By Kirsten McMahon

There is a strong case for abolishing juries in civil trials in light of COVID-19 court closures and the ensuing backlogs and delays, says Easy Legal Group of Companies President and CEO Larry Herscu.

“There’s a small but growing body of case law where judges have struck juries to avoid further pandemic-related delay. At the same time, the province is consulting with stakeholders on a proposed legislative amendment that would eliminate some or all civil jury trials. It’s hard to imagine things going back to ‘normal,’” he says.

Herscu points to a Law Times report about four recent decisions that have addressed the dismissal of juries in light of the COVID-19 pandemic, arguably putting the province “on a trajectory that ends with a reduced role for juries in the civil litigation process,” the article notes.

In Belton v. Spencer, 2020 ONSC 5327, the plaintiff in a personal injury matter moved for an order striking the defendant’s civil jury notice and directing that the action be heard by judge alone.

“The grounds for the motion are that because of COVID-19, there are serious concerns that if this action proceeds before a jury, the trial will be delayed by one year — or possibly as long as 18 months — and justice would be better served by striking out the jury notice,” the September 2020 decision states.

Justice Elizabeth Sheard stated the action — stemming from a 2010 horse-kicking incident where the plaintiff suffered significant physical and cognitive injuries — was long overdue for trial.

“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. If not tried then, the record shows that it will likely be over a year before the matter can return before a civil jury,” the judge wrote.

“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,” the judge concluded, striking the defendant’s jury notice to ensure an earlier, more efficient and affordable trial.

In Louis v. Poitras, 2020 ONSC 5301, Justice Robert Beaudoin notes the “extraordinary circumstances” of COVID-19 “present unique challenges to court operations and to the exercise of judicial discretion in the application of the relevant case law.”

“Overnight, the court system was hurled into the twenty-first century,” Beaudoin wrote in a decision striking a jury notice in a personal injury matter. “Past practices were jettisoned; new efficiencies are being explored; and there is a growing realization that the administration of justice will, at least in some ways, remain forever changed.”

The judge concluded that none of the parties to these actions has an unfettered right to a jury trial, and parties should not be required to wait for a policy decision from the legislature.

“I decline to take a ‘wait and see’ approach nor am I prepared to revisit the issue. I am satisfied that these are appropriate cases in which to exercise the discretion currently conferred upon me to strike a jury notice,” Beaudoin wrote. “I find that justice to the parties will be better served by these actions proceeding to trial, in a timely manner, before a judge alone.”

Herscu says there’s a belief that measures and processes put in place to maintain the administration of justice during the pandemic may lead to more permanent change, noting Ontario is one of the few Canadian jurisdictions to allow civil jury trials for most matters.

“Earlier this year, the province’s attorney general solicited feedback on a proposed legislative amendment that would eliminate some or all civil jury trials,” he says.

Herscu says the pandemic has exacerbated delays in a system that was already struggling with efficiency and lack of resources.

“This move from the province coupled with emerging case law could accelerate civil justice reforms,” Herscu says. “COVID-19 has forced courts, the bar and litigants to adopt new technologies, and in many cases, we see a tremendous improvement.

“The big question is when courts fully open up, and things go back to normal, will they stick with it?” he says. “It’ll be hard to argue against efficiency and improved access to justice.”

The Easy Legal Group of Companies is a Canadian litigation financing firm. Its lending solutions service the personal injury sector including plaintiffs with pending injury claims, their legal representatives and the service providers involved in their cases. The firm is registered to conduct business in Ontario, B.C., Alberta and the Atlantic provinces. Services are delivered through three brands: Easy Legal Finance Inc., Rhino Legal Finance and Seahold Legal Finance.