Court strikes jury notice because delay because of COVID-19 will prejudice personal injury plaintiff

Parties will be lucky to have jury trial held before end of summer of 2022, court notes

Court strikes jury notice because delay because of COVID-19 will prejudice personal injury plaintiff

Courts have needed to adapt proceedings in light of the COVID-19 pandemic, particularly personal injury and disability trials, which have primarily been based on paper documents and in-person attendances, a firm’s blog post has said.

“While the COVID pandemic has certainly impacted on Courts and caused new challenges, it has also brought with it a greater willingness to move forwards with technology and innovative solutions,” said a blog post on the website of Lerners LLP.

The blog post called attention to a case in which the Superior Court of Justice of Ontario allowed a personal injury claim to move forward to trial via Zoom to prevent further delay to an injured individual.

In Debra Sweetman v. David Kowalczyk et al, 2021 ONSC 2131, the defendants’ motor vehicle hit the plaintiff while she was riding her bicycle in 2017. The plaintiff, who initiated an action for damages for her injuries, initially filed a jury notice, but later sought to strike the jury notice completely or conditionally and sought leave to do so, on the basis of the delay associated with holding a jury trial during the pandemic and the financial effects of such.

The Ontario Superior Court of Justice ruled that the plaintiff met the onus to show that the jury notice should be struck and that the action should be either put in the running trial list or put in the fall civil trial sittings. The court included the condition that if, when the matter is called, there are no civil jury trials running, the matter will instead proceed via a judge-alone trial. But if civil jury trials are running when the case is called to trial, the matter will move forward before a jury.

The court found that there would be significant delay if the jury notice was not struck, that the plaintiff who was clearly entitled to compensation would be prejudiced by such delay and that the court should not be complacent in relation to the delay.

The court acknowledged that the defendants claimed that they would experience prejudice in the event of a judge-alone trial, but found that the plaintiff’s prejudice if the jury notice was not struck would outweigh the defendants’ prejudice. The court noted that the plaintiff did not oppose a jury trial if it would not cause delay and that the defendants would prefer that the jury notice be conditionally, not completely, struck.

The evidence pointed toward a determination that significant delay would occur if the matter moved forward via a jury, even though such delay could not be exactly quantified, the court said. If the matter proceeded through a jury trial, the parties would be fortunate to have the trial take place before the end of the summer of 2022, but if the matter proceeded through a judge-alone trial, the trial may take place by the summer of 2021 or by the end of this year.

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