With the resurgence of COVID 19, the Ontario Superior Court has suspended jury selection in the “hot spots” of Toronto, Ottawa, and Brampton for one month. All settlement conferences will be conducted over Zoom. Whether to continue jury trials in progress will be decided by the trial judge.

In-person non-jury trials and other in-person proceedings (including civil matters) in these courthouses may proceed if they conform to the modified Stage 2 indoor gathering maximum of 10 people in the courtroom. “Efforts should be made to hear matters remotely, wherever possible” said Superior Court Chief Justice Geoffrey Morawetz.

Add this new one-month delay to the previous postponement lasting several months, and the result could be years of delay. Ryan O’Connor, a Toronto lawyer, says: “The week before the State of Emergency was declared in Ontario in mid-March, I appeared in court to obtain trial dates for a lengthy jury trial. The court assigned a trial date nearly two years later, in February 2022 … once the courts reopen, litigants may be waiting 3 or 4 more years for trials to proceed.” Criminal jury trials will take precedence over civil jury trials.

COVID restrictions come at a time when the Ontario government is considering ending civil jury trials, to streamline the system and unblock the logjam of cases.

Other provinces have done this. Some jurisdictions have maintained civil juries only for matters involving community values or a person’s character. Recently the Chief Justice of Canada’s Supreme Court was interviewed on television. When asked about civil juries, he pointed out that, being a Quebec lawyer who started practicing in 1980, he had never encountered one – Quebec eliminated such trials in the 1970’s.

The debate over jury trials in civil proceedings spans 150 years. In Ontario, the issue has been revisited every few decades since the 1960’s.

The Ontario Trial Lawyers Association favours ending civil jury trials for personal injury cases. Many plaintiff law firms have written to support this stance.

Some stakeholders believe that family law and some other civil matters should retain civil jury trials. Omar Ha-Redeye, the executive director of Durham Community Legal Clinic, argues: “If reforms are needed to the civil jury system, a better place to start is with the deductible in personal injury cases. This is the only example in Ontario where civil juries are creating an unnecessary use of judicial resources.”

The defence bar, on the other hand, is lobbying to keep civil trial by jury in Ontario. One stated reason is paragraph 77 of Kapoor v. Kuzmanovski, 2018 ONSC 4770: “The substantive right to a civil trial by a jury has been long recognized. Over time, that right has become an integral part of Ontario’s civil justice system.” (A jury trial is not a constitutional right in civil cases.)

Many observers believe that jury trials tend to favour the insurance companies.

Mr. Justice Osbourne, author of the “Report of Inquiry into Motor Vehicle Accident Compensation in Ontario”, noted “… insurers in most negligence actions require their counsel to deliver a jury notice” and that this defence strategy would “… increase the risk to which the plaintiff is exposed.”

Justice Frederick Myers in Mandel v Fakhim wrote, “While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land … If a judge can find facts that are inconsistent with the jury’s findings and that have legal effect, what justification is there to summon people away from their lives to compel them to attend court? I am already being paid to do the same job anyway.”

There is also concern about whether a jury trial can be fairly conducted via Zoom. While the technology exists, many stakeholders wonder whether fairness is possible. A distracted juror surfing the web while supposedly listening to already complicated expert medical evidence is a stark possibility.