Striking a Jury Notice – Not so fast!

by Eric W.D. Boate

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII),¹ the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

Factors

Justice Christie noted that courts have considered a number of factors when determining whether to strike a jury notice, namely:

The length of the delay from the event that gave rise to the cause of action to trial;
The parties' readiness for trial;
The length of the trial;
Previous trial adjournments;
The local impact of the pandemic, to assess the likely timing for the resumption of jury trials;
Costs to update expert reports; and
Prejudice to the parties caused by delay in adjudication;

Plaintiff's Conduct

...the court dismissed a Plaintiff's motion to strike a jury notice.

However, in reaching her decision in Corkett, Justice Christie considered the circumstances of the case and the current state of the COVID-19 pandemic, and declined to strike the jury notice for the following reasons:

Litigation Commencement Date

The event giving rise to the litigation occurred on December 2, 2017, however, the litigation did not commence until January 16, 2019.

Trial Record/Pre-Trial Conference

The trial record was prepared and filed on July 9, 2019, yet there was no pre-trial conference until September of 2021.

Central East Region's Deadline

The Plaintiff did not meet the Central East Region's deadline of October 15, 2021, to strike the jury notice. Therefore, the matter could not be scheduled for the November 2021 trial sittings, which commence less than a week after the motion. The reality, therefore, was that the matter would not be heard until the May 2022 sittings in any event.

Trial Scheduling

The matter was never scheduled for trial. The first request for the matter to be scheduled for trial was in September 2021 at the pre-trial conference, which was less than two months prior to the Plaintiff's motion date to strike the jury notice and to have the matter added to the November 2021 running trial list.

State of the Pandemic

The Plaintiff failed to meet her onus of proving that justice to the parties would be better served by discharging the jury.

From the information in relation to the pandemic at the time of the motion, the Ontario government had announced that all restrictions may be removed in March 2022, as long as things continue in a positive manner. Therefore, Justice Christie ruled that it was highly likely that civil jury trials would resume in May 2022; however, in any event, the Plaintiff failed to demonstrate the contrary. Therefore, there would be no further delay in the trial proceeding.

The Availability of Civil Jury Trials

While criminal jury trials were the priority, the Central East Region offered the opportunity for civil trials to be backed up to criminal jury trials and that if those criminal jury trials collapsed, the civil jury trial could proceed. Given the foregoing, civil jury trials were scheduled, albeit as backups to resolved criminal jury trials, at the time of the motion.

Jury Pool

There was no evidence presented that when jury trials resumed, the jury pool would not be representative of the community due to certain segments of the population having a heightened vulnerability to COVID-19. Justice Christie specifically noted that criminal jury trials had been ongoing for some time in the Central East Region, which contradicted this Plaintiff's submission concerning the state of jury pools.

The Defendant's Statutory Right

The Defendant exercised his statutory right to proceed with a jury from the outset of the matter and prepared his defence with this in mind.

Ultimately, Justice Christie noted that the Plaintiff failed to move the action forward expeditiously, as there was a two-year gap between the trial record being passed and the date of the pre-trial conference. According to Justice Christie, the Plaintiff's conduct did not suggest a litigant anxious to move the matter forward to trial.

...the specific circumstances of a particular case and the current state of the COVID-19 pandemic will be paramount...

Justice Christie also noted that the delay in the case would be minimal, if any, based on the current COVID-19 projections. Although any delay in obtaining a jury trial could constitute prejudice, Justice Christie was not satisfied that the possibility of delay due to the present state of the COVID-19 pandemic outweighed a Defendant's substantive right to a jury trial.

To this end, Justice Christie ruled that the Plaintiff failed to meet her onus of proving that justice to the parties would be better served by discharging the jury. Given the foregoing, the Plaintiff's motion to strike the jury notice was dismissed.

Conclusion and Takeaway

The recent decision in Corkett highlights the factors the court takes into consideration in reaching a decision whether to strike or maintain a jury notice. In this regard, the specific circumstances of a particular case and the current state of the COVID-19 pandemic will be paramount when the court renders such a decision.

For example, the young age of the Corkett matter, the Plaintiff's failure to move the action forward expeditiously, the lifting of COVID-19 pandemic restrictions and the availability of jury trials in the foreseeable future led to the jury notice being maintained in Corkett. Whereas, the older age of another Central East matter, Francisco v. Li, 2021 ONSC 1032,² the continued presence of COVID-19 restrictions, and the uncertainty as to when jury trials would proceed led the jury notice being struck in Francisco.

Corkett also shows the importance of the evidence filed in support and in opposition to a motion to strike a jury notice, as such motions tend to turn on the evidence provided to the motion judge.

For example, the Defendant in Corkett successfully opposed the Plaintiff's motion to strike the jury notice by providing evidence specific to his case which supported maintaining the jury notice. Whereas the same cannot be said for a similar Central East decision, Natario v. Rodrigues, 2021 ONSC 4156 (CanLII),³ as the Defendant in Natario “failed to provide any real evidence that the striking of the jury notice [would] cause the Defendants any prejudice.”

Despite the recent trend of the courts dismissing juries, the recent decision in Corkett suggests that a party can, in fact, successfully oppose a motion to strike a jury notice during the COVID-19 pandemic. The trend since the onset of the COVID-19 pandemic has been discouraging to those wishing to maintain the fundamental right to a trial by jury. However, opposing such a motion can be successful when counsel focuses on the evidence and the list of factors a court is mandated to consider. In doing so, they should submit, if possible, that the specific circumstances of their case favours maintaining a jury notice.