Jury's Out: Bench Trials Are In

McMillan LLP


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Ontario courts are leaning towards the elimination of civil jury trials, with the Ontario Superior Court of Justice in Lounds v. Lounds; MacIsaac v. Lounds, 2024 ONSC 2010 ("Lounds") recently striking a jury...
Canada Litigation, Mediation & Arbitration
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Ontario courts are leaning towards the elimination of civil jury trials, with the Ontario Superior Court of Justice in Lounds v. Lounds; MacIsaac v. Lounds, 2024 ONSC 2010 ("Lounds") recently striking a jury notice in relation to a motor vehicle accident which occurred ten years prior.1 As the Court previously noted in a 2023 decision:

"A jury trial is not a constitutional right, but is a procedural entitlement that, as discussed in past cases, is subject to contextual factors and reasonable limits in the interest of obtaining the most just, expeditious and least expensive determination of each proceeding."2


In Lounds, two actions arose out of a motor vehicle accident that occurred on January 27, 2014. The two actions were ordered to be tried together and trial dates were fixed, with a jury, for a maximum of six weeks.

The Plaintiffs in the main action brought a motion to strike the jury notice on the basis that it would be impossible for the two actions, or even just one of them, to be completed in six weeks with a jury. The Defendants opposed the motion on the basis that it was (a) premature; (b) entirely speculative; and (c) that there was insufficient evidence in support of the Plaintiffs' position. They argued that a "wait and see" approach should be adopted by the Court before reaching a final determination on this issue.3

The Test for a Motion to Strike Jury Notice

The Plaintiffs were first required to seek leave to bring the motion pursuant to Rule 48. The Court noted the pandemic created significant strain on judicial resources and that it had already been ten years since the accident giving rise to the action took place.

The applicable test for a motion to strike a jury notice under the Rules is whether justice to the parties would be better served by dismissing or retaining the jury. While a Court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.4

Jury Notice Struck

In Lounds, the Court held the jury notice should be struck and made specific reference to the judicial resource crisis in Ontario. The Court said that while ideally there would be "no time constraints and limitations on judicial resources", as a practical matter, the Courts have experienced an "unprecedented crisis" as a result of the pandemic. While the pandemic may be considered "over", its effects on the Courts persist and will continue to do so for some time. Justice Richard cited the Court of Appeal's comments in Louis v. Poitras, 2021 ONCA 49 – specifically, that the pandemic imposed extraordinary pressure on the civil Courts requiring judges to "respond to local conditions to ensure timely delivery of justice."5

The Court found that the logistical challenges with allowing the trial in Lounds to proceed with a jury were too substantial to overcome. For example:6

  • The Plaintiffs intend to call 25 witnesses at trial, all of whom are reasonably necessary;
  • 8-9 weeks was estimated for the jury trial, instead of the allotted six weeks, meaning the jury would almost certainly have to be dismissed partly through the trial because of time constraints; and
  • North Bay could not accommodate a jury trial of this duration and complexity.

While the Defendants advocated that the motion was premature, the Court noted that the parties had adopted a wait and see approach since 2018, and that it would be unjust to continue doing so.7 The Court could not accommodate a jury trial of this duration or complexity.8

Accordingly, the Court granted the motion to strike the jury notice, finding it both in the interests of justice and "necessary."9

What Does This Mean for Jury Trials in Ontario?

Lounds is another example of growing sentiment that jury trials are not absolute and must sometimes yield to "practicality." Where a Court finds that justice will not be served by retaining the jury, it will strike a jury notice, despite defence concerns.

In 2020, the Ministry of the Attorney General considered a legislative amendment that would eliminate some or all civil jury trials; while the government is still apparently considering this possibility, there has not been a reported update in some time.10 For now, the Courts appear to be fulfilling this potential legislative intent.


1 Lounds v. Lounds; MacIsaac v. Lounds, 2024 ONSC 2010 ("Lounds"); see also Louis v. Poitras, 2021 ONCA 49, Borkowski v. Karalash et al., 2023 ONSC 6274 ("Borkowski") and Fazari v. Lawley, 2023 ONSC 6409.

2 Borkowski at para. 68.

3 Lounds at para. 4.

4 Lounds at para. 22, citing Louis v. Poitras, 2021 ONCA 49.

5 Lounds at para. 22, citing Louis v. Poitras, 2021 ONCA 49.

6 Lounds at paras. 20 and 25.

7 Lounds at para. 24.

8 Lounds at para. 24.

9 Lounds at para. 25.

10 See: "Ontario has the worst court delays in the country. Will getting rid of civil jury duty address the issue?".

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2024

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