In Pietsch et al v. Lyons, 2020 ONSC 7628, the plaintiffs sought to strike a jury notice in a motor vehicle accident case due to complexity and due to delay arising from the COVID-19 pandemic and related prejudice.
The case was previously scheduled to be tried on three occasions, but could not proceed. Two of the adjournments were due to a lack of judicial resources. The trial is now scheduled for September 2021 in London.
Justice Rady did not agree that the jury notice should be struck due to complexity. Even though the case was previously scheduled for trial, this was the first occasion the plaintiffs had raised complexity. This significantly undermined their argument.
Justice Rady did not rule on the merits of the complexity argument. Her Honour stated that trials are dynamic processes. There are occasions during a trial when it becomes clear that the issues are more or less complicated than was anticipated. The trial judge has discretion to strike the jury notice as the evidence unfolds or at the outset of trial.
Regarding the argument of pandemic-related delay, Justice Rady noted that an allegation of delay alone has been held to be an insufficient basis on which to strike a jury notice. Her Honour stated that much of the plaintiffs’ argument rested on conjecture about the state of the trial list, court facilities, and the allocation of resources. There was no evidence regarding a backlog of jury trials, nor was it clear that a non-jury case would likely be heard before a jury trial.
Moreover, a recent communication from the Local Administrative Judge indicated that a number of courtrooms have been or will be modified to abide by COVID protocols.
Justice Rady indicated that much can happen between now and next fall, making even current information subject to change and the “wait and see” approach the most suitable.
In addition, the alleged prejudice was reduced by the following factors: the trial judge’s discretion to modify the prejudgment interest rate; the receipt of income replacement benefits by the lead plaintiff; the fact that the yearly increase to the deductible is matched or offset by an increase to the cap on non-pecuniary general damages; and the fact that the deductible will be a non-issue if the plaintiffs prevail on their theory of damages.
As a result, the plaintiffs’ motion to strike the jury notice was dismissed as premature, without prejudice to it being renewed at a later date.