What Happens to Previously Scheduled Civil Jury Trials During COVID-19?
In a recent British Columbia case, the court refused to adjourn a previously scheduled jury trial due to COVID-19, allowing the trial instead to proceed without a jury.
[Please note: In Ontario, jury selection and jury trials are suspended until September 2020 at the earliest.]
The victim was a 52-year-old woman who was allegedly injured in a motor vehicle collision on December 25, 2015. Medical reports stated that she had suffered leg and back injuries as well as depression and post-traumatic stress disorder as a result of the accident. The victim had been employed until July 2016 when she alleged she had to stop working due to her injuries and ongoing pain. She had not worked since that time.
The driver denied liability.
The victim’s claim had been filed in 2017 and all examinations for discovery were completed in 2019.
A notice of trial had been filed on February 21, 2019 for the trial set for July 20, 2020. All parties had filed notices of trial by jury.
The victim sought leave to extend the time to apply to strike the notice requiring trial by jury filed on March 11, 2019 and for an order striking the jury notice.
The driver filed a cross-application seeking an order that the trial be adjourned so that his right to a jury trial may be preserved.
Issues and COVID-19 Context
On March 18, 2020, in response to the COVID-19 pandemic and the provincial state of emergency, the Chief Justice of B.C. announced that all regular court operations would be suspended until further notice.
In June, however, courts proceeded to carefully resume operations in a phased way. A June 3, 2020 notice relating to jury trials stated:
All civil jury selections are suspended and jury trials are cancelled up to and including September 7, 2020 everywhere in the province. Until court registries reopen for in-person services, parties will not be able to submit jury fees. Applications to abridge timelines to pay jury fees will be considered once registries reopen for in-person services.
Since resumption of jury selections must precede resumption of jury trials, jury trials may be further delayed. For civil matters where a jury notice has been filed and served, if all parties consent to proceeding by judge alone, they may seek such an order at a TMC or a JMC. A party wishing to strike a jury notice may bring an application through the Application by Written Submissions process set out in COVID-19 Notice #14. A party wishing to oppose an application to strike can respond through the Application by Written Submissions process and request adjournment of the trial. For more information, see COVID-19 Notice #26.
As a result, unless all parties agree to proceed by judge alone, the trial would be cancelled.
The issue was therefore whether the jury notice should be struck, allowing the trial to proceed in July 2020 as scheduled. The court noted that, if it was not, the trial scheduling calendar showed that there were only two dates available for trials, both of which were in January 2022.
The court began by stating:
“There has been such an obvious change in circumstances since the parties elected to proceed to trial by judge and jury that little authority is required to persuade me that an extension of time is appropriate.”
As a result, the court granted the application for extension of time to apply to strike the jury notice.
Regarding the application to strike the jury notice, the court explained that rule 12–6(5) of the Supreme Court Civil Rules (the “Rules”) allows a party to apply to have a matter heard by judge alone. Specifically, subrule 12-6(5)(a)(iii) allows a court to refuse a jury trial where “the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action”.
The court then stated:
“The Rules were not formulated with a pandemic in mind. They must be looked at in a purposive manner in the present circumstances.
The purpose must be consistent with the ultimate object of the rules of a “just, speedy and inexpensive determination of a proceeding on its merits”. The analysis seems to me to be similar to many others the court embarks on, and incorporates factors of balancing prejudice to achieve a just result.”
The court noted that while a jury trial is not a right, its importance in civil cases has been highlighted in many court decisions. However, this importance to a defendant does not outweigh all other considerations.
Ultimately, the court found that the extra time and cost of a two-year adjournment would prejudice the victim.
As a result, the court granted the application to strike the jury notice and denied the application for an adjournment.
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