Once all the evidence needed for the trial is ready, there remains a number of preliminary matters for consideration immediately before (or at the start of) trial. Generally, these can be listed as:
- the consequences of a failure to attend at trial;
- a request for an adjournment;
- a motion to amend the pleadings, to strike the jury notice, or for leave to call more than three witnesses;
- jury selection; and
- a request to exclude witnesses.
Further things requiring attention during the conduct of the trial are :
- the order of presentation;
- marking documents as exhibits; and
- adducing evidence at trial.
Then, there are the applicable statutory and common law rules, evidence by affidavit, expert witnesses, compelling attendance at trial, calling an adverse party as a witness, evidence that is admissible only with leave, and the failure to prove a fact or document.
The details are not yet exhausted because the objectives and the presentation of the case, brings into focus:
- The opening statements;
- Re-examination (if any);
- Objections; and
- Closing arguments.
Failure to attend at trial is a grave matter. It authorizes the judge to strike an action off the trial list if all parties fail to attend when the action is called for trial. The judge has also the option to proceed with the trial in the absence of one of the parties. If the defendant is absent, it is still not a cakewalk for the plaintiff, who has got to prove sufficient facts for entitlement to the judgment he/she seeks. A brief proof is required, except with respect to damages, which requires the same type of proof that would be adduced if the defendant had appeared. If the plaintiff has failed to attend, the action may be dismissed and the defendant allowed to prove any counterclaim. Any judgment obtained against a party who has failed to attend at the trial may be set aside or varied by a judge on such terms as deemed just.
Adjournment of trial is under the discretion of the judge, but if a party puts up such a request, all other parties and the court must be alerted about the request as soon as possible. It is prudent to be prepared to proceed should the adjournment not be granted, because trial judges are usually reluctant to grant adjournments, if one party is prepared and anxious to proceed. Incidentally, adjournments are costly. The opposing party can ask for the costs of the day, ranging from as high as $5,000 to $10,000 or greater. Normally, the court accepts the facts on which an adjournment is sought. If opposition thereto is anticipated, an affidavit stating the reasons for the adjournment should be at hand to be served with a formal Notice of Motion before the action is called for trial.
Application of Limits
The Ontario Evidence Act stipulates that no more than three witnesses will give opinion evidence for any one party without leave (permission) of the trial judge, while the Canada Evidence Act says that no more than five experts may be called without leave.
It is, however, not clear if these limits apply to each issue of fact, or to a party’s entire case. In a recent case, the Ontario Court (General Division) held that each side in a trial is restricted to a total of three expert witnesses on all aspects of the case, unless the court grants leave to call more. As leave is generally given, the request should be made at the opening of trial without waiting for the party’s first three experts to finish testifying.
Motion to strike out jury notice
If a statute requires a trial without a jury or the jury notice was not delivered in accordance with the rules, a motion may be made to strike out a jury notice well in advance of the trial. If this is not done before the trial, the motion may be renewed at the start of the trial. A trial judge, of course, has the discretion to try the action without a jury “in a proper case”.
Nonetheless, such a motion can also be made for the first time at the opening of trial. Likewise, if it is apparent during the hearing that a trial by jury is not quite appropriate, the motion may be brought at that time. It is likely that the trial judge may allow the case to proceed before the jury until the difficulties alleged by counsel as militating against a jury trial come to pass. “Complexity” is generally the reason due to which juries are removed.
Under the Juries Act, about 100 prospective jurors are selected to form a panel before the case is called to trial. They have to be residents of Ontario, Canadian citizens, and at least 18 years of age in the year before the year for which the jury is selected. List of ineligible persons includes:
- federal and provincial cabinet ministers and legislators;
- barristers, solicitors, and students-at-law;
- health practitioners and veterinary surgeons actively engaged in practice;
- coroners; and
- all law enforcement officers, including sheriffs, prison wardens, firefighters, and officers of the court of justice.
Persons with physical or mental disability and ex-convicts are ineligible, but the spouses and common-law partners of those who are ineligible to serve on juries are eligible to serve.
Counsels of both sides are then allowed to challenge the juries to prove their suitability; a privilege not often utilized.
Generally, the plaintiff makes an opening address and then adduces evidence. The defendant, with the permission of the trial judge, makes an opening address immediately after the plaintiff’s opening address but before the plaintiff adduces any evidence.