Delay was sufficient reason, in and of itself, to grant motion striking jury notice

Plaintiff pedestrian was struck by defendant’s vehicle and alleged he suffered injuries including traumatic brain injury resulting in post-concussion syndrome. Pedestrian brought action seeking damages for his injuries, including damages for attendant care services, and his wife and children also sought damages. Trial was scheduled for four weeks but at end of four-week period plaintiffs’ case was not complete, two-thirds of witnesses remained to be called, and trial was scheduled to resume in 44 days. Part way through trial existence of umbrella policy with additional coverage available to defendant was disclosed. Plaintiffs brought motion for order that jury notice be struck, jury be discharged, and trial continue before judge alone. Motion granted. Delay was sufficient reason, in and of itself, to grant relief sought. Three of most critical witnesses to plaintiffs’ case had already given their evidence, there was concern about lack of freshness in minds of members of jury, and their evidence was critical to issue of causation. There would be gap of approximately two months between evidence of two neuropsychologists, and defendant’s neuropsychologist would be much fresher in minds of jury. Issues raised by plaintiffs with respect to timing of evidence called at trial in relation to timing of jury’s deliberation fell within scope of jury’s reasoning process; had potential to prejudice jury’s reasoning process; and had potential to prejudice jury’s ability to fulfil its role. Mechanisms in place to assist jury in fulfilling its role, including note-taking, charge to jury and audio recording of evidence, were not sufficient to make up for impact that delay would have on ability of jury to consider all of substantive evidence, assess credibility of all of witnesses and reach fair verdict. There was also potential prejudice to plaintiffs in presentation to jury of claim for damages for attendant care due to timing of disclosure of existence of umbrella policy and coverage available to defendant under that policy. While it was difficult to predict or assess magnitude of potential prejudice, potential prejudice arose because of timing of disclosure of insurance information and strategic decisions made by plaintiffs immediately following disclosure of information. Justice was better served by discharging jury.

Rolley v. MacDonell (2018), 2018 CarswellOnt 762, 2018 ONSC 508, Sylvia Corthorn J. (Ont. S.C.J.).