In Sanson v. Paterson/Security National Insurance Company, 2022 ONSC 276, the plaintiff brought a motion to strike the defendant’s jury notice on a conditional basis. The matter was scheduled to proceed to trial on January 17, 2022.
The decision of Justice Dow, released on January 12, 2022, engages in a review and application of the relevant factors to consider when striking a party’s jury notice in light of current COVID restrictions. Justice Dow also provided a sharp reminder of the importance of adhering to proper procedure on motions.
Counsel for the defendant, Paterson, wished to make submission on the motion. However, the same counsel had also sworn an affidavit that his client intended to rely on as evidence on the motion. Justice Dow did not allow counsel to make submissions, and commented at para 7:
It has been a standard practice in the Superior Court of Justice that it is improper for a deponent to act as counsel and rely on their affidavit evidence.
Making an exception to that practice (while it can and does occur, usually with self-represented litigants or consent matters) should only occur in the rarest of circumstances.
Accordingly, it is important to remember that where one of the lawyers for a party provides affidavit evidence for use on a motion or other hearing, that lawyer typically will not be permitted to make submissions at the hearing. The same individual cannot be both counsel and a witness.
Factors to be Considered when Striking a Jury Notice
Justice Dow considered case law decided both pre- and post-pandemic in coming to his decision.
His Honour noted that the 2006 Ontario Court of Appeal decision in Cowles v. Balac et. al. stands for the proposition that “[t]he right of a party to proceed to trial with a jury is a ‘substantive right and should not be interfered with without just cause or cogent reasons’”[para 16]. Justice Dow, citing himself in the 2016 Ontario Superior Court case, Ma v. RBC Life Insurance Co., noted that “it will only be in the rarest of situations and clearest of cases where a party can successfully argue a jury notice should be struck in advance of trial”.
The above pre-COVID cases cited here lean towards preservation of the jury, except in rare situations. The post-COVID cases open the door to striking juries in light of the extenuating circumstances involving court closures and restrictions on gathering.
Justice Dow cited two 2021 cases in his analysis: Louis v. Poitras and Johnson v. Brielmayer. Justice Dow relied on Louis v. Poitras in arriving at the conclusions that decisions regarding juries are best made on a local basis, rather than a provincial basis, and that the substantive right to have a jury trial is “subject to the power of the court to order that the action proceed without a jury”.
Justice Dow commented that Johnson v. Brielmayer contains a useful summary of the factors to consider in striking a jury notice. The factors are as follows:
- the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing;
- the local impact of the pandemic, to assess the likely timing for the resumption of jury trials;
- the prejudice to the parties that would be caused by delay in adjudication;
- the age of the case; and
- the history of adjournments.
Justice Dow then applied each of these factors to the case at hand.
With regard to resources, Justice Dow noted that Toronto courtrooms have been retrofitted for social distancing of jury members. This would be a point in favour of preserving the jury.
In addressing local impact, Justice Dow noted that although cases were on the rise at the time of writing, so were vaccination rates and booster shots. This was considered to be neither a point in favour or against striking the jury.
With regard to prejudice to the plaintiff, her allegations regarding past loss of income were considered. Evidence regarding loss of income was included as part of the plaintiff’s motion record and was considered by Justice Dow.
Interestingly, His Honour considered the statutory limitation on recovery of past loss of income to 70% of gross income. The delay of trial means a lengthening of the period considered for past loss of income and a decrease in the period considered for future loss of income at a rate of 100% of gross income.
Justice Dow considered this to be prejudicial, and His Honour indicated that it was open to the defendant to provide an undertaking that the statutory reduction would not apply past the original scheduled date for trial. However, the defendant did not give this undertaking in this case. Prejudice to the plaintiff was accordingly a point in favour of striking the jury notice.
The date of loss in this matter was October 19, 2012, which means that this matter was approaching its tenth anniversary from the cause of action. The matter was first certified ready for trial in 2016. The age of the matter was a point in favour of striking the jury notice.
The trial of this matter had already been adjourned three times previously. None of the adjournments were at the request of the plaintiff. This was a point in favour of striking the jury notice.
Ultimately, the relief requested by the plaintiff was a request for a conditional discharge of the jury. This relief was granted. Justice Dow clarified the meaning of “conditional discharge” at para 27:
That is, when this case is called for trial, if juries are not being impaneled, it shall proceed without a jury, and, if necessary, virtually.
Costs were awarded to plaintiff.
What we can take away from this decision is that whether or not a jury will be struck is a very fact-driven analysis. The pre-pandemic case law favouring preservation of juries will be weighed against the specific situation as it exists at the time the decision is made. Pandemic-related circumstances can constitute the “rarest of situations” in which it is appropriate to strike a party’s jury notice.
However, COVID restrictions are not, by themselves, necessarily enough to warrant striking a jury notice. The onus is on the party seeking to strike the jury to overcome the substantive and statutory right to a jury.
For defence counsel seeking to resist such a motion, it would be prudent to address each of the factors set out in Johnson v. Brielmayer. In the context of COVID, an older matter that has already had multiple adjournments will be more likely to have a jury struck.
With regard to prejudice to the plaintiff, it may be worthwhile for defence counsel to weigh the benefits and drawbacks of taking measures that may be seen to reduce any prejudice to the plaintiff in favour of preserving the jury notice. The example provided in this decision is an undertaking to limit the period considered for past loss of income.
Lastly, strict adherence to procedural rules surrounding affidavits and court-imposed deadlines is the safest route to ensuring the hearing of a motion proceeds as planned.