Striking jury notices during the COVID-19 Pandemic

When is it more likely to happen?

Alan Drimer,
Partner

September 2020

In just a few short months, the COVID-19 pandemic has prompted seismic changes in all of society; including having a profound effect on the health and behaviour of everyone.

We all have had to adjust every facet of our life in order to maintain a level of normalcy.

The Canadian justice system is no different.

Access to well-functioning justice and court systems are fundamental to a just and fair society. However, the COVID-19 pandemic has created challenges that have impacted the Canadian justice system.

The law profession has responded by adjusting their practices to both advance their clients' cases and maintain social distancing. Lawyers now routinely conduct examinations for discovery through web-based apps; a practice that was only used in the most exceptional circumstances pre-COVID-19.

Unfortunately, there are parts of the civil litigation process that cannot be done without human interaction, most notably: a jury trial.

Recently, the Ontario Superior Court of Justice has struck civil juries in two personal injury actions.

Belton v Spence, 2020 ONSC 5327

The plaintiff's claim arose from a 2010 incident in which he was kicked by a horse owned by the defendant. Counsel for the plaintiff (moving party) argued that a jury trial could delay the action by up to 18 months – if not longer. Thus, it was argued that justice would be better served by striking out the jury notice.

The defendant's position was the court should not assume that a judge-alone trial could be reached sooner than a trial heard before a judge and jury. Second, the case law recognizes the need to follow a “wait and see” approach and leave it to the trial judge to decide whether to strike out the jury as the trial judge is in the best position to decide whether justice between the parties requires the striking of the jury notice. Third, the defendant submitted that Vacchiano v Chen, 2020 BCSC 1035 (British Columbia Supreme Court decision to strike jury based on delay and fading memories of key liability witnesses) was distinguishable from the case at bar. Finally, it would be unfair for the plaintiff, who the defendant alleged was responsible for five years of delay, to now point to the possible delay caused by the pandemic as a reason to remove the defendant's substantive right to trial by jury.

After an exhaustive review of the relevant case law regarding a party's substantive right to a jury, Sheard J. struck the jury notice, holding that justice would be better served by striking it.

...a motion to strike a jury is generally best left in the hands of the trial judge.

Sheard J. acknowledged the defendant's position that a motion to strike a jury is generally best left in the hands of the trial judge. However, the difficulty with that position is the trial judge will not be appointed until the day before the commencement of the trial. Therefore, if a “wait and see” approach is taken, the delay in the scheduling of the trial, that the plaintiff seeks to avoid, will have already occurred.

The Court also attached no weight to the argument that the plaintiff had delayed the trial by waiting seven years to set the action down for trial, stating:

[40] I do not accept the defendant's submissions on that issue. I do not have evidence from which I could reasonably conclude that because the plaintiff did not set down his action until 2017, he was engaging in delay. There may be many reasons why plaintiffs do not set their actions down for trial. Without evidence, no assumptions can be made as to those reasons.

Further, the Court did not accept the defendant's submission that the pandemic and associated delays will affect all civil litigation proceedings equally, both jury and non-jury:

[43] ...The parties were told by RSJ Arrell in June 2020 that if the action proceeded by judge alone it might be scheduled in late 2020 or early 2021, but if it was to be heard by jury, the trial would not likely be scheduled for at least a year and possibly 18 months.

Finally, the Court acknowledged that the witness statements taken, the recent examination for discovery and the expert reports will minimize the risk of fading memories, however, Sheard J. concluded that justice to the parties would be better served if this matter is brought to trial sooner, rather than later.

This action will now proceed to trial by judge alone in the coming months.

Louis v Poitras, 2020 ONSC 5301

The plaintiffs' claims arose from a 2013 motor vehicle accident. The plaintiffs commenced actions against both the at-fault driver and their accident benefits carrier. Both actions were set to proceed to trial on April 20, 2020. Due to the pandemic, the trial was adjourned.

The plaintiffs submitted that they have already waited seven years for the trial of these actions and should not bear the weight of these uncertainties and emphasized that any further delay could be substantial. Second, the Insurance Act limits past income losses to 70 per cent, and the longer the trial is delayed, the percentage of the past income loss increases. Third, the defendants in the tort action have not shown they will suffer any prejudice if the jury notice is struck. Finally, with respect to the accident benefits action, the plaintiffs submitted that the defendant has a good faith obligation towards them.

The tort defendants submitted that the motion was premature and that the plaintiffs have not established that a ten-week trial before a judge alone could take place and/or be completed any sooner than could a ten-week trial before a judge and jury. Second, that the plaintiff has not proffered any evidence that she would suffer any income loss because she continues to receive LTD and CPP benefits. Third, the court should not be making policy decisions about the right to a jury trial on a case-by-case basis.

The accident benefits carrier submitted that the motion was premature, and the Court should adopt a “wait and see” approach.

All defendants made a joint submission that this motion was premature and the plaintiffs have not met the onus to deny the defendants their substantive right to a jury trial.

After an exhaustive review of the relevant caselaw regarding a party's substantive right to a jury, Beaudoin J. struck the jury notice, holding that justice would be better served by striking out the jury notice.

... the real and substantial prejudice arises simply by reason of delay.

Beaudoin J. held that nothing turns on the plaintiff's claim for damages for past and future loss of income, holding that the real and substantial prejudice arises simply by reason of delay:

[46] ...Regardless, I find delay to be determinative in the circumstances of this case, arising as it does in the context of a global pandemic.

Further, Beaudoin J. endorsed the reasoning provided by Sheard J. in Belton v Spencer, 2020 ONSC 5327 (summarized above):

[56] Justice Sheard identified several very practical concerns in empaneling and continuing with a jury during the pandemic which would be exacerbated in a long trial. She reviewed the relevant caselaw. Justice Sheard observed that COVID-19 has created additional challenges to ensuring access to justice. She concluded that the defendant' right to a jury trial was outweighed by the need to provide the plaintiff with a more timely access to justice.

Beaudoin J. concluded his judgement, stating that no party has an unfettered right to a civil jury, and rejecting the defendants' submission that the court take a “wait and see” approach:

[62] None of the parties to these actions has an unfettered right to a jury trial. These parties should not be required to wait for a policy decision from the legislature. I decline to take a “wait and see” approach nor am I prepared to revisit the issue. I am satisfied that these are appropriate cases in which to exercise the discretion currently conferred upon me to strike a jury notice. I find that justice to the parties will be better served by these actions proceeding to trial, in a timely manner, before a judge alone.

This action will now proceed to trial by judge alone in the coming months.

Does this mean every jury notice will be struck?

No.

The right to a jury trial in a civil action has been recognized as fundamental, and will only be displaced where the interests of justice are better served.¹

It is important to note that both of the above-cited matters were ready and able to proceed to trial. It is unlikely based on the reasoning in the above decisions that a party would be successful in striking a jury unless proceeding with a jury would necessarily result in an adjournment of an already scheduled trial.

In short, if the action isn't ready for trial; it is highly unlikely that a judge would strike a jury notice.

What regions will be having civil jury trials?

... as of the date of this article, no civil jury trials have commenced.

Brampton, Toronto, and Hamilton have announced their intention to begin civil jury trials shortly. However, as of the date of this article, no civil jury trials have commenced.

Why are jury trials happening in criminal cases?

In criminal cases where the accused faces a prison sentence of five years or more, the right to trial by jury is enshrined in section 11(f) of the Charter of Rights and Freedoms and is, therefore, a constitutional one, which cannot be limited. In a civil case, the right to a jury trial is not a constitutional one, and either is or can be, limited in many circumstances; COVID-19 being one of these circumstances.

What's next?

Both of the above decisions are still within the appeal period. Because this is an interlocutory motion, we could see appeals to the Divisional Court, Ontario Court of Appeal, and potentially the Supreme Court of Canada.

However, if matters come close to being ready for trial, lawyers and their clients need to be ready to proceed to trial by judge alone.

McCague Borlack LLP is keeping a close eye on any developments and will provide updates as this novel legal issue continues to unfold.

Girao v Cunningham, 2020 ONCA 260

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