The Jury's Out: Another Jury Conditionally Struck ' Mackenzie v Pallister, 2021 ONSC 1840

Published date28 April 2021
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
Law FirmMcLeish Orlando LLP
AuthorMs Lindsay Charles and Brandon Pedersen

The Superior Court of Justice released another decision earlier this month where the jury notice was conditionally struck.


This motion was first heard in October 2020 by Boswell J. At that time, Boswell J. dismissed the motion but left it open to the plaintiff to re-initiate the motion in the event that the court suspended in-person hearings in the Simcoe-Muskoka courthouses or if the action had not been scheduled for trial prior to April 1, 2021.

In January 2021, the Superior Court suspended jury selection until at least May 2021. More recently, the Regional Senior Justice for the Central East region noted that in all likelihood, there will be no civil jury trials in the Central East region for the rest of 2021.

The plaintiff, therefore, renewed her motion to have the jury notice struck.

Legal Principles

McCarthy J. reviewed the legal principles underpinning jury strike motions in the age of the COVID-19 pandemic.

[6] Although the right to trial by jury is an important one, it is far from absolute. It is not a constitutional or quasi-constitutional right. It must yield to practicality. The overriding test is whether it has been demonstrated that justice to the parties will be better served by the discharge of the jury. When applying that test, context is important: see Girao v. Cunningham, 2020 ONCA 260, at para. 171.

McCarthy J. emphasized the importance of hearing these motions in the context of local conditions in referencing the Court of Appeal decision in Louis v Poitras, 2021 ONCA 49, in which Hourigan J.A. stated as follows:

[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75.

Position of the Parties

The plaintiff submitted that having the case tried by a jury is such that her justice would be denied or significantly delayed. Further, the plaintiff was concerned about her declining health, which would make her attendance at a jury trial uncertain, and that there was a high level of uncertainty regarding...

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