‘Wait and see’ approach to civil juries good move for Access to Justice

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The recent trend for civil jury notices to be struck conditionally or provisionally will help move cases along, says Easy Legal Finance President, Larry Herscu.

“Taking a ‘wait and see’ approach is a reasonable compromise given the backlogs caused by COVID-19,” he says. “It’s a growing access to justice issue.”

The Ontario Trial Lawyers Association (OTLA) president tells The Lawyers Daily that “there’s only been one civil jury trial” since the pandemic hit in March 2020. He says the organization is concerned about the backlog of civil jury trials and the impact on access to justice.

“There was a small window in the fall of 2020 where one medical malpractice civil jury trial went forward in October. … That’s the only one, and we’re coming up on 18 months since the pandemic started,” he tells the legal publication, stressing that “hundreds of civil jury trials across Ontario have been adjourned” and OTLA is concerned the delay will continue.

Herscu points to a recent decision from the Superior Court of Justice in London, Ont., where Justice Spencer Nicholson commented on the recent trend in Ontario for jury notices to be struck conditionally or provisionally.

“Essentially, that means if jury cases are being tried when the case is called for trial, it will proceed by jury. But if jury cases still can’t be accommodated at that time, the jury notice is struck, and the trial will proceed by judge alone,” Herscu explains. “By taking a bit of a ‘wait and see’ approach, parties are spared the expense of additional motions and further delays.”

In the decision, Justice Nicholson noted, “there is no question that civil juries are an important part of our legal fabric and the reasons for some litigants preferring to have juries determine their disputes is understandable.”

“However, in the face of COVID-19, legislative guidance on what should happen with jury trials did not come and does not appear on its way. Judges were confronted with delays caused by this once in a lifetime pandemic and the threat of civil jury trials, in an already heavily taxed system, continuing to pile up with no clear end in sight,” Nicholson wrote.

The matter involves a 47-year-old plaintiff who sustained multiple injuries in a 2017 motor vehicle accident, including musculo-ligamentous injuries, myofascial pain syndrome, a concussion that developed into post-concussion syndrome, whiplash and anxiety and depression. 

“The plaintiff also alleges that she has sustained both a past and future income loss. She is working at present but takes the position that she is working modified hours and duties, with a reduction of about one-third of her work hours. She also alleges that a promotion was delayed due to the accident. It is asserted that she has an ongoing annual loss of income, which will be compensated at 70 per cent of gross to the extent that it is incurred prior to trial,” the decision states.

“Accordingly, the plaintiff asserts prejudice results by any delay in the trial,” it continues.

The action has proceeded through the usual procedural steps without excessive delay, with a trial date scheduled for January 10, 2022. However, the plaintiff points to the inability of London to hold civil jury trials because of COVID-19, which has now been extended through to the end of 2021 — and it seems doubtful that civil jury trials will be conducted until well into 2022.

Meanwhile, the defendant argued that decisions striking juries — even provisionally or conditionally — represent inappropriate judicial legislating. In addition, if juries are removed from the civil decision-making process, the defendant argued that the legislature should take that step, not judges.

Justice Nicholson states that “if the jury notice remains in place such that the trial is adjourned and delayed into late 2022 or beyond, then a case that was on track to be determined in a relatively timely fashion, becomes stale. This negatively impacts the other civil cases in the system as well, as civil cases accumulate.”

He states he would prefer to ground his decision on the principle that a court may look beyond the parties’ interests and consider the broader interests of the administration of justice.

“To the extent that another window of opportunity to hear civil matters presents itself in London, it must be taken advantage of so that the pile-up of civil cases does not grow past the point of being manageable. Provisionally striking the jury notice, albeit imperfectly, attempts to address that problem,” Nicholson writes.

In provisionally striking the defendants’ jury notice in this case, Nicholson notes, “civil litigants have been asked to make great sacrifices in these unprecedented times, plaintiffs and defendants alike.” 

“In personal injury cases such as this, plaintiffs, who typically do not have the financial resources to withstand years of litigation, have endured unavoidable delays in having their cases resolved. Defendants have been required to forego their preferred mode of trial to allow these cases to proceed when they can be accommodated.”

Herscu applauds the judge’s focus on the timely administration of justice and finding a way to address the civil docket in the face of continued delays and the priority given to criminal and family matters.

“There has been a growing body of case law developing around taking a ‘wait and see’ approach,’ to allow civil trials to proceed without further delay,” he says. “When you’re injured and working modified hours and reduced pay like the plaintiff in this case, delaying a trial to 2022 or beyond will be a devastating financial hit.”

“Conducting a virtual trial before a judge, for example, will only decrease the growing backlog of trials and increase access to justice for accident victims,” Herscu adds.

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