Tierney Stauffer LLP Lawyers

In previous blog posts, we explained the changes Ontario’s courts have implemented during the COVID-19 pandemic. Some of these changes have significantly affected the rights of claimants to have the action managed in the way they desire. Jury trials are no exception; civil jury trials have been suspended in Ontario due to the COVID-19 pandemic.

In a personal injury case, parties have the right to elect that their case is heard by a jury. If the other party does not want to have a jury trial, they can challenge the jury notice by making an application to the court.

In a recent case, Heustis v. Brown, the plaintiffs asked the court to strike a jury notice that had been filed before the COVID-19 pandemic. The plaintiffs were not challenging the jury notice because they did not want a jury notice per se, but because the large backlog of jury cases waiting to be heard because of the COVID-19 pandemic had delayed their case.  

Plaintiffs Seek to Strike Jury Notice Due to Pandemic Delays

On April 22, 2017, Robert Heustis was injured in a motor vehicle accident. His wife, tragically, did not survive the accident. The defendant, Brenda Brown, filed a jury notice, preserving her right to have the trial heard by a jury. Notably, the notice had been filed prior to the pandemic drastically altered the litigation process in Ontario and across the country.

The plaintiffs asked the court to strike the jury notice given the potential delays they would face in waiting for a jury trial due to the ongoing health restrictions which particularly impacted the ability to facilitate the jury selection process and to hold a jury trial. The defendant disagreed, claiming that there had not been a “material change in circumstances” and that it would not be fair to the defendants for the court to strike the jury notice.

The Test for Striking a Jury Notice in Ontario

Here, the plaintiffs had to prove that there were “features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit[ed] the discharge of the jury”. The overriding test is whether the party who wants the jury notice struck “has shown that justice to the parties will be better served by the discharge of the jury”.

The court noted that the accident had occurred over four years ago and there was no way to determine when a jury trial could be heard. Furthermore, the plaintiff was 79 years old at the time of the accident (83 years old at the time the application was heard). Given the plaintiff’s age, there was a compelling reason to ensure that the case was heard as soon as possible so he could have access to justice.

The defendant argued that she would be prejudiced if the jury notice was struck because she had planned her litigation strategy on the assumption that the case would be heard before a jury. The court did not find this argument compelling, stating that it had not been given any evidence as to how or why the defendant’s strategy would be different or could not be tailored to a judge-only trial.

Court Strikes Jury Notice, Citing “Unprecedented Circumstances”

The court found in the plaintiff’s favour and struck the jury notice. As the court stated, “[i]n this case, in the unprecedented circumstances that exist in this region, the plaintiff’s right to access to justice must override the defendant’s right to a trial by jury”. However, the court ordered that the jury notice was only struck conditionally. If a jury trial was available at the time the matter was called for trial, the jury notice would be reinstated automatically.

Jury Trials in Ontario During the COVID-19 Pandemic

As noted above, civil jury trials have been suspended Ontario due to the COVID-19 pandemic, with the exact date for resumption largely depending on infection rates in each of the various regions. In this case, which occurred in the Central East Region, no civil jury trials had yet taken place by the date the application was heard. Court rules relating to the use of jury trials vary by region and continue to fluctuate during the ongoing COVID-19 pandemic. As the decision of whether to elect a trial by jury is a strategic consideration, speak with a skilled personal injury lawyer to understand your rights and make an informed decision regarding how your trial is handled.

Skilled Personal Injury Lawyers Serving Eastern Ontario and North Bay

At Tierney Stauffer LLP, our experienced personal injury lawyers have the advocacy skills and resources to adapt to our changing legal landscape. Though your “day in court” might look a little different during the COVID-19 pandemic, our lawyers are diligently following changes to courtroom protocol and are well-positioned to tackle your personal injury claim in court, whatever that might look like in these unprecedented times.

We recognize that no two claims are the same, which is why we give each client the personalized attention needed to bring about the best possible resolution. Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.


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Ottawa, Ontario
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Arnprior, Ontario
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