The Beginning Of The End? What Recent Decisions Could Mean For Jury Trials In Ontario

• Published date: 24 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Professional Negligence, Operational Impacts and Strategy
• Law Firm: Rogers Partners LLP
• Author: Ms Colleen Mackeigan

Introduction

The Province of Ontario has been considering abolishing jury trials for civil matters, although no official decision has been announced. However, the closure of the Ontario courts due to COVID-19 and the impact of same on the legal system has potentially fast-tracked the end of juries.

This is concerning. The Supreme Court of Canada has stated that the "right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons".¹

As some regions, including Toronto, prepare to begin civil jury trials this fall, the majority of regions have determined that civil jury trials will not proceed for the foreseeable future. In the following cases, the court struck the jury notice of the defendant, allowing the matter to be heard by judge alone, on the basis that doing so would prevent further delay.

Benson v. Spencer, 2020 ONSC 5327

Background

The plaintiff in this case alleges personal injury as a result of being kicked by a horse owned by the defendant. The incident occurred in May 2010.

The action was initially set down for trial in May 2017 and was scheduled to proceed in November 2018. Several months prior, the trial was adjourned due to the plaintiff experiencing new symptomology, perhaps related to the accident, that had not been previously addressed. An adjournment was granted to allow more time for expert reports to be proffered in respect to the plaintiff's new symptomology. The trial was bumped to the May 2019 trial sittings.

Several months later, the trial was again adjourned as the defendant was unable to attend a May 2019 trial due to a scheduled vacation. The trial was adjourned several more times thereafter ultimately landing on the October 2020 long trial list.

In June 2020, the parties were advised by the Regional Senior Justice that civil jury trials would not be proceeding in the region in 2020 due to ongoing COVID-19 concerns. It was suggested that if the matter was to proceed by judge alone, it could be heard in 2020.

Arguments

The plaintiff moved for an order striking the defendant's jury notice. The plaintiff argued that the delay the action would endure in waiting for jury trials to resume in the region was such that justice would be better served by striking the jury notice and proceeding by judge alone.

The defendant argued that the concerns raised with respect to future delay of proceedings due to COVID-19 and pandemic related concerns that may arise once jury trials resume, were unknown and speculative and therefore the court should implement a "wait and see" approach, leaving it to the trial judge to ultimately decide whether to strike the jury.

The Decision

Justice Sheard found that adopting a "wait and see" approach would not mitigate against delay, as with a standing jury notice the parties would have to wait until civil jury trials resumed before a trial judge would be appointed on the eve of trial, and at that juncture the matter of striking the jury notice would likely be moot as the delay would have already been sustained.

With respect to the background of the action and the numerous adjournments of trial, Justice Sheard was more deferential to the plaintiff's position and did not find that the plaintiff had caused delay to the extent the defendant suggested.

In coming to this decision, notable attention was given to the hurdles that the courts will likely face running a jury trial during the pandemic, including whether it would even be possible to secure a jury due to concerns that would likely result in potential jurors being granted exemptions or deferrals to serve.

In light of these likely hurdles and the established principle that jury trials, while fundamental, are not absolute and must sometimes yield to practicality², Justice Sheard struck the defendant's jury notice.

Louis v. Poitras, 2020 ONSC 5301

Background

This action arises from personal injuries allegedly sustained in a motor vehicle accident that occurred in 2013. The trial was originally scheduled to proceed in May 2018. The pre-trial was adjourned due to a conflict involving plaintiffs' counsel and thereby the trial could not proceed as originally scheduled.

In June 2018, it was ordered that the tort and accident benefit actions arising from the same 2013 accident involving the plaintiffs be heard together in April 2020. Given that the courts operations were suspended as of April 2020, the trial did not proceed.

Arguments

The plaintiffs moved to have the jury notice struck on the basis that proceeding with a jury would cause delay with respect to rescheduling the trial.

The defendants argued that they had a substantive right to a jury and the plaintiffs' motion was premature as it...