"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...