Whether a civil trial should proceed with or without a jury has been a hot-button issue for the plaintiff personal injury bar and the insurance defence bar during the COVID-19 pandemic. As recently acknowledged by the Court of Appeal in Louis v. Poitras, “the civil justice system in Ontario faces an unprecedented crisis”, which is pretty strong language for a group more known for its conservative and measured comments.
During a pandemic, if it is unsafe for people to congregate together, at what point should a civil trial proceed, by judge alone, notwithstanding the existence of a jury notice that has been filed by one of the parties?
In Louis v. Poitras, the Ontario Court of Appeal endorsed the need for creativity, upholding the decision of an Ottawa-based motion judge, which struck jury notices for a motor vehicle personal injury trial that the defence fully expected would be tried by a jury. The motion judge was responding to the crisis created by a global pandemic, and the implications of that on the justice system’s ability to deliver safe and timely justice. Using very clear language, the Court of Appeal also reversed the strong decision of the Divisional Court, which had held, on the appeal before it, that, while the motion judge had the discretion to make such an order, the decision was not made on a sufficient evidentiary basis and was therefore arbitrary. The Court of Appeal held that, in fact, the motion judge had an abundance of evidence to justify the order; it was instead the Divisional Court’s decision that was unsupportable.
The underlying date of loss was May 9, 2013. A ten-week jury trial was scheduled to start April 20, 2020. But for the pandemic, the trial would have proceeded with a jury, starting in April 2020. It did not proceed. In July, the plaintiff successfully moved to strike the jury notices and obtained an order that the trial would proceed by judge alone in three-week blocks of time, as judge-alone trials of three weeks or less were available in that region. At the time of the motion, litigants in Ottawa had been advised that civil jury trials would not proceed until January 2021, at the earliest. Ottawa had only a limited number of courtrooms that had been retrofitted with Plexiglas dividers, and there was no plan finalized to accommodate jury trials.
On appeal, the Divisional Court’s opposing approach was summarized by this passage:
The decision of the motion judge to strike the jury notice was attributed, by him, solely to the presence of delay without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice. There was nothing to which he referred that considered the particular circumstances. In the absence of such information, the decision was arbitrary. The recognition of the presence of delay, without more, is not enough.
The motion judge’s decision and that of the Divisional Court could not be more at odds, leading Hourigan J.A. to note that the two decisions where “like ships passing in the night”.
This is not an issue that will be going away any time soon. The Court of Appeal has clarified the need for flexibility by offering the following guidance, which most certainly is meant to apply to any discussion about striking a jury, not only in the context of COVID-19, but also in the context of any regional pressures faced by a jurisdiction in which a case is to be tried. The guidance to the province includes these points:
- There is no single province-wide answer to the problems we face in delivering timely civil justice. Different approaches do not reflect a conflict in the case law, but rather the due exercise of judicial discretion informed by differing local circumstances.
- The substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.
- A judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial.
- Local conditions will inform the choice of effective solutions.
- There ought to be consistency in the exercise of discretion across the province, even while responding to local conditions.
- Appellate courts should not lightly second-guess discretionary decisions properly made, and there is a limited scope of review to do so. The court re-emphasized this notion, by referencing its own decision in Cowles v. Balac.
- Given the guidance from the Supreme Court of Canada in Hryniak v. Mauldin - that a culture shift is required to preserve our civil justice system - delay should not be expected or tolerated, for, when it is, it leads to complacency that offends the very directives offered by the Supreme Court.
The Court of Appeal decision was just released January 25, 2021, so it remains too early to say whether leave to appeal to the Supreme Court of Canada will be sought, but there can be no doubt that there will be clear repercussions flowing from the Court of Appeal decision, given its emphasis on creativity, the need to ensure timely justice, the goal of avoiding complacency, and the increased weight given to the exercise of discretion exercised based on local knowledge and conditions.