Superior Court declines to adopt wait-and-see approach with regard to jury trials

The court should weigh the right to a jury against the injustice inherent in a delayed trial in proceedings which involve lengthy delay and which face the possibility for uncertain and inordinate further delay if not reached in upcoming sittings.

In De Dieu v. Taylor, 2021 ONSC 3654, the proceedings, which arose due to a motor vehicle accident in September 2013, were marked by significant delay. The statement of claim was issued in April 2015, and the trial record was served in May 2018, but the matter was struck from the trial list, not due to the parties’ fault. The court conducted the pretrial in a companion action in December 2019, during which time this matter was restored to the trial list. The companion action was later settled. The court held the pretrial in this matter in October 2020.

This matter, which had been restored to the January 2021 trial sittings list, was adjourned in November 2020 from the January 2021 sittings, given that the court was refraining from hearing jury trials in January 2021 due to the COVID-19 pandemic. The court rescheduled the trial for the May 2021 blitz list and scheduled a further pretrial on May 20, 2021. However, the trial would not be called before June 1, 2021.

The plaintiff, who wanted the trial to proceed without further delay, filed a motion to strike the jury notice in light of the pandemic. The defendant, on the other hand, called for the application of a wait-and-see approach and sought to adjourn the matter to the January 2022 sittings so that it could be heard by a jury.

The Superior Court of Justice of Ontario ruled that the matter should remain on the list for the upcoming sittings, which would not be called before June 1, 2021. If the matter is reached in such sittings, the court will strike the jury notice and will move forward with a judge-alone trial. If not, the court will schedule the matter on the earliest convenient trial date.

The court further said that, if it can accommodate the trial on the scheduled date via a jury, then it will proceed with a jury trial. If not, the court will strike the jury notice and move forward with a judge-alone trial.

The court adopted the approach taken in Mohan v Howard, 2021 ONSC 2064 and in Roszczka v. Tiwari, 2021 ONSC 2372, two cases which involved similar features and available arguments. The court ruled in those cases that the trial should not be delayed by waiting for the return of jury trials, but if for any reason a jury trial is available when the trial is called, the case will move forward with a jury. This approach aims to prevent further pandemic-related delay in proceeding with the trial while safeguarding the statutory and substantive right to a trial by jury.

The court held that the present circumstances do not support the holding of a jury trial and may not do so for some time. On the other hand, if the proceedings move forward via a judge-alone trial, the court can likely hear the matter via videoconference in June.

“Before the pandemic, the delays litigants experienced in civil matters in this jurisdiction were significant and should not be normalized or considered acceptable,” wrote Justice Roger Chown for the court. “The pandemic is not the fault of either party or the court, but it has compounded the problem of delayed justice.”