In January 2021, the Ontario Court of Appeal released Louis v Poitras,[1] the now definitive case on striking civil jury trials during the COVID-19 pandemic. Poitras was the culmination of the onslaught of motions to strike civil juries due to prejudice arising from pandemic-related delay. In a concise and strong decision, the Ontario Court of Appeal restored a motion judge’s order to strike the jury due to delay caused by the pandemic. Acknowledging the “unprecedented crisis” faced by the justice system, the Court of Appeal recalled the Supreme Court of Canada’s call for a cultural shift to preserve civil justice in its seminal decision Hryniak v Mauldin.[2] Five years before COVID-19 broke out, the Court in Hryniak noted that undue process, expense, and delay can hinder access to just and fair adjudication and established a new regime for summary judgment motions. Poitras was a warning and a reminder that deference to local judges and creative solutions to preserving civil justice are essential in the face of the ongoing pandemic.
As we enter 2022, some parties have had their trials adjourned multiple times due to the changing COVID-19 situation, and judges continue to be faced with the decision of how best to deliver just and fair adjudication of civil matters. One year after Poitras was decided we are taking a look back at this important decision and some of the motions that have been decided since.
Background Facts
This litigation arose out of a motor vehicle accident that occurred in Ottawa on May 9, 2013. The resulting tort and accident benefits actions were ordered to be tried together in a 10-week jury trial beginning April 20, 2020. On March 15, 2020, regular court proceedings were suspended as a result of COVID-19 and the trials did not proceed. In July 2020, the plaintiffs successfully moved for an order striking the jury notice. The judge also ordered that the trials would proceed in three-week tranches beginning February 2021. At the time, civil jury trials were not being scheduled.
The Ontario Court of Appeal set out the test for whether to strike a jury notice in Cowles v Balac:[3]
A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.
While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.[4]
On appeal to the Divisional Court, the Court applied the test and found that the motion judge’s decision was arbitrary. Proof of additional prejudice, beyond mere delay, was necessary to justify striking a jury notice. The plaintiffs appealed.
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