The civil jury trials are currently on hold due to Covid-19. The plaintiff anxious to get a day in the court can only move to strike a jury notice in order to have the trial by the judge alone, thereby bypassing the Covid-19 caused civil jury trials vacuum.
In the recent case of Louis v Poitras, 2021 ONCA 49 [Louis], a unanimous panel of the Ontario Court of Appeal affirmed that the Covid-19 trial delay is a sufficient and laudable reason for striking the jury notice and allowing the plaintiff to proceed to a Covid-19 non-jury trial.
The plaintiff in Louis was involved in a motor vehicle accident in the City of Ottawa. She sued an underinsured motorist involved in the accident as well as her own insurer for denied benefits, income replacement and punitive damage. Both defendants issued jury notices and the trials were eventually merged. The plaintiff then brought forth a motion to strike the jury notice, because, due to COVID-19 and the suspension of jury trials, requiring the trial to proceed by jury would result in significant delays. The plaintiff's motion was granted.
In unanimous disagreement, the Divisional Court pointed out a "fundamental" right to have a civil trial proceed before a jury. The court also followed Cowles v Balac,  O.J. No. 4177 [Cowles] in which the Ontario Court of Appeal held that "a party moving to strike a jury bears the onus of showing that there are legal or factual issues to be resolved...which merit the discharge of a jury" and that the court has to determine "whether justice to the parties will be better served by proceeding by trying a case with and without a jury" (Cowles at paras 37-38 cited in Louis – Div Ct at paras 8-9). The court found that while the COVID-19 pandemic had certainly added to the delays that a case may be subjected to if it is to be tried by a jury, simply claiming that one's trial will be delayed is not enough to strike a jury notice and that in striking the jury notice the motion judge had acted arbitrarily. The successful appellant (the defendant) was awarded a shocking $45,000 in costs.
Court of Appeal
The Court of Appeal unanimously found that the motion judge had properly considered the specific situation with COVID-19-related delays to jury trials in his region. He had considered Higashi v Chiarot, 2020 ONSC 5523 [Higashi], which was another decision pertaining to a motion to strike a jury notice, released just eight days earlier. In Higashi, the court struck a jury notice after taking into account factors such as (at para 42):
- It [was] not known [...] when a civil jury trial might be heard in Ottawa.
- It seems more probable that civil jury trials will be delayed for quite some time, considering the delays with criminal jury trials to date, and considering the resulting backlogs.
- The state of uncertainty resulting from COVID-19, for example, whether it will get better, whether it will get worse, whether there will be [another] wave, how that will impact us here in Canada, more specifically in Ottawa, how that will impact the civil justice system, how that will impact the availability of a civil trial is very much unknown. This state of not knowing favours a trial by judge alone, at this point in time.
- Balancing the risks and the rights of the parties, as well, seems to favour striking the jury notice, considering the existing state of uncertainty highlighted above.
- As indicated by the Supreme Court of Canada in Hryniak, a fair trial requires a process that is proportionate, timely and affordable, and this high level of uncertainty about when a jury trial might proceed in the future would make the probability of achieving these goals much more unlikely.
The Court of Appeal found that the motion judge's reliance on the information from a concurrent judicial decision would never be an arbitrary exercise of discretion (at para 31). Furthermore, it found that the motion judge appropriately turned his mind to the local conditions and made an unassailable finding that it was unknown when or how a jury trial might be heard in the subject matter (at para 33). This alone was sufficient for striking the jury notice. As a result, the Divisional Court's ruling was overturned and the motion order reinstated.
The Court of Appeal's decision affirms that the current Covid-19 civil jury trials delay and an ongoing and local COVID-19 uncertainty and impact on the administration of justice may be sufficient reasons alone for striking the jury notice and ordering the trial by the judge alone.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.