Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs applied under s. 2 of the Yukon Jury Act for a civil jury trial in a latent defects property dispute involving multiple defendants.

• Defendant vendors and the City of Whitehorse opposed the jury application, while the remaining defendants took no position.

• Whether the trial would involve prolonged examination of documents or scientific investigation unsuitable for a jury under s. 2(2) of the Jury Act was the central statutory test at issue.

• Outstanding expert reports from the defendants and incomplete oral discovery prevented the court from making a fully informed assessment.

• A parallel insurance coverage action and a pending consolidation application complicated the jury trial determination, raising the risk of contradictory factual findings.

• The court found the application premature and adjourned the decision to the case management judge following the next CMC scheduled for April 15, 2026.

The purchase and the alleged latent defects

Émilie Lavoie and Scott Westberg purchased a family home, which they claim had latent defects that were not disclosed to them and which have made the property and home unfit for residential purposes. They commenced an action in both tort and contract on February 24, 2022, naming a broad group of defendants: the individual vendors Barbara Anne Ewert and Gerry Darrel Ewert, 535885 Yukon Inc. dba RE/MAX Action Realty and Wendy Close, Northern Guardian Inspection Ltd. and Darryl Fraser, the City of Whitehorse, and Rodney Scott Breitenbach. As described by the court, the defendants encompass the individual vendors, the plaintiffs' realtor, the home builder, the home inspector, and the City of Whitehorse.

The application for a jury trial

The plaintiffs brought an application under s. 2 of the Jury Act, RSY 2002, c 129, seeking an order that the trial of the action be heard before a civil jury. Under s. 2(1) of the Act, a party to an action founded on a tort or contract in which the amount claimed exceeds $1,000 may apply for a jury trial not less than 90 days before the time set for trial. However, under s. 2(2), if it is the opinion of a judge that the trial will involve any prolonged examination of documents or accounts or any scientific investigation that cannot conveniently be made by a jury, the judge may direct that the action be tried without a jury.

The positions of the parties

The defendant vendors and the City of Whitehorse opposed the jury application. The remaining defendants — RE/MAX Action Realty, Wendy Close, Northern Guardian Inspection Ltd., Darryl Fraser, and Rodney Scott Breitenbach — took no position on the matter. Plaintiffs' counsel provided a significant amount of evidence regarding documentary discovery completed to date and gave assurance that he did not intend at trial to repeat the oral discovery evidence, except to the extent of some read-ins. He argued that delaying the decision was prejudicial to his clients because there had already been, in his view, significant delays caused by the defendants. He further noted that the defendants could have provided their expert reports much earlier and could have brought their application for consolidation or hearing together earlier.

The related insurance coverage action

Adding complexity to the proceedings, the plaintiffs had started a separate insurance coverage action against their home insurer/brokerage as well as against their title insurer. That action arose from the insurers' denial of the plaintiffs' claim for loss arising from the alleged defects in their home — the same defects described in and forming the basis of their claim in the main action. Documentary discovery had occurred in the insurance action, but oral discovery had not. The defendant vendors and the City of Whitehorse stated their intention to bring an application for consolidation or hearing together of the two actions, while counsel for the insurer indicated by letter their opposition to any such application. Plaintiffs' counsel suggested that consolidation was not necessary, proposing that the main action could proceed and the findings made by a jury could become an agreed statement of facts for use in the subsequent insurance action. The court found this suggestion not workable for several reasons: juries render verdicts or provide answers to questions without reasons and nowhere do they set out their findings of fact the way a judge does, making it impossible to develop an agreed statement of facts from a jury trial. Further, even if this were possible through extrapolation from a jury verdict or through negotiation among counsel, the defendants in the insurance action would have to agree to this approach, and they were not before the court at that time.

The burden of proof and the statutory framework

Chief Justice S.M. Duncan addressed the question of who bears the onus in a jury application under the Yukon Jury Act, noting the different wording from the jury acts in other jurisdictions such as British Columbia, Ontario, and Nova Scotia, as well as the different processes in those jurisdictions. After careful review of the Yukon Jury Act and the similar Alberta Jury Act, RSA 2000, c J-3, the court concluded that a party seeking a jury trial must apply and establish that the basic criteria in s. 2(1) and s. 3 are met: that is, the action is in one of the listed subject areas, the claim is 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, an interpretation supported by the heading of that section, "Right to jury in civil matters." However, the matter does not end there. Once a prima facie right has been established, the court has the discretion to deny the application, and the onus 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). The court on its own motion may also dismiss the jury at any time.

The court's reasoning on prematurity

The court identified three principal reasons why the application was premature. First, the evidence required by the court to determine whether the test in s. 2(2) is met should include information from and about the expert reports. In a faulty workmanship property action in tort and contract such as this, there will be technical expert evidence that should be part of the assessment by the judge. While the plaintiffs had properly included their four disclosed expert reports for review, the defendants' expert reports had not yet been produced — with one report expected on February 23, 2026, and a second around the same time — and were therefore not available for review. Second, the completion of oral discovery and disclosure of any further documentation arising from it was preferable before deciding the jury issue, as the full potential record would allow the judge to receive more complete and definitive arguments from counsel. Third, and perhaps most significantly, the matter of consolidation or trying together of the main action with the insurance action had to be determined before a decision was made about a jury, since in both actions the underlying issue is the condition of the house, requiring factual findings, and proceeding separately could result in contradictory findings of fact on the common underlying issue.

The ruling and outcome

Chief Justice Duncan found the plaintiffs' concern about prejudice caused by further delay of costs to be not well-founded, frustration aside. Expert reports remained to be delivered, further documentary and oral discovery had yet to occur, and trial dates had not yet been set. The next CMC had been scheduled in approximately two months' time. The court noted that adjourning the decision on the application would not delay further steps in the action, would not delay the CMC, and may not delay the setting of trial dates. Certainty, the court observed, was in fact more assured by waiting, because if a decision on a jury were made at that point, it may be subject to a further application or determination by a judge based on new information that remained to be provided. The application was adjourned to be decided by the case management judge, who would also be the trial judge, after the next CMC scheduled for April 15, 2026. No monetary amount was awarded or ordered, as this was a procedural decision that did not determine the merits of the underlying claims.