In Louis v. Poitras, the Ontario Court of Appeal considered the fundamental changes that are being proposed for the civil justice system. As a result of the COVID-19 pandemic, trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution.
The 10-week jury trial in this case was supposed to have commenced on April 20, 2020. The COVID-19 pandemic did not allow for this to happen.
In July of 2020, the Plaintiff moved for an order striking the jury notices in both the tort and accident benefits actions, which the motion judge granted.
At this time, civil jury trials were not being scheduled in Ottawa, but judge-alone trials of three-weeks or less were available within the following six months. Consequently, the motion judge ordered the trials to proceed in three-week tranches, beginning in February 2021.
The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it relied solely on the presence of delay and lacked sufficient evidence of actual prejudice to the parties.
The Divisional Court
The Divisional Court made the following three arguments in deciding that the motion judge erred in their decision to strike the jury notices:
1. The Divisional Court found that delay was not enough of a reason to strike a jury notice and there needed to be additional proof of prejudice to the parties.
2. The Divisional Court found that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.
3. The Divisional Court compared the case to others where the pandemic was considered in the context of a motion to strike a jury notice. It concluded that while the courts in those cases were justified in striking a jury notice, there was an insufficient evidentiary basis here.
The Appeal – Key Takeaways
Justice Hourigan noted that the substantive right to a 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.
While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial.
The case of Kostopoulos v. Jesshope developed the test for appellate court review. This case stated that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.”
In Justice Hourigan’s view, the findings of the Divisional Court were erroneous and reflect a fundamental misunderstanding of the role of appellate courts in considering appeals from orders to strike jury notices.
Justice Hourigan addressed the three arguments put forth by the Divisional Court as follows:
1. The accident in this case occurred over seven years ago and at the time of the motion there was no indication of when a civil jury trial might be held in Ottawa. Accordingly, the motion judge found that the real and substantial prejudice arose from the reason of the delay.
Justice Hourigan stated that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”
2. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation.
An appeal court must respect the reasonable exercise of discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.
3. The Divisional Court distinguished other decisions regarding striking jury notices on the basis that in those cases, the motion judges had evidence regarding the particular circumstances of the local civil list such as directives issued by the court and information provided to the court by the Regional Senior Judge.
The motion judge’s reasons show that he undertook a detailed analysis of Ottawa’s situation and reached his own conclusion regarding the status of civil jury trials in the city. A formal notice in Ottawa stated that civil jury trials would not proceed until at least January 2021. Further, only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time of the motion, and no plan had been finalized to accommodate jury trials. Further, the conversion of a jury assembly room into a jury deliberation room in the Ottawa courthouse would permit only a single jury trial to proceed at any given time.
This proves that the motion judge turned his mind to the local conditions and made an unquestionable finding that it was unknown when or how a jury trial might be heard in these matters.
Justice Hourigan concluded that the motion judge was correct in striking the jury notices given the totality of the circumstances.