Striking Jury Notices During The COVID-19 Pandemic When Is It More Likely To Happen?

Published date16 September 2020
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Constitutional & Administrative Law, Trials & Appeals & Compensation, Government Measures, Contracts and Force Majeure
Law FirmMcCague Borlack LLP
AuthorMr Alan Drimer and Ryan R. Taylor

In just a few short months, the COVID-19 pandemic has prompted seismic changes in all of society; including having a profound effect on the health and behaviour of everyone.

We all have had to adjust every facet of our life in order to maintain a level of normalcy.

The Canadian justice system is no different.

Access to well-functioning justice and court systems are fundamental to a just and fair society. However, the COVID-19 pandemic has created challenges that have impacted the Canadian justice system.

The law profession has responded by adjusting their practices to both advance their clients' cases and maintain social distancing. Lawyers now routinely conduct examinations for discovery through web-based apps; a practice that was only used in the most exceptional circumstances pre-COVID-19.

Unfortunately, there are parts of the civil litigation process that cannot be done without human interaction, most notably: a jury trial.

Recently, the Ontario Superior Court of Justice has struck civil juries in two personal injury actions.

Belton v Spence, 2020 ONSC 5327

The plaintiff's claim arose from a 2010 incident in which he was kicked by a horse owned by the defendant. Counsel for the plaintiff (moving party) argued that a jury trial could delay the action by up to 18 months - if not longer. Thus, it was argued that justice would be better served by striking out the jury notice.

The defendant's position was the court should not assume that a judge-alone trial could be reached sooner than a trial heard before a judge and jury. Second, the case law recognizes the need to follow a "wait and see" approach and leave it to the trial judge to decide whether to strike out the jury as the trial judge is in the best position to decide whether justice between the parties requires the striking of the jury notice. Third, the defendant submitted that Vacchiano v Chen, 2020 BCSC 1035 (British Columbia Supreme Court decision to strike jury based on delay and fading memories of key liability witnesses) was distinguishable from the case at bar. Finally, it would be unfair for the plaintiff, who the defendant alleged was responsible for five years of delay, to now point to the possible delay caused by the pandemic as a reason to remove the defendant's substantive right to trial by jury.

After an exhaustive review of the relevant case law regarding a party's substantive right to a jury, Sheard J. struck the jury notice, holding that justice would be better served by striking it.

...a motion to strike a jury is generally best left in the hands of the trial judge.

Sheard J. acknowledged the defendant's position that a motion to strike a jury is generally best left in the hands of the trial judge. However, the difficulty with that position is the trial judge will not be appointed until the day before the commencement of the trial. Therefore, if a "wait and see" approach is taken, the delay in the scheduling of the trial, that the plaintiff seeks to avoid, will have already occurred.

The Court also attached no weight to the argument that the plaintiff had delayed the trial by waiting seven years to set the action down for trial, stating:

[40] I do not accept the defendant's submissions on that issue. I do not have evidence from which I could reasonably conclude that because the plaintiff did not set down his action until 2017, he was engaging in delay. There may be many reasons why plaintiffs do not set their actions down for trial. Without evidence, no assumptions can be made as to those reasons.

Further, the Court did not accept the defendant's submission that the pandemic and associated delays will affect all civil litigation proceedings equally, both jury and non-jury:

[43] ...The parties were told by RSJ Arrell in June 2020 that if the action proceeded by judge alone it might be scheduled in late 2020 or early 2021, but if it was to be heard by jury, the trial would not likely be scheduled for at least a year and...

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