December 15, 2020 | By Julius Melnitzer
Citing the uncertainty as to when civil jury trials might resume during the pandemic, motions to strike juries have proliferated. Critics pointed to the extra effort, co-ordination, length and expense jury trials required, as well as the strain on jurors and demanded their elimination.
“Since COVID began, judges have been striking jury notices left, right and centre,” said Barbara Legate of Legate Personal Injury Lawyers in London, Ont.
Fortunately, the Divisional Court’s unanimous decision in Louis v. Poitras 2020 ONSC 6907, released on Nov. 16, has gone a long way to restoring the civil jury trial to its proper perspective.
Motions to strike, the court ruled, could not succeed on the basis of bald assertions of delay related to the pandemic.
“The mere statement of delay or the implication of its presence is not enough [to strike a jury],” the court wrote. “There must be some evidence or other indication that contributes to prejudice to the parties or concerns for the administration of justice.”
Faced with the uncertainty caused by the pandemic, a “wait-and-see” approach — one that left the matter open for reconsideration if circumstances changed — was more appropriate in many cases.
“The use of ‘wait and see’ in this way demonstrates the willingness of the court to be flexible in its approach to the novel issues the pandemic has presented,” the court wrote. “It may be that where the overall administration of justice is the concern, this approach will not be appropriate. If the concern becomes the ability of the court to deal with an ever-mounting backlog, delaying the decision may not assist in responding to that growing concern. That is for another case, on another day.”
Louis originated with a motor vehicle accident in May 2013. The plaintiffs sued the tortfeasor and underinsured motorist insurer, and subsequently brought an action against the accident benefits insurer. The defendants in both actions filed jury notices in 2015.
The Superior Court set aside 10 weeks in April 2020 to try the actions together in Ottawa.
COVID-19 struck in March. The Superior Court suspended operations.
“The question of when civil jury trials will be available in Ottawa became and remains uncertain,” the Divisional Court noted.
In August, the defendants moved to strike the jury notice. Justice Robert Beaudoin granted the motions (Louis v. Poitras 2020 ONSC 5301) in September. He based his order solely on the delay caused by the pandemic.
“I recognize that there are few decisions that identify delay as being determinative on its own of the right to trial by jury,” Beaudoin stated. “Regardless, I find delay to be determinative on its own of the right to trial by jury.”
The plaintiffs appealed, successfully.
As the Divisional Court saw it, Beaudoin’s decision was arbitrary. He had relied on “the fact of delay” without evidence applicable to the “specific situation” before him.
“Simply identifying that there is delay is not enough,” the court wrote.
Counsel, the court suggested, had a duty to inquire about when a jury might be available and present it to the court in a non-adversarial manner. In this case, counsel had not done so.
“It would have been helpful to the motion judge if they had,” the court stated. “It would be best if this was done co-operatively and a common understanding arrived at. Where appropriate, with the assistance of court staff, it may be that it can be updated by the motion judge. Adversarial affidavits will not be helpful.”
In the result, the Divisional Court allowed the appeal and reinstated the jury notice “without prejudice to the motion being renewed whenever information is available to be considered by the court as to either prejudice to the parties or the overall administration of justice.”
Todd McCarthy of Flaherty, McCarthy LLP, which has offices in Toronto, Whitby and Ottawa, lauds the decision.
“Wait-and-see is the best and most principled approach to balancing the concerns about COVID-19 with the substantive right to a jury,” he says. “The sledgehammer approach to eliminating trial by jury that preceded this decision was just not appropriate.”
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by e-mail directly at [email protected] or at his website, www.legalwriter.net.
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