Current Trend: Optimism That Civil Jury Trials Will Take Place in Spring 2021

COVID-19 has delayed many civil jury trials, creating concerns of prejudice. In the recent decision of Saadi v. Silva, 2020 ONSC 6700, the plaintiff brought a motion to strike the jury after the trial was adjourned.

In October, a jury was selected for the Saadi v Silva matter. However, after jury selection, Premier Ford announced that Toronto would return to a modified Stage 2. As part of this return, in-person trials were to continue at the discretion of the trial judge. Since in this case, no evidence had been called and no opening statements were made, the jury was discharged. The trial was adjourned to June 2021.

The plaintiff quickly moved to strike the jury notice, stating that there would be prejudice due to the impact of COVID-19 on public health and the justice system. Justice Kimmel dismissed the motion, without prejudice. “Courts have often adopted a ‘wait and see’ approach … to protect the substantive right of the party who wants a jury trial, and only to dismiss the jury if the circumstances at the time warrant it, and not based on anticipated circumstances that may not materialize (see para 18).”

Justice Kimmel noted that the adjournment of this trial would result in some prejudice and inconvenience to the plaintiff. However, the implications of delay must be balanced against the loss of the defendants’ right to a trial by jury. The prejudice to the plaintiff did not justify depriving the defendants of their right to a trial by jury after having conducted their defence based on a jury.

Justice Kimmel seemed confident that June 2021 jury trials would take place, writing that: “… there is a scheduled sitting for civil jury trials in Toronto in June 2021 and there is an infrastructure in place that has already been proven to be successful for enabling jury trials to proceed in Toronto during the COVID-19 pandemic.”

Justice Kimmel distinguished this case from previous decisions at paragraph 24:

   
Vacchiano v. Chen, 2020 BCSC 1035 [Reasons: July 10, 2020]

  • 10-day trial scheduled to start 10 days after motion was argued
  • Personal injury claim arising out of a motor vehicle accident that occurred in December 2015
  • The next available dates for a 10-day jury trial were not expected to be until January of 2022
  • This delay raised the following concerns:
    • Risk of decaying memory of witnesses where both liability and damages are at issue
    • Potential for significant costs to be incurred by the plaintiff and concerns about the plaintiff’s psychological and financial condition
    • Additional costs for updated expert examinations and reports, and additional examinations for discovery
    • The trial may be conducted under new rules for experts, which could mean that the plaintiff would not be able to recover costs of some of the experts that plaintiff presently relies on

 

2 Higashi v. Chiarot, 2020 ONSC 5523 [Ottawa, Oral reasons: September 1, 2020]

  • Personal injury claim in an action commenced in 2014
  • The trial was scheduled to commence March 23, 2020 and had already been delayed by almost six months due to the COVID-19 pandemic
  • It was considered to be probable that civil jury trials will be delayed for some time (given the delays being experienced in Ottawa with the criminal jury trials and resulting backlogs)
  • This delay introduced the following further concerns:
    • The plaintiff will statutorily lose 30% of any pre-trial loss of income
    • The expert reports were mostly dated 2019 and 2020 and the cost to update them was expected to increase as the delay got longer
  • The state of uncertainty resulting from COVID-19 was very much unknown. There was no indication of when a 4-week civil trial with a jury could proceed in Ottawa. Considering the level of uncertainty about the availability of civil jury trials in Ottawa and adjournment to an unknown future date would not serve the interests of justice or the interests of the parties
  • If civil jury trials become available before the judge alone trial commences, the parties could appear before Justice Rogers to determine whether the interests of justice then balanced differently. The possibility of a timely jury trial was not foreclosed

 

Belton v. Spencer, 2020 ONSC 5327 [Belton], aff’d 2020 ONCA 623 [Belton ONCA][Central South Region (Hamilton), Trial decision heard: September 4, 2020; Appeal stay decision heard on September 29, 2020, released October 1, 2020. Motion for stay dismissed]

  • 4-week trial
  • Personal injury claim arising from an accident that occurred in May 2010
  • Trial date had been previously adjourned four times
  • It was not known when civil jury trials would resume in Hamilton
  • The anticipated delay to trial was estimated to be at least 12-18 months
  • Delay of the trial for more than one year in the circumstances of this case was found to be unconscionable
  • Overall delay raised concerns about the fading memories of witnesses and the cost of having to update expert reports
  • No evidence of specific prejudice to the defendant of a judge alone as opposed to jury trial was before the court

 

 

The decision about the importance of jury trials in civil cases is particularly interesting in light of rumblings that Ontario may eliminate civil juries. To learn more, read “Ontario Attorney General seeks input on removing juries form civil trials.”

 

 

Comments

  1. This judicial “optimism” is belied by continuing trial suspensions (see today’s Lawyer’s Daily column below) amidst an ever-worsening pandemic. ON auto insurers are taking cynical advantage of this judicial “optimism” with their persistent demands for jury trials (a tactic long used to delay policy benefits). As a result, seriously injured, vulnerable litigants (car crash victims) are unable to get non-OHIP treatments (such as cognitive retraining in brain injury cases). For treatment to be effective it must be timely. (See this week’s Law Times column further below). Alas, the chances for recovery of these litigants is being deliberately undermined by the blissful optimism of some judges coupled with insurers’ hardball demands for jury trials.
    ……………..

    New jury selection and jury trials suspended as Ontario COVID-19 cases soar

    https://www.thelawyersdaily.ca/articles/22311/new-jury-selection-and-jury-trials-suspended-as-ontario-covid-19-cases-soar?spotlight=1

    “When parties are ready for a trial date, year long waits or more are not unusual,” Strong wrote in the blog post. “The delay in accessing justice is only growing worse due to the necessary Covid -19 restrictions.”
    ……………………………………………………..

    Personal injury lawyer discusses benefits of removing most civil juries

    https://www.lawtimesnews.com/practice-areas/personal-injury/personal-injury-lawyer-discusses-benefits-of-removing-most-civil-juries/335075

    Strong also called attention to how civil juries have impacted personal injury claimants who suffer from injuries preventing them from working and who require healthcare that is not financed by the Ontario Health Insurance Plan. Such claimants rely on social assistance as they wait, sometimes for years, for their cases to work through the system, Strong said.

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