Fridays With Rogers Partners

At our weekly firm meeting, Angeline Bellehumeur addressed the Divisional Court’s decision in  Louis v Poitras, 2020 ONSC 6907. The defendants appealed the motion judge’s decision to strike a jury notice due to the delay caused by the COVID-19 pandemic.

The decision involves two Ottawa actions related to a motor vehicle accident in May 2013. The actions were ordered to be tried together over 10 weeks beginning on April 20, 2020.

The pandemic resulted in the suspension of regular court operations on March 15, 2020 and the trial did not proceed.

In August 2020, the plaintiff moved to have the jury notices struck and have the actions proceed as a non-jury trial. The motion was granted by Justice Beaudoin. The defendants appealed.

In order for a court to intervene on a decision striking a jury notice, the appellant must show that the discretion of the motion judge was exercised arbitrarily or capriciously, or was based on a wrong or inapplicable principle of law.

The Divisional Court held that Justice Beaudoin’s decision was made arbitrarily. He relied on the general principle that fairness and justice are illusory without proportionate timely and affordable process in Canadian civil justice.

The motion judge did not sufficiently consider evidence explaining the anticipated length of the delay caused by COVID-19, the circumstances that might improve or extend the delay, or the impact striking a jury notice in the specific case would have on the administration of justice. The reasons for granting the motion to strike the jury notices were therefore arbitrary.

The Divisional Court stated:

…the basis upon which a jury notice may be struck, or a jury discharged may include a consideration of whether it is in the interest of the administration of justice that the trial proceed or continue without a jury. It is for the court to control its processes within the parameters set by its constitutional obligations, legislation and the common law. It must do so in a fashion that balances what is practical, given the available resources, facilities and judicial complement, and the requirement that it provide justice between the parties even in times of disruption and uncertainty.

The Divisional Court found that the mere statement of delay or the implications of delays by the motion judge were arbitrary.

If available, a motion judge should considered information related to if and when civil jury trials could be heard. Information on specific circumstances influencing the constantly changing prospect of delay is available in Notices to the Profession, as well as from local judges and other court officials responsible for the organization of the court and its proceedings.

The specific circumstances of the region and of the parties involved may be considered. The Court noted that it is unrealistic to address concerns of delay broadly without consideration of the specific region’s context, such as the varying procedural realities of scheduling trial dates.

The Court stated that the “wait and see” approach does not directly apply, as the motion to strike the jury notices was not advanced due to the complexity of the issues. Although the Court acknowledged that the recent use of the “wait and see” approach demonstrates the court’s flexibility in approaching novel issues presented by the pandemic, the Court chose that whether it is an appropriate approach for the overall administration of justice was not a discussion suitable for this case.

The appeal was granted without prejudice to renew the motion whenever information is available to be considered by the court as to either prejudice to the parties or the overall administration of justice.