Two Recent Decisions On Motions To Strike Jury Notices During COVID-19

• Published date: 13 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Rogers Partners LLP
• Author: Mr Matthew Umbrio

In December 2020, Justice Nicholson, of the Ontario Superior Court of Justice ("ONSC"), released two decisions, Solanki v. Reilly ("Solanki")¹ and Smith v. Muir ("Smith")², addressing motions brought by the plaintiffs to strike jury notices in actions commenced in London.

Justice Nicholson's decisions provide common sense solutions to the complications that have arisen with respect to jury notices in the COVID-19 climate.

Background

Justice Nicholson, in both Solanki and Smith, helpfully summarized the Ontario Court of Appeal ("ONCA") and ONSC decisions that have been released throughout the COVID-19 pandemic and the various approaches taken with respect to motions to strike jury notices.

He notes first that the ONCA, in the 2006 decision of Cowles v. Balac³, stated that the right to have an action tried by a jury is important and should not be interfered with without just cause or cogent reason. The relevant test is whether the moving party has shown that the justice to the parties will be better served by the discharge of the jury.

With the onset of the COVID-19 pandemic, however, the ONCA recognized, in Girao v. Cunningham⁴, that the right to a jury trial in a civil action, although fundamental, is not absolute and must sometimes yield to practicality.

Various factors have been recognized by the courts in the many motions to strike jury notices during COVID-19, which assist the presiding motion judge in determining whether justice to the parties will be served by trying the case with or without a jury. These factors, as summarized by Justice Nicholson, include the following

1. Regional or even local differences with respect to the resources available to the court;
2. Regional differences in how the pandemic has affected the community where the trial is to be conducted;
3. The date of the incident giving rise to the action;
4. The time between the motion to strike and the trial date;
5. The number of times a case has been previously adjourned and
6. The specific circumstances of the parties.

Justice Nicholson then reviewed the various motions and their outcomes, noting there to be two distinct lines of cases. The first line of decisions have used the "wait and see" approach. The motion judges in these decisions concluded that the ultimate decision whether the jury notice will be struck should be postponed until such time as there is greater certainty as to whether the case can proceed with a jury. These motions were largely heard in the Toronto and Central East...