The backlog in Canadian courts, which have worsened since the COVID-19 pandemic in tandem with the record number of judicial vacancies in Canada, have made it increasingly difficult to hold civil jury trials. This has led plaintiffs to seek leave to bring motions to strike jury notices, in hopes of obtaining a more expeditious trial date.

In Boniferro v Jolicoeur, 2024 ONSC 2601, the plaintiff was involved in a motor vehicle accident and sought leave to bring a motion to strike the jury notice, to amend her claim to bring it within and have it tried pursuant to the simplified procedure.

The plaintiff argued several factors in favour of being granted leave, including the increase in the monetary limit of the simplified procedure as well as the COVID-19 pandemic-related backlog in scheduling civil jury trials in Sault Ste. Marie. However, the defendant opposed the motion, emphasizing the plaintiff’s knowledge of these circumstances before the trial record was filed. In addition, they argued that the right to a jury trial is a substantive right, and the plaintiff had failed to establish that justice would be better served by striking the jury notice.

In determining whether to grant leave, Justice Boucher focused on the first two factors set out in Fulop v Corrigan, 2020 ONSC 1648 at para. 77, and found that the grounds the plaintiff argued in support of her request to strike the jury notice and move the action into the simplified procedure pre-existed the filing of the trial record. In addition, there had been no substantial or unexpected changes in the circumstances since the matter had been set down for trial. He refused leave to bring the motion, and makes clear that he also would have refused the relief of striking the jury notice and moving the action into the simplified procedure.

It was the plaintiff’s position that a judge-alone trial would be more cost-effective and quicker to schedule, while causing no prejudice to the defendant. That said, efficiency alone does not justify striking the jury notice: Lightfoot v Hodgins, 2021 ONSC 1950 at para. 73. The problems with scheduling civil jury trials were known to the plaintiff prior to filing the trial record. In addition, the moving party must show that justice to the parties is better served by discharging the jury: Cowles v Balac, 2006 CanLII 34196 (ON CA) at para. 37. There was no evidence to suggest the stress the plaintiff claimed she was experiencing went beyond that which typically arises during litigation, nor was there evidence specific to her about the potential financial impact of a jury trial. Ultimately, striking the jury notice would deprive the defendant of a substantive statutory right, while not necessarily providing any benefit for the parties.

The issue of chronic backlog in scheduling jury trials can also be seen in Lounds v Lounds; MacIsaac v Lounds, 2024 ONSC 2010, but in this case, the motion to strike the jury notice was granted. Two actions arose out of a motor vehicle accident, and it was ordered that they be tried one after the other with a jury and be completed in six weeks. The plaintiffs brought a motion to strike the jury notice on the basis that it would be impossible for the two actions to be completed in six weeks with a jury. This case is distinguishable from Boniferro v Jolicoeur as it was in the interest of justice to strike the jury notice as the parties had already been prejudiced by the age of the case. To commence a trial at a later date with a jury, knowing that the jury would almost certainly have to be dismissed partly though the trial because of time constraints, is a waste of the court’s already limited resources.

To add to the delay, judicial appointments are not keeping up with retirements and added judicial positions. A lawyer in Ottawa brought an application for judicial review , to try to force the federal government to speed up the process. The Court declined to order the government to make appointments within a defined timeframe, but issued a declaration that appointments should be made within a “reasonable time”, and left open the possibility that it could intervene if the situation does not improve.

That said, jurisdictions that might not have the capacity for a jury trial (such as Sault Ste. Marie) created a protocol as part of the response to this delay, and parties should be aware of this. Local Administrative Justice Varpio implemented a new scheduling protocol on February 8, 2024 which establishes civil jury running trial lists in November as well as non-jury running trial lists in April. Additionally, parties may seek, but may not necessarily receive, set dates for non-jury civil matters on an ad hoc basis.

There is an additional civil jury running trial list scheduled for January 2025, meaning that the earliest the Boniferro v Jolicoeur matter could proceed before a jury is January 2025. If it is not reached, it will then be scheduled for the November 2025 running trial list. If it is not reached on that list, there will be a delay of another year. If it was a non-jury civil trial, it could be scheduled in the April 2025 running trial list. If it is not reached, it would be delayed a year. There are two civil jury running trial lists and one non-jury running list in 2025. Evidently, if the action cannot be tried next year, it will go over to 2026 in either case.

Nonetheless, for upcoming jury trials in jurisdictions that might not have capacity for a jury trial, such as in Sault Ste. Marie, it is still important to note the high threshold that must be met in order for a jury notice to be struck. Justice Boucher’s decision emphasizes that striking a jury notice could deprive defendants of a substantive statutory right, and should not be done lightly. The moving party must establish that justice will be better served by striking the jury notice. Accordingly, parties should anticipate lengthy delays in their matter being heard before a jury.

Elisa Prezzano is a summer student at ZTGH and the author of this blog. If you have any questions about this blog, please contact Elisa at 416-777-5315.