1. law, govt and politics

JUN 27 2008
RSJ
34
905
Superior
CSR
645 5374
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01
FAX TRANSMISSION COVER SHEET
Regional Senior Justice
Ofrioe of the
Superiot Court of
Telephone
Justice
905 645 5323
Court House
905 645 5374
Fax
45 Main Street East Suite 721
Hamilton Ontario
L8N 2BT
June 27 2008
Date
ATTENTION
Thisfaesm
may contoin PPJVILEGED and CONFIDENTIALINFORMATION
onlyforwe of ft addmmee s
nowdbelow
lfyouammftlmffWWrecoartofthis
delivedN ft tD the inteMed ramplerd you am hnby notilledl ft any dissominatm ar coWng of thia kWmUe Is
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f
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or the
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fa
YOU
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prtnnt documerd tal6oopi6 pout 00molir des RENSEIGNEMENTS PRjV LEGE ET CONFIDENTIELS destlr
mentioret6cis4eswus Si w
n
ies pas le desthatmedo ce do
glealuW ass p2r
prandre des
mosures pour nous eDoumer w docLmom ou jo ohirp
PLEASE
DELIVER THIS
David J
Kim
px
wmur
vedlez mm
merei
FAX TO
Levy
Rogers
Fax 416 3610083
Robert H
FIROM
eydwvemem aux pemnnes dont le nom OK
rmem reVoo ou aget mspmmble dole dolMr a son dednatwm vous 6W par a pels
Fax 905 525 7897
Taylor
Office of the Regional Senior Justice
Central South Region
NUMBER OF PAGES
MESSAGE
including
cover
sheet
19
Hamiiton Divlsional Court File DC 07 421
Kayhan
et al
v
Greve
Heard
February
19 2008
Please find attached decision of the Divisional Court Panel in the above noted
matter
ou
19
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DIVISIONAL COURT FILE NO
DATE
DC 07 421
2008M
ONTARIO
SUPERIOR COURT OF J USTICE
DIVISIONAL COURT
CMNINGUAM A C J
STAYSHYN sind KITELEY JJ
BETWEEN
IIIASINA KAYHAN SAAIIA KAYHAN
David J Levy
EIASHIM KAYHAN and ANSU
for the Plaintiffs
KAYHAN
Respondents
PersonaHy SATA KAYHAN
MOJTABA KAYHAN and SONITA
KAYRAN by their
Hasins
Litigation
Guardian
Plaintiffs
Respondents
Kayban
and
Hflr
EGARD GREVE
Robert H
Rogers
for the Defendant
Defendant
Appellant
AppeHant
HEARD
Tuesday February
19 2008
Background
1
This is
an
appeal
from the order of Borkovich J
gmted the plaintiffs motion
to
sirike the defendants jury
January 8 2007
dated
notice
at
The action
arosc
defendant
Hildegard Greve which occurred November 16 1999
aut of a motor vehicle accident
involvmg
the
wherein he
the 6onunencement of trial
plaintiff
Hasina
Kayhan
and the
In her statement of claim
19
JUN 2
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2008
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2
amongst other ffiings the
The defezidmt served
This trial
21
At the
ajury notice along with her stateinent
by
Muslim Canadian
a
the
judge
woman
plaintiff
of
teryor attacks
of defence in
February
8 2007 before Borkovich J and
a
2001
jury
at
Hamilton
moved to sti ike the defendants jury notice in order to have
This motioia was
alonc
Afghani
current political climate which
attempted
January
to commence
was
opening of triaL
the matter VW
plaintiff Aegcs she smtained serious and permanent personal inj uries
brought
on
the
descent would not receive
only froin the
stems not
around the world
a
a
grounds
that the
plaintiff
the
fair trial because of
9 11 atacks but
a
subsequent terror
and
politically controversial war in Afghanistan and the
unformnate but very reaL existence of racism in Canada
In support of thQ motion couasel for the
PI
dated
January 2 200T
Iaintiff relied
on
Nls Vinett is aii associate at the law fkzn
copy of the affldavit was not provided in the material on this
the
proceedings provides
his
submissions
ought
to
peacekeepers
However the
trumcript
As described by W
the affidavit contained
be stuck
conclusions of law and opinion evidence including the
represeating the plaintiff
appeal
considcrable detailas to the contents
that the affidavit
the affidavit of Renee Vinett
legal argument
following flie growing controversy over
Afghamstan
high level of ammosity
troops
between MusIitas and the
Vestern
express opiiiions of people
being put forward as experts conclusions about groups that
in
of
Rogers in
the presence of Canadian
as
A
the
I
likely
to be
targets of
strike tiie affidavit
rarisra
world
including
ostensibly drawn
from
Canada
a
pQll
copies
Mr
of articles puzpo
Levy
g to
are most
resisted the motion to
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41
transcript the trial judge made the following observation
At page 19 of the
question is
But the
court could take
this is it
judicial
think that there is
a
somedling thats
I
Id have to be
notice of it
thats alive because of the circumstances that
I hear it
It
goverxxment et cetera et cetera
not
whether I strike the
should be dealt with by
5
At page 21 of the
hewould not rely
on
6
After
I
to
result of that
on
no
not an
I
mean
but whether
or
not in fkimess it
cause
ed that the affidavit was not proper and that
r
as
it related to the issue of racism
was no
There is
strong
strike the jury
on
possibility
this
strong risk
a
reasonable appreheasion
a
system where there
adequate check and there is
case
JenaiWs
of bias
and
given
no
evidence to support the motion
struck the jury notice stating
a
I
our
no
are
not like in
a
opporumity to 6haUengeby way of cause in a civil case
I am of the view that Justices
a
and Arabs
the issue is how do I deal with it
the part of the jury based on
Prescreeniug is
cdminal case there is
there was
me
rdiiig there
taking judieW notice that there is
checks
in the world
to not
strike the jury notice
that there could be bias
no
the triaI judge
pretty dumb citizen
happening
holus bolus
hearing the motion the trial judge
wn
to
seems
the material in the affidavit
a
are
that the
the media and I hear staternents of
on
doing a challenge for
tvnscript
appeal from that decision As
by the plaintiffs
jury
a
public
animosity against Muslims
considerable amouni of
heu it and I read it every day
notorious in the
so
Festeryga correctly
concluded that
the circumstanoes and I am
going to
19
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7
1
35
Leave to
concluded there
RSJ
appeal
in the
905 645 53
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present
case was
reason to doubt the
was
involved issues of general
implications
CSR
ipiportance
granted by
correctness
Harris J
on
October 11
P 05
4
2007
of the decision and further that the
He
matter
icw that the case had taanifold
Harris J was of the
and required further conversation
Standard of Review
8
The
there is
a
key issue
strong risk
in this
a
case
The
Supreme
a
are no
erTed in
an
v
appeal from ajudges decision
judge with its
is that
own
an
appellate
court
2002
Mkolaisen
on
the part of the jury
is free to
Thus the standard of review
2 S C R 235 addressed
stating
piite question of law the basic rule with respect
judges findings
talcing Judicial notice that
cheeks
Court of Canada in Housen
tho standard of review on
On
judge
remnable apprehension that there could be bias
based on a system where there
9
is whether the trW
to
the review of
a
trial
replace the opinion of the tW
on a
quesfion of law is ftt
of
eorrectiless
The standard of review for
reversed unless it
ovemding
eiTor
can
see
findings of fact
is thatsuch
be established that the trial
Stein E4tate
v
ThL
KathyK
judge
findings
are not to
made
palpable
a
and
1976 2 S C R 802
Where the trier of fact bas considered all the evidence that the law requires him
her to consider and edU comes
to
be
the wrottg conclusion then this ainounts to
or
an
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of mixed fact and law and is
error
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 of review is correctness
Positions of the Parfies
ofjudicial
While the issue
fll
in the context of the
jurisdiction
notice is determinativeof the
of
a
UW
appellant began with the proposition that
have issues of fact tried
Justice Act
importance
see
R S O
the
appeUant
2001
56 O R
Insurance Co
S C J
of Canada 2002
simflar circumstances
Muslitns
The trial
2001
Jennings
prohibited a jury
in
party
ought
on
57 O R
claim
jury
a
on
Qn
that issue
jury notice
proceedings
jury relyiug upon
a
2001
at
Point
SCJ
plaintiffis
the basis that
the
is prima facie entitled to
108 l
s
substantive right
of the Courts
of
Of
considerable
reasuns
533
s
In
Imports
struck
in
mere weeks
the basis of the
considered
be taken away except for cogent
inAmana
3d 587
was
On this latter
Jennings 1 in Abou Marie
against the inunicipality
that the jury sb ould be struck
a
civil
not to
Festeryga J
October 1
J struck the
to
S CR 528
notdd that
and
stfice
by jury is
Trial
In Abou Marie supra the
began
a
1956
appellant
3d 360
C 43
argues which
King v ColonialHomes Ltd
Counsel for the
a
to
damages assessed by
Chap
1990
12
11
or
judge
appeal
a
et
al
v
Baskey
Canada Ltd
the
et
al
Guardian
v
civil juries in somewhat
personal injury action were Arab
after the
tragic
everAs of
September
108 2 12 of the Courts of Justice Act
dealing with the
climate created by the
altemtive argument
tragic
events
that had
19
11
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6
occurred ffime weeks earlier
he observed that
challenge
for
is not available for civil
cause
acdons in OtLtario and he held as follows
I
am
unprmedented
caution to the
aside
present tirne in the prevailing climate created by
not confident that at the
age in the media of the events to which I referred
cove
jury
Although
would be sufficient to
there appears to be
thd
no cases on
Iniports
supra
Palestinians and devout Muslims
r
N
months
following September
coverage for
Credibility
defendant
a
theft
complexity
du ee
On the
matter were tried
grounds
2001
The
plaintiff
Festeryga J
He declined
to
was a
was
January
sued
Uked
strike
on
to
the
Uelihood of
I
so
were
2002
14
on a
policy
a
a
proxima ely
four
seeking
of insurance
theft and
alleged
fraud
strike the jury notice served by the
grounds
of the relief
prejudice against
the
sought and
plaintiff
by a jury he held as follows
there has been much confusion by the people in Us community
the difference between Muslims and Hindus
perceived bias
September
on
do
principals
limited company whose
a
was
The tW started
ground that there
I am satisfied that
to
pininti
to
ground
The defeixdant denied that there had been
the central issue
was
on
11
the
strong
could be set
subject if required
would have acceded to the plainfiTs request on the sewnd
In Amana
prejudices
that all
ensure
a
11
on non
1200 1
and become worse
I
am
Muslims towards Muslims
but since then the
taking judicial notice thm
Tfus
PereePtion has in
probability
as
is
a
existed before
mY view been
agLzravated
if the
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Festeryga
14
Justice Act in
a
also observed that there
J
civil
for
matter
challenges
are no
provisions
in the niles
in the Courts
or
of
forcause and that the Rules Conamittee and the
Legislature ought to address this issue because of the changing times
15
appellant
Counsel for the
He asserted that they had been
froni the present
For
161
case
noted that neither of those
wrongly
decided and in any event
on
the issue
the
appellant
decisioa of Browrw J in 41 Haddad v London
School Board 1996 CarswellOnt 5047
jurY notice In that
were
clearly
given the passage of time sinee the events of September
completeness
11 200 1
a
on
County Roman Catholic Separate
which involved a motion
Gen Div
evidence consisted of
the
case
Ct J
distinguishable
but did not rely
also referred to
Middlesex
appeAed
decisions had been
two
to
correspondence between counsel
strike
a
in whieh
I
it
was
the
alleged that
plaintiff and
issue
on
notice
the defendant had filed
that ft
might
a
jury
In general pre
hear
screening comments
procedure
ihere is
criminal
case
a
a
pmlWity
ackaowledged
to
be the true
jury panel
the
gmund
understanding of language
partiality oiA
That
procedure
takes
of the hands of the ftial
in the hands of the
itzors triers
cases
In my view the tdal judge in
and
judge
ability
cause
the
The trial
a
of
for tfie jury
presiding justice addresses
cannot usurp this statutory function of the jurors
statutory right in civil
nationality
Browne J addressed the
statutory right for chaHeage for
being specified
determmation of a jurors
the issue of
to
hardship citizenshi
In criminal trials
certain
related to the
he stated
reasons
issues of personal
reasons
have been done for tactical purposes
the basis that racial prejudice had been
In para 12 of his
notice for
r ase
of
places
judie
There is
civil
with
issue
and
to
no
in
a
such
may ask
19
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prospective jurors pre screemug
quesfions
Such pre
agreement
particulars
the
or
screeiiing questions
consent in my view the
at a
civil tial
pre
can
screen
a
upon racial bias and
09
screening questions might
well be with the consent of counsel and
But absent such
P
905 645 5374
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as to
of pre
presiding justice
tnight well consider a question
along thLe following lines
ability
Would your
to
judge the evidence in this
without bias
cme
prejudice or partiaEty be afibcted by the fact that the plaintiffs
descent
If
please signify
so
are
and your individual cornments
of
vvill be
considered
The
171
respondents while agreeing
substantive right say it is not absolute pointing
ouftes
a
number of situations where
wishes of the
with
the
a
parties
It is
motion pursuant to
test
for
discharging
paramount objective of
between parties
18
On the
em
and
any other
s
108 3
civil
a
ofJustice
is
a
jury
is
a
to
jury irrespective of the
say when a tW
Aet to
on
a
judge
discharge a jury
the court
provide thLe
means
is
faced
argumg that
recognizing that the
by which
a
disput e
be resolved in the most just inanner possible
was
reached in
specific factors
an
of judicial notice counsel for the
evidentiary vacuurn
not on
and
was
He asserted that the decision has
of the Arab
ntoe
appellant argued that the
based
on
the
race
country of
any individual qualities of the plaintiffs thmselves
present dispute arguing that it stands
involving penons
they
broad discretion
justice system
rchgion of the plaintiffs
transcend the
of the Courts
by
108 2 of the Courts of Justice 4ct wWch
to s
action must be tried without
an
jury confem
our
to have an action tried
matter of judiciaI discretion
key issue in this ippeal
present dccision
origin
a
a
right
that the
Afgbani origin
as a
or
or
significant ramifications wWch
geiieral basis for brohibiting civil aials
Musbm faith
Counsel took the position
19
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that this would lead to
an
impossible
applying equally
result
to
sitaations
involving
any
identiflable minority
The
19
appellant fluther argued that the tnal judge impropeTly rehed upon judicial notice of
unsubstantiated social
4facts
In P
v
identified the parameters ofjudicial notice
FMerefore the
para 48
at
P
accuracy
a
Pbtts
Y
by resort
1982
notorious
so
at
to
readily
Bryant
a court
or
Court of Canada
219
The Law
may
prbperly
generally accepted
or
2
accessible
2d
66 C C C
S N Lederman and A W
1999
The
201
I
Supreme
follows
subject of debate among reasonablepersons
and accurate demonstration
Sopinka
as
for judicial notice is strict
threshold
judir ial notice of facts that are either
to be the
1 S C R 863 the
Fin 4 2001
Ont
take
as not
6apable of immediate
sources
CA
ofEvidence
of irulisputable
l
age 887
I
in Canada 2nd
p 1055
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
receiving appropriate
hi m to support such
such
facts
recourse
tolerant
or
as
be had
society
to
instructions
a
being
could not be tusted to abide
conclusiorL
so
notorious
Counsel asserted that the trial judge had
Counsel also submitted that it is
as
to be
beyoiid the
any authoritativereference
in which there is a
herresponsibilitiesto
by the oath of impartiality
source
Canada it
ofjustice
was
possible
argued
be able to
is
after
evidence bcfore
to
recognize
scope of reasonable debate and
presumption a juror will
the adrnin stration
not
no
dven
an
nor can
inclusive and
impartially disebarge his
19
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On the issue of judicial notice the
211
reIP6ndents
widespread
Ontario coinu that have taken judicial notice of the
and that that is
given
important
the motion counsel for the
the
neu
impossible
and yet both
indicated
at
September
Jennings J
page 29 of the
11
2001
the
fight
the
additional
in
tauscript
iiidge to takejudicial
was
Washington
that
had been offered
the
at
At the time of
racism
debate ha d gotten
to around the
globe
from
more
rejected by
the trial
has
fierce
to
the
changed
As
since
and had extended
war on
terroe
as
suggested to the trWjudieffia
Afghanistm
nbtice of the climate that exists
nothing
He referred
been involved He
plaintiff was
and
to
the conclusions they did
counsel had argued that
Afghanistan in which Canada has
factor
of proving
and Festeryga J had arrived
He insisted that the
from New York City and
task
existence of racisiii in Canada
respondents noted that in Abou Marie supra and inAmana Imports
supra there had been no evidence such as what
Judge
in their factum referred to Canadian and
He had
At page 30 of the
cricouraged
transcript
the tiial
he took the
position tmt
the
plaintiiTs name
the
names
of her
family
menibers her skin colour her
country of origin the fact that people will look at her and
not understarld the difference between
Arabs and terrorists
able to get
221
In this
a
a
very real
fairtrial in front of what
appeal
counsel for the
before the ftial judge due
mean
There is
to
Mulslims
we
not
Muslim and
disdnguish
between
perhaps
Muslitk
apprehension that this plaintiff wiU
expect wiU be
rtspondents argued
the fact that the uial
that the exercise of his discmtion was
see a
judge
arbitrary
or
an
that
a
not be
whitejury
although there
was no
evidence
had struck the afFidavit this did
capricious
not
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z
Ama
ysis
C231
strike
24
There is consensus that the trial
ajtiry
The
case
scheduled to
September
25
before
commence
us
has a broad discretion in
whether
to
ofjudicial notice
involves events which occurred
January
detennining
on
November 16
1999 and
a
trial
8 2007 five years and four months following the events of
11 2001
Mr
Levy described the main plaintiff
Afghanistaia
a
We tum to the issue
notice
judge
as
a
dark skinned Muslim
woman
from
Before the trial judge he argued that the question was whether she could receive
fair trial with a jury
26
As indicated
albeit in the
context
identified in R
v
19 of the
transcript
of whether the affidavit
Fine4
public ffiat the court
273
at page
supra
He
oiight
the trial
to
judge properly instructed hiniself
be struck
queried whether there
was
on
the fifst of the two criteria
soraeWng
so
notorious
in the
could take judicial notice of it
However the uial judge Nled to consider the woond of the two criteria identified in k
Fing supra whether the facts that
are
immediate and accurate demonsuafion
ar curacy
so
by
nQtorious
resort to
or
generally accepted
readily accessible
were
sources
of
v
capable of
indisputable
19
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During
28
submissions
observation of the tW
I believe
as to
judge
although
whetherthe affidavit should be struck the
at page
transcript
notes the
25
the affidavit
I think
is
I think that
incorrect
given
the
I
circumstances that I could take judicial notice of the situation that there is
Some
disaimination against Muslims and Arabs
During submissions on the
291
motion to strike the jury notice the tial judge referred to his
reading of the political siMation in the tTaited States that
largely
because of the
page 32
worse
the
vote
of people who couldnt
distinguish between Muslims
that the situation since the decisions of Festeryga J and
but had been compounded
general population bas
teuorise
the election in 2004 had been
a
page 33
great deal of
dua the issue
was
as
Jennings J
Nlr
difficWty distingLlisWag
and terrorists
had not gotten
Levy had framed it
between
a
that
Muslim and
thLat the popuMon of Canada had been misled about the Arar
page 33
won
case
a
page
34
VAiile he did
paragraph 6
31
We
above
are
not return to
we
such observations in rendering the decision referred to in
infer that such considerations informed his decision
of the view that the tdal judge cued in his reliance
his decision that
there isa strbni risk
part of the jury
Assuming for the raoment
for
a
on
judicial
notice to
support
reasonable apprehension that there coiild be bias
concluding that the second criterion has
that the fmt critenon has been met there is
been considered or
met
on
no
the
basis
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13
fn her
321
MeLachlin
reasons
juror partiality is
At para 32 the
at issue
in P
C JC
v
identified a two fold
Find supra
Supreme Court held as
test
when
follows
I
As
a
practical
mquires satisfying
cotmnunity and
despite
the
aial
establishing a
matter
the court
2
that
safeguards
chaUenge
for
jurors
render
an
that
may be
a
for
re
incapable
spectively
juror partiality generally
Aridespread
of
bias exists in the
setting aside this bias
These two corhponents of
impartiaI decision
test reflect
cause
potential
1
on two matters
soine
to
realistic
the attitudinal and behavioural
components of partiality reference omitted
The
331
dealing
Sup Teme
with the test for
procedures have
cleanse
34
i
e
Court aIso dealt tvith thd concepts of
been in
paftiaUty
place
and
bias
wide
At para 40 the Chief Justice concluded
over
spread
when
given that
trial
centuries to counter biases the trial process is sufficient to
jurors views and biases
As the Chief Jusfice held theie
the existence of
a
are two
lack of impartiality
components
to
bias the attitudinal component
and the behavioural link
i e that the
juror is
not
capable of setdng aside the bias
35
Even if the tiial judge had
notice
of inherent
Arguably
minorities
Neverdieless
September
a
preiiidices
a
on
basis for
the part of
so
it is not
the trial pTocess has
11 200 1 and the
prevailed
subsequent
enough
potential jurors
minorities in Canada have suffered
Needless
in
a
to
simply
case
involving
from intolerance
to say
given
the
judicial
take
and
tugic
certain
prejudice
events of
terrorist attwks linked to radical Muslims there thay be
level of caution in Canada which may in
prejudice
doing
some
people
have
expanded
To conclude however that poiential civil jurors would be
to
outright
bias and
impossibly tainted vvithout
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14
any
supporting
aside their bias
evidence and that the lack of lmpWiality would
notwithstandingprocedural safeguards
cause
them
be unablc
to
to set
improperly exercise judicial
would be to
discretion
36
We conclude
the
as
appeHant has argued by taking judicial notice
judge iiiade a palpable and overridiiag error It is
being
as
notorious
so
to be
as
remitted to
a
was
not
371
jury
381
civil
for
acknowledge
cases
We
We also
that
Of the
appeal
there is
no
was
lack of
the
irupartiality
appeal
and the
that he did
Furthirmoie
inability
to set
the
those
be allowed and the matter
must
we tum now
to the issue of challenges for cause in civil
natijre
we
is
not
prohibited
suggest the
tiine has
in
come
Legislature to give colisideiation to this issue given the
in Abou Marie suprg and iii 4mana
cause
cause were not
Imports supra the judges each
were not available in civil actions aiid in Al Haddad supra
reference to the prescreening of jurors
for
Some niight
cause
of Canadian society We do not
chaRenges for
chaUenges
madeon
make these observations
recogmized procedure in Ontario for challenges for
apknowledge it
recognize that
observed that
tboere
the facts
s
before4he trial judge and before us
raPidly changing
I
Jury Cas
C
the Civfl Rules Committee and the
1391
recogrdze
While it is not neoessary to address this issue in view of the submissions
cases
We
to
he did the trial
different trial judge
14aving disposed
this point
a
Accordingly
established
Challenges for Cause in
1
possible
beyond the scope of reasonable debate
behavioural link between the exiswnee of
biases aside
not
as
available
In the
case
before
us
the trial
judge also held
19
We
40
recognize
as
well
possibility of partiality
test
whether there should be
a
should be
permitted
nature of the offcnce
that Ontario
of the
far diff
rourts
appropriate
challenge for
as a i esult
are
the
as
nt
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have consistently applied
standard in crimiual
cause
The issues
nationaUty
as
cases
to whether
of the accused and
from whether there should be
a
or
jury
in
a
the
at
a
the
16
remnable
determination of
cUlenge
for
complainant
cause
or
the
all
1
What
are
potential
as
411
the
mf
the ramifications of a
the
cliallenge
appeEaut suggests of never having civil jury
mben of minority groups who may feel
aggrieved This in
resWt imd does not accord with Canadas
First of all there is
for cause in civil matters
reputation
as
an
our
cases
in Ontaiio
vicw is
a
wholly
involving
untenable
open and tolerant multi culnu 9
society
42
The other ramification is that there would be considerable delay and expense involved in
many civil
the trW
cases
judge
in
on
large urbm
the issue of
seriously overloaded
centres
Evidence woWd need to be
potential prejudioe
and to this extent
chaUenges
for
We
brought
to the attention of
already
have
a
in civil
casw
would not do
cause
civ
system that is
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
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17
16
allowcd the
any issues
45
appeal
we assume
proceed as expeditiously
that the raatter WM
as
possible
and that
arising from delay wfll be addressed by the trial judgc
Unless counsel
are
able to agree as
of this
to cosis
appeal
subriiissio
provided within 15 days of the relewe of these reasons
Addendum
461
by Kiteley J
1 agree with the
However I
depait
majority
from niy
challenges for cause in
as
disposidon
to the
colleagues only
on
of the
appeal
for the
their remarks in obiter
on
given
reasons
the
subject
of
civil actions
r
47J
R S O 1990
c
Eight other proviaces
or
The Ontado JuriesAct
cliaUenges
for
in
of Albm tas Jury Act R SA 2000
12 2
R S PX I
challenges
cause
1988
for
c
J 5 1
cause
are
and
s
J30 such
permitted
chaUenges are
territories permit
J 3
c
s
chaUenges
challenges
for
for
c
a
number of
242 and
authorized without
s
specified grounds
iciency
of
a
cause
silcnton
by
statute
S
in
s
1998
c
J 4 2
20 of British
33 of Manitobas The JuryAcr Ksm 1987
idenfiting
any limits
Newfouiadland aud LabradorsJwy Act SNL 1991 Chapter 16
may try and determinc the suf
It is
20 oP Prince Edward Islands Jury Act
28 of Saskatchewans 7he J ry Act 1998
Columbias JuryAct R S B C 1996
c
J 3 enables peremptory
chaUenge
for
on
the
chaUenge
s
31 of
provides that the presidingjudge
eause
s
20 of the Northwest
19
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17
Tcrritories
Jwy Act
1998
botbpxovide
The criminal
48
for
16
c
proposition
thexight to
If the
a
trial
potential juror
suprg
on
s
16 3
that any party may challenge for
cases
on
this
topic
a
are
jury
Legislature saw fit to
As is evident J
Borkovich J in the
Released
J 2 and
of Nova Scotias Juries Act S N S
cause
in the contekt of whether there will be
In civil
facihtate
cases
in Ontario it is
challenge for cause
an
all
a
challenge
or
nofliing
in civil matters iia Ontario
be undermiried by the
inabdity to challenge
a
the grounds that the juroT would be unable to set those biases aside and judge
fairly
a
c
byjury that now exists would not
by Jennings
that this is
1988
not whether there wfll be
cause
the niatter
R SN W T
J in Abou Marie supra
case
before
us
matter which needs a
June
om comments on
2008
screening by
by Festeryga J
where the tW
legislative
pre
Browne J in Al Haddad
in Amana
Irnports supra and by
judge was struggling with this issue
response
it is clear
19
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DC 07421
DIVISIONAL COURT FILE NO
DATE
20080z
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A C J STAYSHYN and
IUTELEY JJ
BETWEEN
HASINA KAYHAN
et
al
Plaintiffs
Respondents
and
HILDEGARD GREVE
Defendant Appellant
REASONS FOR JUDGMENT
Released
June
TOTAL P
19