Four decisions have shown how juries can be dismissed during COVID

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Four recent Ontario civil court decisions have addressed the dismissal of juries in light of the COVID-19 pandemic. Three of the four decisions have helped set Ontario civil trials on a trajectory that ends with a reduced role for juries in the civil litigation process, says one leading personal injury lawyer.

Stacey Stevens, partner at Thomson Rogers Lawyers, says the decisions to strike juries in Belton v. Spencer 2020 ONSC 5327, Higashi v. Chariot 2020 ONSC 5523, and Louis v. Poitras 2020 ONSC5301 represent a body of precedent wherein judges may will strike juries to avoid further COVID-related delay and ensure access to justice in the most timely manner possible. Stevens says the rulings, as well, give some guidance to personal injury lawyers about how to structure their motions to have the greatest likelihood of success getting the jury dismissed.

“What I thought was interesting to take out of them is that we've got case law that shows the right to a jury trial in a civil case is not a fundamental right is a substantive one,” Stevens says. “Judges can  use  their discretion to set aside the jury if they feel that it's reasonable to do so.”

Stevens says that according to the Court of Appeal ruling in Cowles v. Balac, 2006 CanLII 34916 (ON  CA), a  decision to dismiss the jury must take into account the legal-factual issue of resolving evidence of the trial, the conduct of the trial and whether the moving party has shown that justice to the parties will be better served by the discharge of the jury. In these cases, she says, the judges recognized that delay resulting from COVD-19 is detrimental to the administration of justice.

Courts, Stevens says, must now look at how to efficiently deliver justice in light of these new circumstances: exacerbated delay and an ongoing pandemic. In these decisions the judges examined the history of when and how to strike a jury, finding that trials with unnecessary expense or delay can prevent the fair and just resolution of the dispute. The question, Steven says, comes down to whether justice is better served by dismissing or retaining the jury.

Stevens expects these rulings will result in an increase in jury dismissal motions in civil cases in jurisdictions outside of Toronto. So many cases, she says, have been languishing in limbo due to the COVID-19 pandemic, which has in turn pushed other matters further back. Trials by judge alone, she says, are faster and generally far less costly than a trial by jury.

Conversely, in Jiang v Toronto Transit Commission, 2020 ONSC 5727, the court denied the Plaintiff’s request to schedule an urgent motion to strike the jury. In Jiang the Plaintiff argued that potential jurors would be required to take the TTC to the courthouse and would likely blame the Plaintiff for that. Secondly, it was argued this was a complex action not suitable for trial. Justice Wilson disagreed with the

Plaintiff’s arguments and found that in Toronto “we are very fortunate to have courtrooms that have been retrofitted to accommodate the social distancing that is required to conduct jury trials” She went  on to acknowledge the decisions in Higashi, Loius and Belton however found that the potential prejudice to the Plaintiff was as a result of a undetermined delay; something that is not anticipated in Toronto.

As personal injury lawyers may be preparing to file these motions, Stevens stresses that they should look for substantive reasons to dismiss the jury and expedite the trial process beyond simply the fact of a delay. Lawyers should marshal persuasive facts that show why a further delay will be harmful to their client, whether that be because of a lack of retrofitted courtrooms, increased need for expensive care, or their lack of rehab funds. In Belton for example, the plaintiff relied on remarks made by the regional senior justice saying their case would be delayed by close to a year and a half because of the pandemic. Their motion could be less speculative and more concrete in the problem it is seeking to resolve.

To Stevens, these decisions represent acknowledgement from the bench that delays in the civil justice system need to be addressed by creating more efficient trials. The Ontario Attorney General, too, has explored this option, asking key stakeholders for input on whether juries should be removed from civil trials. Stacey says that taken together, personal injury lawyers can look at these decisions and the AG’s explorations as signs that while we may not fully abolish juries in civil cases, the presence of a jury may no longer be a given in certain  civil cases.

“From a purely personal injury perspective, I believe these decisions will give plaintiffs greater access to justice,” Stevens says. “For accident victims, there is so much delay and so many hurdles that plaintiffs have to go through in order to get to the finish line, to get to the courthouse steps.  The ability to simplify the process by removing jury trials and streamlining judge alone trials, will likely create more access for justice for all.