In Losty v. Reesor, 2021 ONSC 2622, the court denied the plaintiffs’ motion to strike a jury notice in a Toronto action.
The action arose out of a motor vehicle accident in August 2014. At trial scheduling court in November 2019, a three week jury trial was scheduled for the May 2021 sittings. Due to the COVID pandemic, the earliest possible date upon which jury trials can resume is in July 2021.
The plaintiffs argued that, due to the passage of time, they are considerably prejudiced and that further prejudice will be caused by delaying the trial. Moreover, they stated that there will be a significantly reduced loss of income due to the statutory provision which provides for recovery of 70% of lost income prior to trial, as opposed to 100% of lost income post-trial.
Justice Diamond indicated that each decision regarding striking a jury notice needs to be based on its own facts. Each decision may vary by jurisdiction.
Regarding the plaintiffs’ argument that the main plaintiff will lose income if the trial is adjourned, Justice Diamond noted that there is a dispute over whether there is any income loss at all.
Further, Justice Diamond indicated that there was previous delay in the action, which cannot be laid at the feet of the defendants.
Justice Diamond stated that the Toronto region is aiming to have significant judicial resources available in anticipation of jury trials resuming in the October 2021 sittings. Although another lockdown is currently in place due to the pandemic’s “third wave”, Justice Diamond said that there are objective factors, such as the present availability and distribution of vaccines, which lead to the reasonable assumption that jury trials may resume in 2021 or perhaps by early 2022.
As a result, Justice Diamond held that striking the jury notice is not a just or necessary result in the circumstances of the case. The plaintiffs’ motion was dismissed, without prejudice to the plaintiffs’ right to renew the motion in the event circumstances change and the court remains unable to offer a jury trial at the time of any new rescheduled trial date.