Francisco v. Li, 2021 ONSC 1032

Full Decision

Plaintiff successful in striking Defendant’s jury notice in Central East Region.

This motion to strike the defendant’s jury notice due to delays caused by the COVID-19 pandemic was brought pursuant to r. 47.02 of the Rules of Civil Procedure.

The motor vehicle collision giving rise to the action occurred on August 8, 2013. The Statement of Claim was issued on April 10, 2015 and the Statement of Defence and Jury Notice were served on May 22, 2015. The action was set down for trial in October 2017 in Toronto, and thereafter transferred from Toronto to Newmarket. Following a pre-trial in August 2019, the matter was placed on the May 2020 Trial Sittings list.

As a result of suspensions of all in-person court operations in March 2020 due to the global pandemic, the trial was adjourned to be heard during the November 2020 Trial Sittings. Unfortunately, the November 2020 Trial Sittings were also cancelled due to the pandemic.

In support of striking the jury notice, the Plaintiff submitted the ongoing adjournment of her trial was causing her prejudice. For example, the Plaintiff obtained multiple expert reports in anticipation of May 2020, and the longer she had to wait for trial, the more likely she would need to incur additional costs to have the reports updated. The Plaintiff also submitted the delay was eroding her claim for past income loss / loss of earning capacity. Pursuant to s. 267.5(1)2 and 267.5(1)3 of the Insurance Act, 30% of all income loss suffered before the trial of an action is unrecoverable.

In opposition, the Defendant argued the right to a jury trial is a substantive right that should not be interfered with lightly. The Defendant also argued that the Plaintiff did not offer specific evidence of how much longer it would take to obtain a jury trial in Newmarket as compared to a judge alone trial. The Defendants advocated for a “wait and see” approach and if it became obvious that the resumption of jury trials would be significantly delayed, then the Plaintiff could bring her motion again.

In deciding the motion, Justice Casullo considered the recent Court of Appeal decision of Louis v. Poitras, 2021 ONCA 49 wherein the unanimous panel noted that there was no “one size fits all” related to when jury notices should be struck and that local conditions would impact the choice of effective solutions.

Justice Casullo noted that “while there is concrete evidence of financial loss to the Plaintiff the longer it takes to reach trial, post-Louis I need not base my decision on prejudice alone”. As Brown J.A. held in the plaintiff’s stay motion: “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”

Her Honour made enquiries of Central East’s Regional Senior Judge, as well as the triage judge in charge of civil litigation and their message was unequivocal: “judges should assume that civil jury trials will not be resuming until November 2021, and even that date was optimistic. “Whereas, a judge-alone trial could be accommodated well prior to November 2021 depending on availability of counsel. Her Honour went on to note that but for COVID-19, the trial would have been heard in May 2020. The trial had now been adjourned twice and it was patently obvious that the resumption of civil jury trials in Central East Region would be significantly delayed and if the jury notice was not struck in this case the Plaintiff’s matter may not be heard until 2022. Accordingly, the Plaintiff was granted leave to strike the jury notice.

Written by

As a personal injury lawyer, Susan is passionate about and dedicated to obtaining fair compensation for injured victims. She knows firsthand the legal process can be complicated to navigate and uses a positive and compassionate approach when assisting her clients.

Following her call to the Bar in 2012, Susan has limited her practice exclusively to the area of personal injury. She frequently appears before the Superior Court of Justice and has successfully represented clients at arbitration before the Financial Services Commission of Ontario.

Susan is active in her community and can provide legal services in Punjabi.