Civil Jury Trials During The Pandemic

• Published date: 18 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Personal Injury, Litigation, Contracts and Force Majeure
• Law Firm: Siskinds LLP
• Author: Ms Christina Martin

The COVID-19 pandemic has ushered in an era of uncertainty for litigants in several respects, not the least of which has included interruption to regular Court operations and uncertainty with respect to whether and when civil jury trials can be conducted.

The most recent indicator of this uncertainty was the Notice to the Profession and Public Regarding Court Proceedings issued by Chief Justice Morawetz on November 21, 2020 in response to the increasing number of COVID 19 cases in Ontario, which was then updated on December 14, 2020¹. This Notice stated that the Court will not commence any new jury selections in any court location except those in a Green Zone as defined by the Ontario Government. The suspension of jury trials has been extended until at least January 29, 2021. The increasing number of COVID-19 cases indicates a likelihood that jury trials will remain suspended for an indeterminant period.

A jury notice is a demand that the case be resolved by a jury trial rather than by a judge alone trial. Jury notices are commonly filed by Defendants in personal injury matters. The delays and uncertainty surrounding civil jury trials during the pandemic has created an access to justice issue which is particularly troubling for injured Plaintiffs, who want fair, just, and swift resolution of their cases.

In an effort to address access to justice concerns, lawyers for Plaintiffs have been asking the Courts to strike Defendants' demands for jury trials, seeking instead that matters be resolved by judge alone trials which, in many regions, can be heard sooner.

When deciding these requests, the Courts have been asked to balance a Defendant's legislative right to demand a jury trial against both parties' right to access justice, which is fundamental to the rule of law and is protected by the constitution.

On the one hand, the right to demand a jury trial is statutory right found in the Courts of Justice Act, and has long been recognized as an important substantive right that should not be interfered with without good reason. On the other hand, it is also well established that the right to a jury trial is not absolute, and that the interests of justice must prevail. The Court will consider implications to the parties at hand and to the administration of justice more broadly.

How, then, do the unique issues that arise as a result of the COVID-19 pandemic weigh on these considerations?

In a recent decision out of London, Pietsch et. al. v Lyons², Madame Justice...