COVID-19 has delayed many civil jury trials, creating concerns of prejudice. In the recent decision of Saadi v. Silva, 2020 ONSC 6700, the plaintiff brought a motion to strike the jury after the trial was adjourned.
In October, a jury was selected for the Saadi v Silva matter. However, after jury selection, Premier Ford announced that Toronto would return to a modified Stage 2. As part of this return, in-person trials were to continue at the discretion of the trial judge. Since in this case, no evidence had been called and no opening statements were made, the jury was discharged. The trial was adjourned to June 2021.
The plaintiff quickly moved to strike the jury notice, stating that there would be prejudice due to the impact of COVID-19 on public health and the justice system. Justice Kimmel dismissed the motion, without prejudice. “Courts have often adopted a ‘wait and see’ approach … to protect the substantive right of the party who wants a jury trial, and only to dismiss the jury if the circumstances at the time warrant it, and not based on anticipated circumstances that may not materialize (see para 18).”
Justice Kimmel noted that the adjournment of this trial would result in some prejudice and inconvenience to the plaintiff. However, the implications of delay must be balanced against the loss of the defendants’ right to a trial by jury. The prejudice to the plaintiff did not justify depriving the defendants of their right to a trial by jury after having conducted their defence based on a jury.
Justice Kimmel seemed confident that June 2021 jury trials would take place, writing that: “… there is a scheduled sitting for civil jury trials in Toronto in June 2021 and there is an infrastructure in place that has already been proven to be successful for enabling jury trials to proceed in Toronto during the COVID-19 pandemic.”
The decision about the importance of jury trials in civil cases is particularly interesting in light of rumblings that Ontario may eliminate civil juries. To learn more, read “Ontario Attorney General seeks input on removing juries form civil trials.”
(This article was originally posted on slaw.ca. heatherdouglaslaw.com)