Jury Notice Struck in Toronto Action

There have been several motions to strike jury notices in Toronto due to delay related to the COVID-19 pandemic. The decisions have gone both ways.

In Cave v. Hovsepyan, 2021 ONSC 3386, the plaintiff was successful in striking a jury notice for a trial scheduled to commence on May 31, 2021.

The action arose out of a motor vehicle accident in 2015. The trial was initially scheduled to proceed in June 2020 but it was adjourned due to the pandemic.

Justice Chalmers stated that, although the Toronto region has introduced measures to conduct civil jury trials during the pandemic, the local impact of the pandemic has prevented civil jury trials (except for one) from taking place.

His Honour noted that the most recent Notice to the Profession suspends civil jury trials in Toronto to at least July 5, 2021. He said that there is no way to predict whether jury trials will be available at that time. The trial coordinator advised Justice Chalmers that, if the jury notice is struck, the trial could proceed virtually as a judge-alone trial on May 31, 2021.

In some of the previous decisions where jury notices were not struck, there was evidence of an advance payment made by the defendant or evidence that the defendant adopted a particular litigation strategy that was reliant on having a jury trial. There was no such evidence in the motion at hand.

Justice Chalmers stated that the plaintiff has established that he will be prejudiced if the jury notice is not struck and concluded:  “I am satisfied that at this stage in the pandemic, and in the unique circumstances of this case, the jury must be struck”.