In Kromah, et al. v. Lepore, et al., 2022 ONSC 4830, the plaintiffs sought to conditionally strike a jury notice in a civil action commenced in London, Ontario. The trial was scheduled to commence in September 2022.
Justice Nicholson recognized the backlog of criminal and family matters in all regions, which take precedence over civil matters. In addition, there is a significant shortage of judges in the Southwest Region.
However, Justice Nicholson noted that, since there is no current prohibition on jury trials, if a judge were to become available, a civil jury trial could be called. His Honour further indicated that a civil jury trial always takes precedence over a civil non-jury trial of comparable length.
Moreover, Justice Nicholson said that the idea of conducting a trial in “tranches” (over different time periods) is easier said than done in London.
Previous cases which struck jury notices during the pandemic were found to be outdated. Most of those cases were decided when jury trials were not being held.
In denying the plaintiffs’ motion, Justice Nicholson stated:
Striking the jury notice will have very little, if any, appreciable bearing on the likelihood that this four- or five-week civil trial will be reached this September. Such a trial will be called if, and only if, there is a judge available to preside over a trial of that length. If a judge were to become available, any remaining civil jury case on the running list would take precedence. In that event, striking the jury notice in this case, would actually prejudice the Plaintiff.
This decision may cause parties to think twice before bringing a motion to strike a jury notice for pandemic-related reasons or court backlog.