Belton v. Spencer, 2020 ONSC 5327

• James Page


• 10 Sep 2020

Full Decision

HAMILTON JURY STRUCK BECAUSE OF COVID-19

In Belton v. Spencer, 2020 ONSC 5327 Justice Sheard recently struck a jury notice for an upcoming trial in Hamilton. OTLA President, Laura Hillyer, and I are plaintiff’s counsel in that matter. Because of my involvement in the motion, I will share what I think are some important keys to success (which you may find helpful) in addition to providing a summary of the decision.

The relevant facts are as follows:

• The accident happened 10 years ago
• The Defendant filed a jury notice 8 years ago
• There was a fixed date of trial that was supposed to start October 5, 2020
• As everyone practicing in Ontario knows, on March 17, 2020 the Superior Court suspended all in-person court operations.
• On June 25, 2020 the Chief Justice of Ontario announced a phased return to in-person hearings.
• As of the decision date, the Hamilton Superior Court was not operating at full capacity.
• At a June case conference, the Regional Senior Justice estimated that the action would be delayed by 1 to 1.5 years if it continued as a jury matter
• At the same case conference, the RSJ estimated that there would be a trial in late Fall if the action was a non-jury matter
• The Plaintiff suffered significant physical and cognitive injuries in the accident and was maintaining both a past and future income loss claim
• The parties are ready for trial and but for the pandemic the matter would be proceeding in October 2020

While it was true that the Defendant filed a jury notice, the right to a jury is not absolute. According to s. 108(3) of the Courts of Justice Act, the court, on a motion, may order that the issues of fact be tried, or damages assessed, or both, without a jury. Furthermore, rule 47.02 of the Rules of Civil Procedure says that a motion to strike a jury may be made on the ground that the action ought to be tried without a jury.

In her decision, Justice Sheard outlined the following important general principles when interpreting s. 108 of the Courts of Justice Act and 47.02 of the Rules:

• The object of a civil trial is to justice between the parties
• The ultimate question to ask is: will justice better be served by dismissing the jury or retaining the jury?
• While a right to a jury trial is fundamental, it is not absolute and sometimes it must yield to practicality
• The Rules of Civil Procedure were not formulated with a pandemic in mind and therefore must be looked at in a purposive manner. They must be read in a way that is consistent with their ultimate objective. They must interpreted liberally to secure the just, most expeditious and least expensive determination on its merits.
• A judge may strike a jury notice even before the trial has begun if there is no advantage to beginning the trial with the jury because the situation makes it apparent that the case should not be tried before a jury
• While a “wait and see” approach is generally preferred, that approach is unsuitable when it will cause the very delay the plaintiff seeks to avoid

Justice Sheard was obviously seriously concerned about how the virus will impact both the jury pool and the individual jury members. Will there be enough jurors to meet the demand?  Certain prospective jurors may be particularly susceptible to COVID-19. Prospective jurors may be caring for or sharing a “bubble” with people at high risk. They may be parents supervising their children who are not in school because of the virus. What if a juror becomes exposed to COVID-19? If that happens, will there be a mistrial?  Will jurors and court staff have to be quarantined?  Will the parties and their lawyers have to be quarantined?

Her Honour was also concerned about the obvious backlog that has been created by the virus. Citing Justice Williams in Klassen v. Klassen, 2020 ONSC 4835, she noted that the pandemic has shut down Ontario non-virtual courtrooms for almost 4 months leading to great uncertainty about when jury trials will be scheduled.

Justice Sheard also took into consideration that the accident was a decade ago and a trial should be sooner rather than later.

The Defendant argued that the Plaintiff caused 5 years of delay and therefore should not be able to use delay to deprive the Defendant to her substantive right to a jury. However, Her Honour found there was no evidence that the Plaintiff was engaging in delay.

Ultimately Justice Sheard found that the right to a jury must give way to ensure an earlier and more efficient trial.

With that said, based on recent comments from defence counsel, the Defendant has submitted an application to appeal the decision. I will keep OTLA updated of any important developments.

For those OTLA members out there who are thinking about moving to strike a jury notice because of COVID-19-related delay, I hope you don’t mind me sharing some of my insights. In my humble opinion, I think you should give serious consideration to doing the following:

• Emphasize the decision of Justice Myers in MacLeod v. Canadian Road Management Co.  There are some great general principles in that case that will be helpful to you in making your arguments about delay (thanks to Alan Raklin’s creative arguments).
• Find actual evidence that there will be delay in your case if it continues as a jury matter. Don’t just rely upon common sense inferences. In our case, we had the estimates provided to us by the RSJ. This was key!  If you have a pre-trial or case conference approaching, ask the Judge about anticipated timelines.
• If applicable, emphasize any future treatment needs, past expenses that have been incurred, and any past and future income loss claims to show that delay will have a continuing financial impact on your client.
• Obtain an affidavit directly from your client about the prejudice he or she will suffer because of delay
• Focus on how the health and safety of the jury is in serious jeopardy

If fellow OTLA members are interested in a copy of the factum, please email James Page.