The COVID-19 pandemic has ushered in an era of uncertainty for litigants in several respects, not the least of which has included interruption to regular Court operations and uncertainty with respect to whether and when civil jury trials can be conducted.
The most recent indicator of this uncertainty was the Notice to the Profession and Public Regarding Court Proceedings issued by Chief Justice Morawetz on November 21, 2020 in response to the increasing number of COVID 19 cases in Ontario, which was then updated on December 14, 20201. This Notice stated that the Court will not commence any new jury selections in any court location except those in a Green Zone as defined by the Ontario Government. The suspension of jury trials has been extended until at least January 29, 2021. The increasing number of COVID-19 cases indicates a likelihood that jury trials will remain suspended for an indeterminant period.
A jury notice is a demand that the case be resolved by a jury trial rather than by a judge alone trial. Jury notices are commonly filed by Defendants in personal injury matters. The delays and uncertainty surrounding civil jury trials during the pandemic has created an access to justice issue which is particularly troubling for injured Plaintiffs, who want fair, just, and swift resolution of their cases.
In an effort to address access to justice concerns, lawyers for Plaintiffs have been asking the Courts to strike Defendants' demands for jury trials, seeking instead that matters be resolved by judge alone trials which, in many regions, can be heard sooner.
When deciding these requests, the Courts have been asked to balance a Defendant's legislative right to demand a jury trial against both parties' right to access justice, which is fundamental to the rule of law and is protected by the constitution.
On the one hand, the right to demand a jury trial is statutory right found in the Courts of Justice Act, and has long been recognized as an important substantive right that should not be interfered with without good reason. On the other hand, it is also well established that the right to a jury trial is not absolute, and that the interests of justice must prevail. The Court will consider implications to the parties at hand and to the administration of justice more broadly.
How, then, do the unique issues that arise as a result of the COVID-19 pandemic weigh on these considerations?
In a recent decision out of London, Pietsch et. al. v Lyons2, Madame Justice Rady declined to strike the jury notice for a trial scheduled to commence in September 2021, adopting the 'wait and see' approach that was recently endorsed by the Divisional Court in Louis v Poitras3.
Madam Justice Rady confirmed that an allegation or concern of a delay alone is an insufficient basis on which to strike a jury; rather, there must be a strong evidentiary record on which a court can determine that there will be an unconscionable delay. She found that the evidentiary record before her was deficient, and that much of the Plaintiff's argument relied on "conjecture" about such matters as the state of the trial list, court facilities, and allocation of resources.
Justice Rady declined to adopt what she described as the "considerable pessimism" of Plaintiff's counsel regarding the outlook for jury trials in 2021, noting, rather, that the court has made "significant and rapid advances in its ability to adapt". She was persuaded as well by the fact that the case was not on the eve of trial: "Much can happen between now and next fall, making even current information subject to change and the wait and see approach the most suitable."
In summary, a Plaintiff's concerns about access to justice during the pandemic may be alleviated if they are able to persuade a court to strike the Defendant's jury notice and have their matter heard sooner by judge alone.
However, in order to increase their chances of success with such a request, a Plaintiff must provide the Court with a complete evidentiary record, including specific evidence about availability of court resources, resource allocation, and delays within a particular local region, as well as evidence of specific prejudice to the parties and the impact to the administration of justice as a whole. In the absence of a strong evidentiary record on those issues, courts are reluctant to dispense with the statutory right to demand a trial by jury.
2 Pietsch et. al. v Lyons, 2020 ONSC 7628 (Ont. SCJ.)
3 Louis v Poitras, 2020 ONSC 6907 (Div. Ct.)
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