Striking A Jury Notice ' Not So Fast!

• Published date: 14 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Government Measures, Operational Impacts and Strategy
• Law Firm: McCague Borlack LLP
• Author: Mr Eric W.D. Boate

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII),¹ the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

Factors

Justice Christie noted that courts have considered a number of factors when determining whether to strike a jury notice, namely:

• The length of the delay from the event that gave rise to the cause of action to trial;
• The parties' readiness for trial;
• The length of the trial;
• Previous trial adjournments;
• The local impact of the pandemic, to assess the likely timing for the resumption of jury trials;
• Costs to update expert reports; and
• Prejudice to the parties caused by delay in adjudication;

Plaintiff's Conduct

However, in reaching her decision in Corkett, Justice Christie considered the circumstances of the case and the current state of the COVID-19 pandemic, and declined to strike the jury notice for the following reasons:

...the court dismissed a Plaintiff's motion to strike a jury notice.

Litigation Commencement Date

The event giving rise to the litigation occurred on December 2, 2017, however, the litigation did not commence until January 16, 2019.

Trial Record/Pre-Trial Conference

The trial record was prepared and filed on July 9, 2019, yet there was no pre-trial conference until September of 2021.

Central East Region's Deadline

The Plaintiff did not meet the Central East Region's deadline of October 15, 2021, to strike the jury notice. Therefore, the matter could not be scheduled for the November 2021 trial sittings, which commence less than a week after the motion. The reality, therefore, was that the matter would not be heard until the May 2022 sittings in any event.

Trial Scheduling

The matter was never scheduled for trial. The first request for the matter to be scheduled for trial was in September 2021 at the pre-trial conference, which was less than two months prior to the Plaintiff's motion date to strike the jury notice and to have the matter added to the November 2021 running trial list.

State of the Pandemic

From the information in relation to the pandemic at the time of the motion, the Ontario government had announced that all restrictions may be removed in March 2022, as long as things continue in a positive manner. Therefore, Justice Christie ruled that it was highly likely that civil jury...