Jury Striking And The Statutory Deductible: Rumney V Nelson, 2021 ONSC 5632

• Published date: 31 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McLeish Orlando LLP
• Author: Mr Brandon Pedersen and Aidan Vining

The recent decision of Rumney v Nelson, 2021 ONSC 5632 out of Orangeville is yet another case where the Defendant's jury notice was conditionally struck. Interestingly, this case has the added bonus of a discussion about whether a jury should be advised of the statutory deductible in motor vehicle collision cases.

Background

The action arose from a 2012 rear-ending motor vehicle collision. At the time of the motion hearing, the action was scheduled to be tried before a judge and jury in October 2021 and expected to last 4 weeks.

Jury Striking

Due to the ongoing COVID pandemic, the Plaintiff sought a conditional order to strike the Defendant's jury notice. If the Court is not permitting civil jury trials in Orangeville when the matter is called for trial, then the matter would proceed anyways - but without a jury. On the other hand, if jury trials are permitted when the matter is called for trial, then it would proceed with a jury.

In deciding whether to strike the jury notice, Byrne J. stated:

[26] When deciding whether justice will be served by striking the Jury Notice, the court should consider (i) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication, (iv) the age of the case, and (v) the history of adjournments: Johnson v. Brielmayer, 2021 ONSC 1245 at para 32.

Byrne J. considered the fact that the motor vehicle collision took place nearly 9 years ago, and that the Orangeville courthouse only has one courtroom sufficiently large for a jury to socially distance. The matter had not been adjourned before, but due to the local conditions in Orangeville, the matter may not be rescheduled for another two years if juries are not available when the matter is called to trial.

Due to this risk of delay and lack of access to justice, Byrne J. conditionally struck the jury notice.

Instructing the Jury of the Statutory Deductible

The Plaintiff also sought an Order that the judge at trial provides an instruction to the jury regarding the statutory deductible as set out in s.267.5(7) of the Insurance Act. Specifically, the Plaintiff wanted the jury to be told how the statutory deductible works and that they should not consider it...