 905 645 5374 P 16 19

40 We recognize as well that Ontario rourts have consistently applied the remnable

possibility ofpartiality test as the appropriate standard in crimiual cases in a determinationof

whether there should be a challenge for cause The issues as to whether a cUlenge for cause

should be permitted as a iesult of the nationaUty of the accused and or the complainant or the

nature of the offcnce are far diff nt from whether there should be a jury at all

4111

What are the ramifications ofa cliallenge for cause in civil matters First of all there is

the potential as the appeEaut suggests of never having civil jury cases in Ontaiio involving

mfmben of minority groups who may feel aggrieved This in our vicw is a wholly untenable

resWt imd does not accord with Canadas reputation as an open and tolerant multi culnu9

society

42 The other ramification is that there would be considerabledelay and expense involved in

many civil cases in large urbm centres Evidence woWd need to be brought to the attention of

the trW judge on the issue of potential prejudioe We already have a civ system that is

seriouslyoverloaded and to this extent chaUenges for cause in civil casw would not do anything

but to inerme the current backlog

Conclusion

431 As indicated above the appeal is aJlowed and the mauer is remitted to a different tW

judge

441 In the factum of the respondents counsel asked that the appeal be dismissed on terms

that will prevent the appellant from benefiting from the delay caused by tWs appeal Having


16

allowcd the appeal we assume that the raatter WM proceed as expeditiously as possible and that

any issues arising from delaywfll be addressed by the trial judgc

45 Unless counsel are able to agree as to cosis of this appeal subriiissio

provided within 15 days of the relewe of these reasons

Addendum by KiteleyJ

461 1 agree with the majority as to the disposidon of the appeal for the reasons given

However I depait from niy colleagues only on their remarks in obiter on the subject of

challenges for cause in civil actions

r

47J The Ontado JuriesAct R S O 1990 c J 3 enables peremptory chaUenges It is silcnton

cliaUenges for cause Eight other proviaces or territories permit challenges for cause by statute

in 12 2 of Albmtas Jury Act R SA 2000 c J 3 s 20 oP Prince Edward Islands Jury Act

R S PX I 1988 c J 5 1 and s 28 of Saskatchewans 7he J ry Act 1998 S 1998 c J 4 2

challenges for cause are permitted for a number of specified grounds in s 20 of British

ColumbiasJuryAct R S B C 1996 c 242 and s 33 ofManitobas The JuryAcr Ksm 1987

c J30 such chaUenges are authorized without idenfiting any limits on the chaUenge s 31 of

Newfouiadland aud LabradorsJwyAct SNL 1991 Chapter 16 provides that the presidingjudge

may try and determinc the suf iciency of a chaUenge for eause s 20 of the Northwest


17

Tcrritories Jwy Act R S N W T 1988 c J 2 and s 16 3 of Nova Scotias Juries Act S N S

1998 c 16 botbpxovide that any party may challenge for cause

48 The criminal cases on this topic are in the contekt of whether there will be a challenge

for cause not whether there wfll be a jury In civil cases in Ontario it is an all or nofliing

proposition If the Legislature saw fit to facihtate challenge for cause in civil matters iia Ontario

thexight to a trial byjury that now exists would not be undermiriedby the inabdity to challenge a

potential juror on the grounds that the juroT would be unable to set those biases aside and judge

the niatter fairly As is evident J om comments on pre screening by Browne J in Al Haddad

suprg by Jennings J in Abou Marie supra by Festeryga J in Amana Irnports supra and by

BorkovichJ in the case before us where the tW judge was struggling with this issue it is clear

that this is a matter which needs a legislative response

Released June 2008


DIVISIONALCOURT FILE NO DC 07421

DATE 20080z

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A C J STAYSHYN and

IUTELEY JJ

BETWEEN

HASINA KAYHAN et al

and

HILDEGARD GREVE

Plaintiffs Respondents

DefendantAppellant

REASONS FOR JUDGMENT

Released June

TOTAL P 19

Documents

FAX TRANSMISSION COVER SHEET - Evans, Philp Law/Appeal Decision on an... · FAX TRANSMISSION COVER SHEET Ofrioe ofthe Regional Senior Justice SuperiotCourt of Justice Court House