*Since the writing of this blog the decision has been reversed.

Justice Robert Beaudoin’s September 2020 decision to strike the jury notice in two Ottawa actions has been overturned by the Divisional Court in Louis v. Poitras, 2020 ONSC 6907 (CanLII). The actions had been scheduled for trial on April 20, 2020, but were delayed due to the COVID-19 pandemic. The Court acknowledged that the timing of the availability of civil jury trials in Ottawa was still uncertain and Justice Lederer added, “The directives make clear that criminal jury trials are to have precedence”.

The Panel, comprising of Justice Lederer, Justice Trimble and Justice Wilson, discussed the importance of a civil litigant’s right to a trial by jury. Where trial by jury has been described as a “fundamental” and “substantive” right, the Divisional Court compared this language to the value of the rights extolled in the  Charter of Rights and Freedoms. In citing the Courts of Justice Act and the Rules of Civil Procedure, the Court noted that the right to have an action tried by a jury is not absolute, however, noting that certain causes of action are prohibited from being heard by a jury and further, the Court has “general discretion to order that matters other than those listed proceed without a jury”.

The Court relied to the Ontario Court of Appeal decision of Cowles v. Balac, 2006 ONCA 34916 (CanLII), as the leading case setting out the test to be met by a party seeking to strike a jury notice. The ultimate question to be answered by the Court is whether justice will be better served by discharging or retaining the jury as dictated by a consideration of the perspective and interest of the parties.

The Divisional Court ultimately found that Justice Beaudoin did not have the benefit of considering evidence prior to striking the jury notices. The Court granted the Defendants’ appeal, without prejudice, in leaving open the possibility of a further motion seeking to strike the jury notice with evidence before the Court as to prejudice to the parties or the overall administration of justice.

At paragraph 23 of the decision, the Court commented: “What is plain is that there was no foundation for a determination, by the motion judge, that the delay created by the pandemic caused any prejudice to the parties such that the jury notice could be struck…” In considering paragraphs 13, 24 and 30 of Justice Beaudoin’s decision, the Divisional Court noted that the increasing deductible for general damages, as well as the erosion of the plaintiff’s claim for income loss, was not a consideration in ultimately striking the jury notice. Similarly, the Divisional Court observed the lack of evidence regarding prejudice to the Defendants. 

The Divisional Court widened its analysis in examining the issue of delay in Canadian civil justice system in acknowledging that those delays, along with the high cost of civil proceedings,  impair access to justice to litigants. In doing so, the Panel broadened the factors set out in Cowles v. Balac, to include the implications for the administration of justice as a whole, in  striking a jury notice or discharging a jury.

The Court found that the motion judge did not consider evidence of prejudice caused to the parties by the prospective delay of the trial, where Justice Beaudoin ultimately struck the jury notice based on the fact of the delay, only. The Divisional Court identified this error by finding that it is arbitrary for the Court to strike a jury notice without evidence and discussion regarding the length, nature, and circumstances of the trial.  The decision states plainly,

On a motion to strike a jury the over-arching concern has been to provide justice to the parties. There are circumstances where the impact on the administration of justice, more broadly cast, may influence or be determinative of such motions. The decision of the motion judge to strike the jury notice was attributed, by him, solely to the presence of delay without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice. There was nothing to which he referred that considered the particular circumstances. In the absence of such information, the decision was arbitrary. The recognition of the presence of delay, without more, is not enough. 

The Court provided direction in reiterating the “need for some direct evidence of the immediate circumstances” to inform the Court of the factors to be considered on a motion to strike a jury while acknowledging that in light of the COVID-19 pandemic those circumstances that may influence a delay and constantly changing. The Court cited Belton v. Spencer, as an example of a case where the motion judge was fully informed of the evidence regarding the status of civil jury trials in the Hamilton Superior Court.

The Panel also considered the Toronto decision of Justice Darla Wilson, Jiang v. Toronto Transit Commission, where the Court denied the plaintiff’s motion requisition to schedule an urgent motion to strike the jury notice. In doing so, the Divisional Court reiterated that “a general assertion of delay is not enough” to discharge a party’s onus in striking a jury notice. 

Finally, the Divisional Court addressed the “wait and see” approach commonly adopted by motion judges in leaving the ultimate decision up to the trial judge. In light of COVID-19, however, the Panel noted that “if you wait for the trial judge the delay of concern will have already occurred.” Instead, the Court appears to have modified the “wait and see” approach in directing the Court to be “flexible in its approach to the novel issues the pandemic has presented.”

In short, the Divisional Court has provided direction to civil litigants in ascribing that the onus to  strike a jury during COVID-19 will not be discharged without material evidence that informs the Court about any prospective delay, the length and nature of the trial and prejudice to the litigants, as well as preservation of the administration of justice.

Meredith Harper is author of this blog, co-chair of the Appellate Advocacy practice group, and a partner at ZTGH. If you have a question about this decision, please contact Meredith at 416-777-5207.