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This blog covers two recent decisions on motions where the Plaintiff sought to strike the jury notice due to the delay caused by the COVID-19 pandemic and reflect essentially mirror image approaches on how to deal with this vexing issue, varying by jurisdiction. In Frye v. Pattenden, 2021 ONSC 2373, Justice Healey provisionally struck the jury notice. In Roszczka v. Tiwari, 2021 ONSC 2372, Justice Trimble found the motion was premature and adopted a modified “wait and see” approach.

Jurisprudence

In both cases, the following principles from governing caselaw were emphasized:

  • The test to be applied by the Court on a motion to strike the jury notice is “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”  (Cowles v Balac).
  • The onus is on the party seeking to strike the jury to show why such an order is warranted (Cowles v Balac).
  • Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out the jury notice (Louis v Poitras ).
  • Whether a jury notice should be struck is a decision made on a case by cases basis and the judge hearing the motion to strike the Jury Notice is the person best able to decide whether to strike a jury notice (Louis v Poitras ).
  • The right to a jury trial is a substantive one and a party may be deprived of that right only for cogent and compelling reasons and/or “just cause”. The right to a civil trial by jury is not absolute and must sometimes yield to practicality (Girao v Cunningham).

Frye v. Pattenden, 2021 ONSC 2373

This was a Central East matter. The claim arose out of an assault that occurred on July 31, 2015 in Barrie, Ontario. The Plaintiff brought a motion to strike the jury notice on the basis of complexity and delay. The Defendants opposed the motion on the grounds that the case was not old, the trial had never been adjourned, the matter was not ready for trial and there was no prejudice to the Plaintiff.

Analysis:

At the time, the “Central East Notice to the Profession” on February 10, 2021 declared civil jury trials would not occur until well into 2022. Justice Healey consulted with the Regional Senior Justice for up-to-date information and was informed resources for jury trials will first be allocated to criminal and family matters, there was only one courtroom in Barrie retrofitted for socially distanced jury trials and civil jury trials would not occur until late 2022 and possibly later.

Given the above, Justice Healey weighed the following factors in her reasoning:

  1. The right of the Defendants to a jury trial is not absolute and must sometimes yield to practicality;
  2. The Defendants had not satisfied that any specific prejudice would result from striking the jury;
  3. The Plaintiff was ready to proceed with the trial;
  4. The Defendants can be ready for trial in May 2021;
  5. The trial length can be accommodated during the May 2021 trial sittings;
  6. The likely the earliest date for a civil jury trial will be in late 2022;
  7. The Central East region had a process to triage non-jury civil cases, and there was a strong likelihood that the matter could be reached in May 2021;
  8. The Plaintiff would have to update expert reports if the matter was delayed another year; and
  9. The Plaintiff’s past income loss claims were limited to 70% of his past losses but 100% of future losses. As time passes, future losses will convert into past losses which will result in an overall reduction in his income loss claims.

Upon weighing the above factors, Justice Healey provisionally struck the Jury Notice and the matter was placed on the May 2021 trial sittings. The order also included the provision that should the matter not be called to trial for the May or November 2021 sittings, the Defendants can bring a motion, on notice, to have the jury notice restored, on the basis that the prejudice to the plaintiff would then be offset by the fact that the trial delay would have nothing to do with the presence of a jury notice.

Roszczka v. Tiwari, 2021 ONSC 2372

This was a Central West matter. The claim arose out of a motorcycle collision that occurred on August 15, 2013. The trial was set to begin on October 4, 2021. The Plaintiff moved to have the jury notice struck. (S)he argued it was better to end the uncertainty surrounding jury trials by striking the Jury Notice now so the parties could prepare for trial. The Defendants opposed the motion as being premature and urged the court to adopt the “wait and see approach”.

Analysis:

Similar to the above decision, Justice Trimble consulted with the Regional Senior Justice on jury trials in the Milton/ the Central West Region. He considered the following factors in his decision:

  1. The Milton courthouse was closed due to mould and air quality issues. The work will not likely be completed by the end of 2021.
  2. Criminal and family cases will have priority over civil cases.
  3. While the matter is scheduled to begin on October 4, 2021 in Kitchener, the Kitchener courtroom has not confirmed it can be used.
  4. There was no confirmed off-site, Covid-19 precaution compliant facility for jury selection in Central West.
  5. The latest “Notice to the Profession” from March 7, 2021 indicated the earliest date for jury trials in Central West was the beginning of June 2021.

A modified “wait and see” approach was found to be appropriate in this case.  In his reasoning, Justice Trimble found it was premature now to strike the jury notice for the October 4th, 2021 trial. He disagreed with the Plaintiff’s position that the uncertainty surrounding the jury trials warrants striking the Jury Notice now. He found that the Defendants would pay the price by the termination of their important (although not absolute) right to a jury. He also stated striking the Jury Notice now would not eliminate all the uncertainty surrounding whether the trial would proceed on October 4, 2021.

As such, Justice Trimble ordered if civil jury trials can be accommodated, this matter shall proceed by Jury on October 4, 2021. If it cannot proceed before a jury, then the Jury Notices are struck and the trial shall proceed before judge alone.

Takeaways

Based on the above decisions as well as the current existing caselaw, it is clear that the decision to strike the jury notice surrounding the pandemic is highly contextual. A consideration of the unique circumstances of each case is important. As stated by Justice Trimble, the current caselaw is not binding but, instead, provides parallels or examples for judges to consider on motions to strike the Jury Notice. The decision ultimately rests with the Judges and their knowledge of the available resources in their respective regions to determine, on a case by case basis, whether justice is better served by striking the jury notice.

Justine Lee Young is an associate at the firm and author of this blog, you can reach her at 416-777-2811 ex. 5594.. If you have a question the Roszczka decision, you can reach out to Meredith Harper , the lawyer on the file, at 416-777-5207 .