Evidence of Delay is Required on Motions to Strike Jury Notices
Motions to strike Jury Notices due to the alleged delay associated with Jury trials during the pandemic have become common place. In some cases, the Court has struck Jury Notices where there was evidence that the trial could proceed much sooner without a Jury.[1] Generally, the decision to strike a Jury Notice is based on the facts of the case and the circumstances particular to each jurisdiction.[2]
In Sabanadze v. Joseph, 2021 ONSC 6744, the plaintiffs brought a motion to strike a Jury Notice filed by one of the defendants.
The action arose out of a motor vehicle accident involving a Grey Hound bus and a tanker-truck. The matter was set to proceed to a 12-week trial.
The plaintiffs settled the action against a number of the defendants by way of Pierringer agreements and sought to strike the Jury Notice filed by one of the remaining defendants.
The plaintiffs argued that they were prepared to go to trial as soon as possible but that it was unclear when civil jury trials would resume in Ottawa, where the trial was set to be heard. The striking of the Jury Notice, it was argued, would also allow the case to proceed in tranches, with the first two or three weeks of trial proceeding in the following months.
The plaintiffs further argued that the defendants would not participate in meaningful settlement discussions if no trial date had been set.
The defendants argued that the motion to strike the Jury Notice was premature, as the matter had not yet been to a pre-trial and the parties had not yet determined a revised trial length, given the settlement of the matter with many of the defendants.
On the motion, Justice Gomery considered the recent Court of Appeal decision in Louis v. Poitras, where the Court held that delay alone could justify striking a jury notice, particular where the delay erodes the plaintiff’s past income loss claim.
Justice Gomery ultimately held that the motion was premature, given that the length of trial had not yet been determined and the expected evidence at trial had not yet been agreed upon by the parties. Given that these two issues were yet to be determined, it was impossible to assess whether the trial could, in fact, proceed more quickly without a jury.
Although Justice Gomery was sympathetic to the plaintiff’s desire to move forward quickly, she declined to strike the Jury Notice on incomplete information. Justice Gomery dismissed the plaintiff motion, without prejudice to their right to bring a motion to strike the Jury Notice at a later date.
Key takeaways from this decision is that a party seeking to strike a Jury Notice must have specific evidence that a trial without a jury will proceed sooner. The moving party should have evidence on the anticipated length of the trial, the expected evidence at trial, and the likely date of the trial both with and without a jury.
[1] Cave v. Hovsepyan, 2021 ONSC 3386.
[2] Losty v. Reesor, 2021 ONSC 2622