"Wait And See": Court Says Jury Notices Should Not Be Prematurely Struck

• Published date: 10 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Operational Impacts and Strategy
• Law Firm: Rogers Partners LLP
• Author: Mr Alon Barda

I wrote an article about two months ago entitled " The End of Civil Jury Trials? Jury Notice Struck Due to COVID-19." At the time, I discussed the case of Belton v. Spencer 2020 ONSC 5327,¹ wherein the motion judge held that the defendant's right to a trial by jury was outweighed by the need to provide the plaintiff with more timely access to justice (the COVID-19 related delay in that case being a year to eighteen months).

There have been other cases where a jury notice was also struck (see, for example, Louis v. Poitras, 2020 ONSC 5301).

Conversely, in the decision of Jiang v. Toronto Transit Commission, 2020 ONSC 5727, Justice Wilson did not strike the jury notice on the grounds that Toronto was in a position to hold jury trials.

Two recent decisions were decided on a "wait and see" basis, which shows that the courts are perhaps more willing to allow jury trials to proceed should the circumstances allow.

The Decisions

MacDougall v. Sisley

In MacDougall v. Sisley, 2020 ONSC 6632, Justice McKelvey noted that, on September 17, 2020, the Regional Senior Judge in the Central East Region issued a notice regarding the resumption of civil proceedings.

The notice advised of the cancellation of the November 2020 trial sittings and that the status of the May 2021 sittings remains uncertain. A running trial list for both jury and non-jury trials was implemented, commencing on October 5, 2020. Due to a spike in COVID-19 cases, jury selection in the Region of York was suspended for 28 days starting on October 16, 2020. This impacted Newmarket, but not Oshawa and Barrie.

Justice McKelvey noted that three courtrooms have been renovated in the Central East Region to put in place the appropriate COVID-19 safeguards. In early 2021, it is expected that two additional jury courtrooms will be available in Midland and Lindsay. Furthermore, consideration is being given to having a courtroom in Barrie dedicated to trying civil jury cases at the beginning of January 2021.

Justice McKelvey found that the prior decisions on the jury issue are not inconsistent as he found that they "reflect the fact that circumstances matter." For example, he highlighted that, in the Belton case, the cause of action arose in May 2010 and the trial had already been adjourned on two occasions. The evidence accepted by the court was that a jury trial would be delayed by somewhere between 12 to 18 months. The evidence may very well be different in other cases.

Ultimately, Justice McKelvey adopted a...