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and is not demurrable, using the old expression, i. e., it cannot be struck out, the defendant may not be able to answer, may not be in a position to understand precisely what the plaintiff's claim is, and he may demand particulars. If particulars are not furnished he may have particulars ordered by the Master or Judge. Then he serves and files a statement of defense. The statement of defense must set out also the facts on which the defendant relies for a defense. I am sorry to say perhaps I ought not to say that I am sorry, because I am one of those who have, collectively, a right to change it if thought fit — I am sorry to say that in our practice where an allegation in the statement of claim is not specifically admitted it is taken to be denied. I think very much better is the English practice in which every allegation in the statement of claim is taken as true unless it be specifically denied.
Again, suppose the statement of defense sets up no real defense to the action, a motion may be made by the plaintiff to strike out the defense and have judgment in precisely the same way as the defendant had a right to move to strike out the plaintiff's statement of claim. As soon as the statement of defense is in, either party has a right to serve what is called an "Order to Produce," directing the opposite party to produce on oath, all documents, copies of documents, etc., etc., which he has or has had in his possession bearing on the issue to be tried. Then either party may be examined under oath by the other generally upon the whole case. If a corporation be one of the parties to the action, an officer of the corporation is selected by the opponent, who may be examined.
Now, there is a great deal of difference of opinion as to the value of this "examination for discovery" as we call it. In practically every case in Ontario there is an exam
ination for discovery. That increases the cost of the action undoubtedly. I heard the other day, very much to my astonishment, at a meeting of the Ontario Bar Association which I attended before I had the pleasure of meeting you here, one very eminent member of the Bar say that an examination for discovery was absolutely useless except to show the opposite side what one's case was. In my own experience, I did not find this to be the case. My experience (and I know the experience of a great many others practicing at the Bar is the same) was that the "examination for discovery" is an exceedingly valuable proceeding. When you examine the other side for discovery you find out what his case is. It is true you must disclose, to a certain extent, your own case; but that is not always of much importance. I have found that the examination for discovery leads to the settlement of at least one-third and perhaps more of the cases which would otherwise be tried, and I have found it exceedingly valuable. But opinions differ in that regard.
In a great many instances the plaintiff also requires to make application to the Master in order to have particulars delivered. Particulars may be required to be delivered of the statement of the defense, that is what particular matters the defendant relies on for his defense. When delivering a statement of defense, the defendant may counterclaim for any claim he has against the plaintiff on any cause of action. In an action brought on a promissory note a counterclaim may be brought of a claim for libelwith this provision, however, that if the Court sees that the issues should not be tried together the Court may strike out the counterclaim, or order it to be tried at a different time. from the general action.
Then we come down to the trial. We have the jury system the same as you, but I do not think we are quite
I shall not say crazy, I know better than to say that to lawyers but we are not so wedded (that is a good word) to the jury system as you are. There are certain cases such as malicious prosecution, libel, slander, actions of that character which are tried by a jury unless both parties agree that they be tried by the Judge. In most instances they are tried by the jury-I mean, false imprisonment and that sort of thing. Equitable issues which before the Judicature Act of 1881 were tried in the Court of Chancery, are tried by the Judge alone, unless the Judge directs them to be tried by the jury. It may sometimes happen I dare say it happens in the experience of every lawyer that an equitable issue, an issue that is really equitable, comes up and after all it turns out to be a pure question of fact, it turns out that the case will depend upon the determination of a question of fact, and that perhaps upon the credibility of two witnesses; and a Judge sometimes likes to cast the responsibility upon a jury and let a jury find out which one of those two men is lying, if not both of them. Accordingly the Judge has the power to direct even an equitable issue to be tried by a jury.
Outside of these I have already spoken of every issue in our High Court of Justice, or in our County Courts, may be tried by a Judge if he sees fit. If either party to an action desires a case to be tried by a jury rather than by a Judge, he files what is called a jury notice. If no jury notice is filed the case goes on the non-jury list and is tried without a jury unless a Judge sees fit to transfer it to the jury list. If a jury notice be served, the case goes on the jury list, and when it comes down for trial the Judge may say, "I will try this case myself," and there is no appeal from that. The Judge is absolute master of the situation. Sometimes a plaintiff or defendant asks that the
jury notice be dispensed with and the case tried without a jury. Sometimes both of them agree it should not be tried with a jury, sometimes they have agreed it ought to be tried by a jury; but whatever they may say, the Judges have it in their own power to try a case without a jury; in a very great majority of cases the cases are tried without a jury except those particular cases I have mentioned, and added to that, accident cases, which are becoming more and more frequent.
The old French system, the Canadian system before 1759, was to try all issues without a jury and by Judges alone. When Canada was conquered in 1759 by the British, and particularly in 1763 when the Royal Proclamation was issued, the English law was introduced and juries were introduced also. The French Canadians could not understand how the Englishmen would sooner have their property rights determined by the agency of tailors and shoemakers than by Judges. That same idea is still prevalent in Lower Canada, Quebec; and it is becoming more and more prevalent in the Province of Ontario, and we are trying fewer and fewer cases by juries every day. If a case is tried by a jury ten are required to agree in order to find a verdict. If a jury should not agree, the Judge may discharge them and either put the case over or call another jury. I follow either practice, according as it seems to me more convenient. Sometimes when a case has taken a long time and other litigants have been waiting with their witnesses, it does not seem fair to give these people whose jury have disagreed another chance at the expense of those who have been waiting. Sometimes it seems to be absurd to postpone to a future assize a case which ought to be tried forthwith, and we call a new jury; or what is more likely to be the case, we discharge the jury and try it then and there and thus dispose of it.
If the jury finds a verdict, the Judge has no power to award a new trial. There must be an appeal.
An appeal may be taken to the Divisional Court of the High Court of Justice. The Divisional Court consists of three Judges. We have four Divisional Courts, and any member of any Divisional Court may sit in any Divisional Court. Court. When counsel, as they sometimes do, skirmish for Judges I suppose that is entirely unknown in your practice,— but it is said that in Ontario they do, and they postpone their cases not uncommonly, it is said, on account of the absence of necessary and material Judges. (Laughter.) Now, I am glad that excites your amusement, because it proves to me you cannot have anything of that kind in your practice - when counsel have skirmished for Judges, very often they find that very Judge whom they are anxious to avoid sitting up in the Divisional Court smiling at them. The grounds of appeal to the Divisional Court are very much as in your appeals here, verdict against evidence, against the weight of evidence, surprise, absence of witnesses, exclusion of evidence and admission of evidence, and all that sort of thing. We do not have very much bother about admission or rejection of evidence in our Courts; unless we can see that the exclusion of evidence or the admission of evidence has led to some injustice, then we pass it by. Matters of law as a rule are the determining matters in the Appellate Court; although there are occasionally cases in which appeals succeed upon the ground of the non-admission of evidence, or the admission of evidence which ought not to have been admitted. If a case is tried before a Judge, and he has improperly rejected evidence and I may say that this is the rarest of all contingencies, because as a rule we admit the evidence subject to objection, and