In S.M. v. Longo, 2021 ONSC 1348, the plaintiff moved to strike the jury notice on the basis of delay caused by the pandemic. The motion was dismissed.
The action was commenced in 2014 in Milton. The trial was scheduled to commence on March 22, 2021 in Brampton. No civil jury trials are permitted in Ontario until at least early May 2021. As a result, the plaintiff wanted to proceed with a judge-alone trial.
Justice D. Fitzpatrick held that justice would best be served by placing the action on the October 2021 list for a jury trial. His Honour said that a delay of six months in the overall circumstances of the case is not unconscionable or otherwise sufficient to strike the jury notice.
Justice Fitzpatrick noted that the federal government says that everyone who wants to be vaccinated will have that opportunity by September 2021. Further, the Central West Region has the facilities to safely select juries and conduct jury trials once they are permitted.
His Honour further said: “[c]learly, I do not have the ability to see into the future. I can only act upon the best, current information. That information is that jury trials will be available by October, 2021 based on expected vaccine rollouts and the facilities presently available in this Region”.
The plaintiff’s lawyer advised that he was not available for an October 2021 trial. Justice Fitzpatrick said that it is not unusual for counsel to double book trials and, regardless, any delay arising from plaintiff’s counsel’s lack of availability is borne by the plaintiff.
As a result, the plaintiff’s motion to strike the jury notice was dismissed, without prejudice to this issue being revisited in the event the trial does not proceed in October 2021.