The Latest Denial of a Plaintiff Motion to Strike the Jury:
After a series of early successes by Plaintiffs seeking to strike the jury (Louis v. Poitras, 2020 ONSC 5301, Coban v. Declare, 2020 ONSC 5580, and Belton v. Spencer, 2020 ONCA 623, as examples), the recent decision of Justice Kimmel in Saadi v. Silva, 2020 ONSC 6700, is another in a growing list of cases where such requests have been denied. A noteworthy aspect of Saadi is that the case was scheduled to be tried in October 2020. However, and unlike any other case this author has seen to date, Justice Kimmel forced an adjournment of that scheduled trial date to preserve the defendant’s right to a jury.
Factual Background:
Ms. Saadi was in a car accident on December 18, 2014. Her claim was issued on April 21, 2016. After pretrial, the case was spoken to at a trial scheduling court in February 2019, where it was listed on the civil jury sittings in Toronto for October 2020. The recent return of Toronto to Phase II restrictions because of COVID-19 cancelled civil jury trials in Toronto for the time being prompting the plaintiff’s lawyer to bring a motion to strike the jury and have the case tried by a judge sitting alone. Further chronological context, and important in Justice Kimmel’s decision, included the fact there are civil jury sittings scheduled for June 2021.
Justice Kimmel noted that the importance of a party’s right to a jury trial and that it is not to be interfered with lightly. Unlike other decisions in this regard, she noted that the “wait and see” approach should be adopted to ensure that a jury is dismissed only when warranted, and not on the basis of circumstances that may not materialize.
Ms. Saadi argued that any delay would prejudice her, both financially and through further required preparation of her case (through updated experts reports, further medical records, etc.). Due to what Justice Kimmel found as a lack of specific evidence on these points, it does not seem as though she placed a great deal of weight on these arguments. That said, she accepted that an adjournment of any trial is prejudicial and costly.
The defendants argued that they tied their litigation strategy to a jury trial because this was a chronic pain case, and juries deal with chronic pain cases differently than judges do. Relying on Ismail v. Fleming, 2018 ONSC 6780, Justice Kimmel appeared to have accepted this as a legitimate litigation strategy.
As far as balancing the rights and interests of the parties, and the interests of justice in this particular case, Justice Kimmel found that while Ms. Saadi would suffer some prejudice and inconvenience, the delay between October 2020 and June 2021 was not so great as to override the defendant’s right to a jury trial in these circumstances. She listed the case as having priority on the June 2021 trial sittings list. She specifically noted that this was not a “situation of indeterminate delay”, and that Toronto had the infrastructure to run civil jury trials in the pandemic (unlike other jurisdictions) so that the trial of June 2021 had a reasonable likelihood of proceeding. Finally, the motion was dismissed without prejudice to Ms. Saadi raising it again if the trial could not run with a jury in June 2021.