Not so fast: Supreme Court of Yukon adjourns jury trial application

In Lavoie v Ewert, 2026 YKSC 8, the Supreme Court of Yukon considered an application by the plaintiffs for an order directing that their multi-party civil action proceed by judge and jury.

Read the decision

While the Court acknowledged the statutory availability of civil jury trials, it ultimately concluded that the application was premature and should be adjourned until further steps in the litigation were completed.

The decision highlights the importance of timing when seeking to fix the mode of trial in complex proceedings and underscores the Court’s preference for deciding jury trial applications on a complete procedural and evidentiary record.

Background

The plaintiffs purchased a family home in Yukon that they allege contained latent defects that were not disclosed prior to closing, rendering the property unfit for residential purposes. They have advanced a claim against a number of defendants, including the sellers, the plaintiffs’ realtor, the home builder, the home inspector, and the City.

In parallel, the plaintiffs commenced a separate insurance coverage action against their home insurer and title insurer following the denial of claims relating to the alleged defects. 

The Application

Pursuant to section 2 of the Yukon Jury Act, RSY 2002, c 129, the plaintiffs applied for an order directing that the action be tried by judge and jury. They argued that the issue should be determined promptly in order to provide certainty and avoid future delay. 

The Sellers and the City of Whitehorse opposed the application, taking the position that it was premature. They emphasized that key procedural steps remained outstanding, including expert disclosure, further discovery, and the resolution of a pending consolidation application involving the insurance action.

Legal framework

The Court noted that “a party seeking a jury trial must first establish that the basic criteria in ss. 2(1) and s. 3 of the Jury Act are met: that is, the action is in one of the listed subject areas, with a claim in the requisite amount, the application is brought 90 days before trial, and the security deposit has been confirmed. If these conditions are satisfied, the applicant has a prima facie right to a jury trial. […] Once a prima facie right to a jury trial has been established, the court has the discretion to deny the application. The onus then shifts to the party opposing the jury application to show the matter cannot be conveniently tried by a jury for one of the reasons set out in s. 2(2).” (para 12)

Under section 2(2) of the Jury Act, the Court may decline to order a jury trial where the trial is likely to involve prolonged examination of documents or scientific or technical investigations that cannot conveniently be made by a jury. The Court retains discretion to determine whether, in the circumstances of a given case, the statutory test is met.

That discretion must be exercised on the basis of a sufficiently developed record, enabling the Court to meaningfully assess the anticipated scope and complexity of the evidence.

The Court’s analysis

The Court concluded that the plaintiffs’ application should be adjourned and deferred to the case management judge following the next Case Management Conference, because it was premature.

A central concern was the state of the evidentiary record. The defendants’ expert reports had not yet been disclosed, making it difficult to assess whether the trial would involve the type of prolonged or technical investigations contemplated by section 2(2) of the Jury Act. Without this information, the Court lacked an adequate foundation to determine the suitability of a jury trial.

The Court also noted that further documentary and oral discovery remained outstanding. Completing these steps would provide a more complete understanding of the issues likely to arise at trial and their potential complexity.

In addition, the Court placed significant weight on the unresolved question of whether the primary action should be consolidated with the related insurance coverage proceeding. Consolidation, if ordered, could materially affect both the scope of the trial and the appropriateness of a jury. 

Finally, the Court found that adjourning the application would cause minimal prejudice to the plaintiffs. No trial dates had been set, and the next Case Management Conference was scheduled within a relatively short timeframe. Deferring the decision would promote certainty and reduce the likelihood of further applications or reconsideration as the record evolved.

Key takeaways

The decision in Lavoie v Ewert highlights the procedural sensitivity surrounding civil jury trial applications in complex litigation. While jury trials remain available under Yukon law, courts will be hesitant to determine their appropriateness in the absence of a complete and reliable litigation record.

Key points emerging from the decision include:

• Jury trial applications may be adjourned where expert evidence and discovery are incomplete.
• Outstanding consolidation issues can significantly influence the jury trial analysis.
• Courts will be reluctant to rule on the appropriateness of a jury trial without a developed evidentiary record.
• Minimal prejudice to the moving party may support deferring the decision until the case is procedurally mature.

For litigants and insurers, the ruling underscores the importance of timing when seeking or opposing a jury trial and the need to ensure that the Court has a sufficient evidentiary foundation before exercising its discretion.

Should you have any questions or need further information about this decision, please contact Don Dear, K.C., or Emily Jakus in our Calgary office.