Rolley v. MacDonell, 2018 ONSC 508 (CanLII)

Counsel must be aware of the severe consequences of failing to accurately estimate the time required for Trial.    

Date Heard: December 21 & 22, 2017 | Full Decision [PDF]

A jury Trial arising from a motor vehicle accident that occurred on January 10, 2012 commenced on November 21, 2017 before Justice Corthorn. The Trial was scheduled for four weeks based on time estimates made by counsel at the Pre-Trial Conference; however, by December 15, 2017, the Plaintiffs’ counsel had not yet called 2/3 of their witnesses. The Trial was scheduled to resume 44 days later on January 29, 2018.  On December 21-22, 2017, Plaintiffs’ counsel brought a motion pursuant to section 108(3) of the Courts of Justice Act to strike the Defendants’ Jury Notice, discharge the jury, and have the Trial continue before Justice Corthorn, alone.

The Defendants’ position was that the right to a jury Trial is a substantive right and if taken away from a party, said relief ought to be sufficiently justified. They further argued that the Plaintiffs were not prejudiced by the delay in the Trial and that there were no legal, factual, or evidentiary issues or any other factors that make the determination of the issues in this case so complex that they are beyond the jury’s abilities.

Justice Corthorn was left to determine whether the Plaintiffs had sufficiently substantiated that “justice to the parties would be better served” by striking the Jury Notice. The seminal Ontario Court of Appeal decision, Cowles v. Balac, set out the test to determine whether a Jury Notice shall be struck. At paragraph 37 of that case, it stated:

  1. The factors to be considered include the legal and/or factual issues to be resolved, the evidence at trial, and the conduct of the trial; and
  2. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.

Justice Corthorn found that the delay in the Trial constituted sufficient grounds to grant the Plaintiffs’ relief sought. She noted that the gap of approximately two months between the competing examinations of neuropsychologists, which were critical in the case at bar given the contentious causation dispute between the parties, was problematic. She worried about the evidence of the Defendants’ neuropsychologist being fresher in the minds of the jurors than the evidence of the Plaintiffs’ expert neuropsychologist and lay witnesses and the primary Plaintiff himself. In fact, she worried that the approximately three months between the examinations of the primary Plaintiff and his wife and the anticipated jury deliberation would become problematic given the jury’s anticipated challenges in considering the substance of the evidence and the credibility of the aforementioned witnesses. Justice Corthorn held that this delay may, as Plaintiffs’ counsel submitted, prejudice the jury’s reasoning process and the jury’s ability to fulfill its role. Moreover, this prejudice could not be avoided by the mechanisms suggested by the Defendants’ counsel, including note-taking, an elaborate charge to the jury, and audio recording of evidence available to the jury for playback.

At paragraph one of her decision, Justice Corthorn summarized her opinion with respect to counsel providing appropriate consideration for the estimated length of Trial:

Scheduling civil jury trials requires consideration of the estimated length of time of the trial, the judicial resources from which to assign a trial judge, and the availability of jury courtrooms in which to conduct the trial. It is the responsibility of counsel for the parties to provide reasonably accurate estimates of trial time when a trial date is set. If the length of the trial is significantly underestimated, the consequences to the parties may be very serious.

Justice Corthorn provided additional commentary with respect to her dismay that it has become common for counsel to underestimate the amount of time required for Trial. In fact, she says stated that the estimates have consistently “been off by a number of weeks”. She recommended that “Counsel must take very seriously and apply themselves much more diligently to the task of estimating trial time”. She further commented that “The consequences of making an error when estimating trial time are serious and the lives of numerous people are affected by such an error”, including the jury, the jury’s family members, the jury’s employers and colleagues, and litigants in other actions whose matters (i.e. Trials, Pre-Trial Conferences, Case Management meetings, etc.) were required to be adjourned.

We, as counsel, must heed Justice Corthorn’s advice and instructions and be alert to the consequences of failing to accurately estimate the time required for Trial. This case serves as a relevant example of the severe impact of those miscalculations. Justice Corthorn, noted, however, that she did not intend “to establish a marker of any kind”. She remarked:

The impact of delay on the determination of how justice may be better served must be determined on a case-by-case basis. In some cases, a delay of less than six weeks may be sufficient to support an order that the jury notice be struck. It will be incumbent on the parties to address the delay encountered in the context of each case.


Read the full decision [PDF]
Written by

Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is the Founder and Principal Lawyer at Glowinsky Law in Toronto, ON.