Directive to take a break from civil juries needed as delays mount

By Tony Poland, LegalMatters Staff • With court cases continuing to be delayed due to coronavirus restrictions it is incumbent upon the legal system to address the issue of civil juries, says Barrie-area litigator Steve Rastin.

“There are tens of thousands of cases in Ontario marching toward trial that have jury notices. In the current system, every one of those cases would have to proceed with an individual motion to strike the jury,” says Rastin, managing partner with Rastin Law. “Cases are stacking up like dominoes. Perhaps a broad-based policy directive providing guidance would be helpful.” 

He tells LegalMattersCanada.ca that there have been several recent cases demonstrating that “courts are still conflicted and struggling with how to handle civil jury trials in the age of COVID.”

“The courts are realizing these are unprecedented times,” Rastin says. “It would be in the interests of justice to look at something that’s going to streamline the process to help us get our cases to trial. As statesman William Ewart Gladstone said, ‘Justice delayed is justice denied.’” 

Opinions vary

He said opinions among judges have varied, referencing Jiang v. Toronto Transit Commission as an example.

In dismissing a motion to strike the jury in a slip and fall case, Justice Darla A. Wilson noted Toronto has “courtrooms that have been retrofitted to accommodate the social distancing that is required to conduct jury trials.”

“We also are able to conduct jury selection at an off-site premise which has been created to allow for social distancing; it has been approved by the appropriate authorities to ensure it is safe for choosing juries,” she writes. “Further, counsel can decide what witnesses can give their evidence virtually and what evidence can be filed electronically and what evidence may be necessary to have heard in the courtroom.”

However, Rastin noted the grim predictions for escalating COVID-19 cases make jury trials riskier.

“They started doing jury trials in Toronto in October and stopped because they were having problems. They resumed before the chief justice interrupted them again,” he says. “Isn’t it time to recognize that if we’re not supposed to have our family over for Thanksgiving then current attempts to restart the jury system before a vaccine is readily available are not in the best interest of the public?”

Cases heard on Zoom

Rastin acknowledges that “courts have aggressively brought in software, hardware, and data filing systems” to keep files moving, with some cases heard on Zoom.

“The court is expending considerable resources to do virtual trials,” he says. “The challenge is, how do you plug juries into the virtual trial session? It’s one thing If you are doing a virtual trial and you’ve got the lawyers, the judge and the witnesses. But if you include jurors, that’s a bigger complication.”

Rastin points to two cases in his jurisdiction, MacDougall v. Sisley and Piette v. Haskins, where the same judge dismissed motions to strike, preferring to take a “wait and see” approach.

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“I agree that timely justice is an important objective for our court system. However, we do not live in a perfect world. The unfortunate reality is that the COVID-19 pandemic has hit all aspects of our society very hard. This includes the justice system,” writes Justice Michael K. McKelvey in Piette. “I believe that by the early months of 2021 we will have a better idea of whether the civil trial protocol is working and whether courts have been able to accommodate the most urgent civil jury trials as well as whether it seems likely that the May 2021 Sittings will proceed with jury trials.

“If it appears that there will be an inordinate delay in trying civil jury cases, then it would be appropriate to reconsider whether that delay merits striking a jury notice in this or other cases,” he adds.

Plaintiffs waiting in limbo

However, Rastin says more delays will further hurt plaintiffs who have been waiting in limbo for their case to be heard.

“They’ve already been victimized once by being in an accident,” he says. “Now they are being victimized again because of the pressures put on their lawsuit due to the COVID crisis.

“There is a significant degree of uncertainty out there about how to get our cases tried in a timely fashion,” he adds. “This is all in the backdrop of the Ontario attorney general’s ongoing analysis about whether to get rid of civil juries altogether.”

Rastin says he has been approached by insurance companies looking to use the delay to their advantage.

“I have clients who are under tremendous pressure to settle their cases for less than they are worth,” he says. “You can’t blame the insurance company for the pandemic, but you can blame them for taking advantage of the situation to try and leverage a settlement.”

He says there was some encouraging news in Belton v. Spencer, which saw the Ontario Court of Appeal dismiss an application to stay a ruling to strike the jury in a personal injury case.

In his ruling Justice David Brown writes “the parties are ready for trial and have been for some time.”

“COVID-19 came out of left-field and upset the trial court’s scheduling apple cart. But the Central South Region can make a judge available this coming Monday to try this personal injury case,” he states. “If not tried then, the record shows that it will likely be over a year before the matter can return before a civil jury. That would be an unconscionable wait. The qualified right to a civil jury trial cannot dictate such a result, as it would be completely contrary to the interests of justice.”

Appeal court decision

Rastin says while the appeal court didn’t go so far as to decide whether the jury should be struck in the case, it did conclude that since the judge had granted the plaintiff’s motion and was ready to proceed to trial, it would not give the defendant the relief it sought.

He says the ruling is worth noting.

 “As we enter this next stage of the pandemic we must decide as a court system if we are going to be guided by the rationale in MacDougall and Piette or by the analysis in Belton,” he says. “If the court system is going to get through this, we would benefit from looking at Belton.”

Even if Plaintiffs are successful in striking a jury, they are likely to face an appeal of that decision, Rastin observes. 

“That is what happened in Louis v. Poitras when the Divisional Court restored the jury notice and ordered $46,000 in costs paid by the plaintiff who had won the motion to strike the jury at first instance,” he says.  “Ordering massive costs awards against accident victims who are striving to get their day in Court is not in the interest of justice and does not inspire confidence in the system.

“The bottom line is the plaintiff’s bar is struggling with respect of how to deal with this given that there is not a consistent message from the courts.”