Ontario Court Of Appeal Weighs In On Jury Notices In The Context Of The COVID-19 Pandemic

• Published date: 08 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Civil Law, Operational Impacts and Strategy
• Law Firm: Rogers Partners LLP
• Author: Mr Matthew Umbrio

On September 4, 2020, Justice Sheard of the Ontario Superior Court of Justice released a decision on a motion to strike the defendant's jury notice, in Belton v. Spencer.¹ Her Honour, in granting the plaintiff's motion, held that, in order to respond to the additional challenges to access to justice posed by the COVID-19 pandemic, the Court may need to grant Orders striking jury notices to ensure earlier, more efficient, and more affordable trials.

Justice Brown of the Ontario Court of Appeal, dismissed the appellant's motion for a stay and provided further guidance as to whether motions to strike jury notices will continue to be successful in regions where civil jury trials are currently not available due to the pandemic.²

Background

The appellant, Katie Spencer ('the Appellant'), was sued by the respondent plaintiff, John Belton ('the Respondent'), in a personal injury action.

The incident occurred in May 2010. The action was set down for trial in May 2017. The trial was originally set to proceed in November 2018, but was adjourned several times, with the trial eventually placed on the October 2020 trial list.

Due to the COVID-19 pandemic, Regional Senior Justice Arrell advised the parties in June 2020 that it was unlikely civil jury trials would proceed in 2020, and that the trial in this action would likely be delayed 12 to 18 months. As a result, the Respondent moved for an Order striking the jury notices, thus allowing the trial to proceed in 2020 before a judge only, which was granted by Justice Sheard.

The Appellant filed a notice of appeal to the Ontario Court of Appeal, moving under Rule 63.02(1)(b) of the Rules of Civil Procedure for an Order staying the Order of Justice Sheard that struck out the parties' jury notices.³

Issues on Appeal

The Appellant sought to have the action stayed 'until after the appeal process in this action and the appeal process in other actions involving the identical issue have been exhausted by way of a decision of this Court on appeal or by way of Special Case under Rule 22.'⁴

In response, the Respondent soughtto quash the appeal on the grounds that Justice Sheard's Order was interlocutory in nature, and, therefore, any appeal lay with leave to the Divisional Court.

Court of Appeal

Justice Brown noted that the principles applicable to a motion to stay an Order pursuant to Rule 63.02(1) are derived from RJR-MacDonald Inc. v. Canada (Attorney General).⁵ In that decision, the Supreme Court of Canada articulated a...