Jury Trial: Can delay now become the basis for striking a jury notice?

In the recent Court of Appeal of Ontario decision in Louis v. Poitras, 2021 ONCA 49 (ontariocourts.ca), the Court overturned the Divisional Court’s decision and restored the motion judge’s order striking the jury.  The decision in important not only for the Court of Appeal’s somewhat blunt comments vis a vis intermediate courts of appeals court and their role in case management but also for comments on whether delay in obtaining a trial date is an appropriate basis to strike a jury notice.

The Court of Appeal held:

[21]       First, the court found that delay alone is not enough to strike a jury notice. According to the Divisional Court, there must also be proof of some additional prejudice before a court is justified in striking a jury notice. Thus, the court concluded, at para. 24, that in these cases, there was “no just cause or cogent reason to interfere with the statutory right of the defendants to seek trial by jury.”  I disagree.

[22]       The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time of the motion. Accordingly, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits:” Louis v. Poitras, 2020 ONCA 815, at para. 33.

23]       This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.

If delay is to be a valid basis for striking the jury notice, it appears that the court will consider the length of the time from the date of the accident (I believe the court would examine whether the delay is due to complexity of the case or delay caused by one or more of the parties) and the delay in obtaining a jury trial date (court resources, etc.).  It goes without saying that each case will be different and the facts of each case will impact whether a jury notice is struck.

Although a right to a jury remains the law of Ontario, it is becoming increasingly clear that the court will be expect to look beyond the parties’ interests and consider the broader interests of the administration of justice.


Tullio A. D'Angela

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