In what circumstances will a judge grant a threshold motion?

In Dinham v. Brejkaln, [2005] O.J. No. 5409 (S.C.J.), Cumming J. took a different tack and voiced concern at para. 38 about how a decision by a judge on a threshold motion could undercut the work performed by the jury: As an aside, I add that I question the utility of a regime having a judge mandated by statute to determine the so-called “threshold motion” when a six person jury has spent several days of their time as conscientious citizens hearing evidence, deliberating and arriving at a verdict late into the evening which in reality is of no effect because, unknown to the jury, a judge then makes a ruling contemporaneously which has the consequence that the entire exercise of the jurors is a waste of effort. … …

The danger of threshold motions after the jury has rendered its verdict is, as has been indicated in Riley J.'s decision in Parks v. Peter, the possibility of inconsistent findings of fact by the trial judge and by the jury. If a jury has been selected as the trier of fact and if we are to preserve the jury system in civil cases in this Province, in my respectful view judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury's verdict is met.