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Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed the case of Baker v. Blue Cross, 2021 ONSC 1485. This decision is the most recent in a string of Toronto decisions wherein the Court has considered a motion to strike a jury notice due to delays caused by the pandemic.

This decision sheds light on the evolving list of considerations (such as COVID-19 infection rates, the possibility of broader vaccine rollouts, and the development of new vaccines) that the Court may examine when determining whether to grant a party’s motion to strike a jury notice in Toronto.

While the standstill on jury trials in the Toronto continues, this case provides hope to those parties interested in retaining their right to a trial by jury.


The plaintiff sought to reinstate long-term disability benefits that she had received from the defendant between 2013 and 2016 after suffering a stroke. The defendant stopped paying her benefits in July 2016.

About a year later, in 2017, the plaintiff issued a statement of claim seeking punitive and aggravated damages against Blue Cross. In the spring of 2019, the parties obtained a March 22, 2021 date for a jury trial.

Prior to the trial, the plaintiff was granted leave to bring a motion to strike the jury notice and to have the trial proceed virtually, by judge alone, as scheduled.


In dismissing the plaintiff’s motion, Justice Dow found that the plaintiff had not discharged her onus to show that the trial should proceed at this time without a jury, or that the parties will be better served by discharging the jury.

The trial date of March 22, 2021 was adjourned and the parties were ordered to contact the trial coordinator to determine when a new trial date would be scheduled.


The right of a party to proceed to trial with a jury is a substantive right, not to be interfered without just cause or cogent reasons. The right is qualified, however, and subject to the power of the court to order that the action proceed without a jury.

Pursuant to the Court of Appeal’s decision in Louis v. Poitras, the court examines five factors evaluating whether it should exercise its discretion to interfere with a party’s right to a jury trial and order that a trial proceed by judge alone:

  1. the resources available to the court to outfit its courtrooms to allow for the conduct of jury trials with social distancing;
  2. the local impact of the pandemic, to assess the likely timing for the resumption of jury trials;
  3. the prejudice to the parties that would be caused by delay in adjudication;
  4. the age of the case; and,
  5. the history of adjournments.

Factor 1: Resources Available to the Court

The Court observed that Toronto is well-situated to conduct jury trials. Once the suspension on jury trials is lifted, jury panels can be assembled and civil cases can proceed. Multiple courtrooms have been retrofitted to facilitate jury trials and social distancing.

Civil matters in Toronto are dealt with in a separate building than family and criminal matters. This diminishes the concern that family and criminal matters will take priority over civil matters, as may occur in other jurisdictions when jury trials resume, due to the sharing of the Court’s resources and infrastructure.

Justice Dow found that this factor weighed in favour of the dismissal of the plaintiff’s motion.

Factor 2: Impact of the Pandemic in Toronto on the Resumption of Jury Trials

The Court identified several factors that support or detract from the Toronto region being a place where the delay in resuming jury trials may be shorter or longer than elsewhere in Ontario due to the pandemic.

In Toronto, jury selection can occur offsite and jury trials can resume more quickly than in other parts of the province. In addition, Toronto may receive a greater proportion of vaccines available to the public, and additional vaccines may lead to a quicker reopening.

With that said, Toronto has one of, if not thehighest, COVID-19 infection rates. It is therefore possible that Toronto may be one of the last regions where restrictions are lifted.

On balance, the Court held that the uncertainties involved made this a neutral factor in its analysis.

Factor 3: Prejudice to the Parties

The plaintiff argued that the delay itself was prejudicial, as five years had passed since the plaintiff last received long-term disability benefits.

In response, the defendant noted that they had made an advance payment of eight months of net benefits, totalling over $26,000, to relieve any potential prejudice arising from the delay. Payment was made two days before the motion was heard.

The Court accepted evidence of a senior analyst at the defendant’s company, who concluded that based on medical and surveillance evidence, it was the defendant’s litigation strategy to proceed with a jury.

Overall, the Court concluded that this factor weighed in favour of the dismissal of the plaintiff’s motion.

Factor 4: Age of the Case

The Court rejected the plaintiff’s argument that prejudice arose due the length of time that had passed from when the dispute began and when the trial was set to occur.

While about five years had passed since the defendant stopped paying benefits, Justice Dow identified that the time frames for commencing an action, certifying the action as ready for trial, and scheduling a mutually agreeable trial date are influenced by a party’s behaviour and litigation strategy, and are part of the normal process of ensuring a party is ready for trial.

The Court accepted the defendant’s argument that a judge alone trial may increase the likelihood of a reserve decision and further delay, whereas a jury verdict could be made “in the hours following the trial”. In a judge alone trial, the trial judge may take up to six months to render a decision.  

The Court found that the fourth factor weighed in favour of the dismissal of the plaintiff’s motion.

Factor 5: History of Adjournments

Both parties acknowledged this was the first trial date and the matter had not previously been adjourned.

This factor again factored in favour of the dismissal the plaintiff’s motion.


Based on a balancing of the relevant factors, Justice Dow dismissed the plaintiff’s motion to strike the jury notice. The defendant was awarded partial indemnity costs of $5,900.