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CIVIL PROCEDURE - Jury notice - Setting aside or striking out

Thursday, March 25, 2021 @ 6:25 AM  


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Motion by the plaintiff HK for an order striking HK’s civil jury notice and directing the trial to proceed by judge alone. In July 2011, the defendant TB was convicted of charges relating to the sexual assault of HK. In this action, HK was seeking damages caused by the sexual assault. The assaults on HK for which TB was convicted occurred between 2006 and 2010, while HK was a minor. The action was commenced in November 2018. In November 2019, HK filed a jury notice. Because of the COVID-19 pandemic, the jury trial set to begin in November 2020 could not proceed. The defendants did not agree to proceed on that date by judge alone and the action was put over to the jury trial list for the sittings commencing Feb. 8, 2021. However, all jury trials had since been suspended until May 2021 at the earliest. If HK’s jury notice was struck, the action could remain on the Feb. 8, 2021 non-jury trial list. HK submitted that unless the jury notice was struck, the trial would be delayed by an unknown length of time and delaying the trial was prejudicial to HK. HK further submitted that there was no evidence that the defendants ever communicated a wish to have the action tried by jury. The defendants filed no responding materials on the motion.

HELD: Motion allowed. The COVID-19 pandemic and its impact on the trial of this action was a substantial and unexpected change in circumstances. It was in the interests of justice that HK be granted leave to bring this motion. It was unrealistic to expect a return to normal operation of the courts soon. If this matter was to proceed by way of jury trial, there would be a significant and unknown delay in obtaining a trial date. HK had suffered, and would continue to suffer, real and actual prejudice and harm, both psychological and emotional, if the trial was again adjourned. HK established that justice to the parties would be better served by the discharge of the jury.

H.K. v. T.B., [2021] O.J. No. 420, Ontario Superior Court of Justice, E.C. Sheard J., February 1, 2021. Digest No. TLD-March222021007