Trial by Jury and COVID-19

In mid-January 2021, the heads of the Ontario Superior Court of Justice and the Ontario Court of Justice issued statements urging Ontario’s courts to limit in-person proceedings due to the realities of COVID-19. Indeed, even new jury trials and jury selection were suspended.

Suffice to say that COVID-19 has created an unprecedented crisis for the Ontario civil justice system. Courtrooms are increasingly unavailable and family and criminal cases take precedence over civil cases in trial courts. There has also been talk about the complete elimination of civil jury trials.

It’s uncertain what permanent changes COVID-19 will bring unto Ontario’s courts but important decisions regarding its impacts are already being made. Louis v. Poitras, 2021 ONCA 49, for example, dealt with the striking of a jury in the personal injury world given COVID delays and access to justice. Below are the most important details of this particular case and what it might mean for the future.

The Case

The plaintiffs in this case were involved in a motor vehicle accident that occurred in Ottawa on May 9, 2013. Both the tort and accident benefits actions were to be tried together over the course of 10 weeks and beginning on April 20, 2020. The trial would be by jury and, as such, jury notices had been filed by the defendants.  

However, the COVID-19 pandemic resulted in the suspension of regular court proceedings and the trial did not take place as scheduled. As such, the plaintiffs moved to strike the jury notices for both the tort and accident benefits actions. On September 9, 2020, the motion judge granted that movement, but the defendants appealed the motion to the Divisional Court.

Divisional Court Decision

The Divisional Court agreed with the defendants and reinstated the jury notices in both actions. The Divisional Court reasoned that the motion judge made an arbitrary decision because it was based solely on the delay caused by COVID-19, which, in and of itself, does not preclude the prejudice required to strike a jury. Specifically, the Divisional Court stated:

“The decision of the motion judge to strike the jury notice was attributed, by him, solely to the presence of delay without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice. There was nothing to which he referred that considered the particular circumstances. In the absence of such information, the decision was arbitrary. The recognition of the presence of delay, without more, is not enough.”

Despite this decision, the plaintiff’s moved to stay this order and, from there, the case was heard at the Ontario Court of Appeal.

Ontario Court of Appeal Decision

At the Ontario Court of Appeal, the stay was granted. Justice C. William Hourigan stated that the Divisional Court misapprehended the relevant facts in three important ways.

First, Justice Hourigan disagreed with the Divisional Court’s reasoning that a delay does not preclude the evidence of prejudice required to strike a jury. While the Divisional Court required additional proof of prejudice in order to strike a jury, Justice Hourigan upheld that prejudice arises from the delay alone.

Second, Justice Hourigan found that the Divisional Court undermined the local court’s discretionary case management decisions. He stated that the Divisional Court hindered the administration of justice by expanding its scope of influence beyond the parties involved and into the context of civil justice during the pandemic. In so doing, the Divisional Court failed to recognize that the local court is in a better position to understand the realities of court resources.

Lastly, Justice Hourigan criticized the Divisional Court’s comparison of this case with that of Higashi v. Chiarot, 2020 ONSC 5523. In Higashi, the motion judge based his decision to strike the jury on his own inquiries into the status of the civil list. Although the Divisional Court believed that that motion judge had sufficient evidence on which to base his decision, they argued that the motion judge in Louis v. Poitras made an arbitrary decision. Justice Hourigan found that the motion judge’s decision in this case was based on the information collected in Higashi and, therefore, was not arbitrary at all.


Justice Hourigan’s decision was considered a groundbreaking one because it was the first appeal decision that dealt with the impact of COVID-19 on a motion to strike a jury notice. But perhaps the most important outcome of this case was the statement that a delay in and of itself can cause prejudice and justify a striking. This is consistent with Rule 1.04(1) of the Rules of Civil Procedure, which guarantee that the courts will provide “the most expeditious… determination of every civil proceeding on its merits”.

Has Your Day in Court Been Delayed?

There’s no question that COVID-19 has caused an unprecedented crisis, especially in the Ontario civil justice system. As an unprecedented situation, the ways in which the court’s will move forward on various issues are yet to be determined.

But regardless of the pandemic, every Ontarian has the right to the proper administration of justice. If you feel that your case has been affected by the current context, don’t let it slip through the cracks. Contact Sharma Law today and we can explore your options together.

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