On October 1, 2020, the Court of Appeal for Ontario released its decision in Belton v. Spencer, 2020 ONCA 623. The decision is the first by Ontario’s highest court to weigh in on the prospect of transforming civil jury trials to judge-alone trials due to limitations imposed by the ongoing COVID-19 pandemic.
The plaintiff sued the defendant after allegedly being kicked by her horse in 2010. Both parties requested a jury and by November of 2019, the action had been scheduled for a six-week trial in Hamilton during the October 2020 sittings. In June 2020, after learning that jury trials would likely be delayed by 12-18 months due to COIVD-19, the plaintiff moved to strike the jury notices.
After hearing arguments in writing, the motion judge granted the plaintiff’s request on Sept. 4, 2020. Quoting the famous legal aphorism “justice delayed is justice denied,” the motion judge held that since the action had been ongoing for eight years and concerned decade-old events, it would be unfair to force the plaintiff to wait another 12-18 months just to have the case tried by a jury. The motion judge’s decision was grounded in the seminal decision of Hryniak v. Mauldin, 2014 SCC 7, which emphasized the need for a “culture shift” in the Canadian legal system toward ensuring access to civil justice. The trial was scheduled to begin without a jury on Oct. 5, 2020.
The tripartite test for a stay pending appeal
The defendant immediately appealed the motion judge’s decision and brought an urgent motion to stay her order, which was heard by a single judge of the Court of Appeal. The Court applied the three-part test for obtaining a stay pending appeal from RJR-MacDonald Inc. v. Canada (Attorney General),  1 SCR 311:
- Is there a serious question to be tried (i.e. to be determined on the appeal);
- Will the moving party suffer irreparable harm if the stay is not granted; and
- Does the balance of convenience favour granting the stay.
At the first stage, the Court characterized the substantive appeal as “weak,” noting the right to a jury trial in a civil action is not absolute and that the Courts of Justice Act and case law give judges broad discretion to strike juries if necessary in the interests of justice. The Court also noted that an order striking out a jury notice was “probably” interlocutory, requiring an appeal to the Divisional Court with leave, rather than the Court of Appeal.
The Court went on to find that in the absence of any specific litigation disadvantage to proceeding before a judge alone, the defendant had not demonstrated any irreparable harm that would result from the trial taking place before her substantive appeal was heard. Finally, the court held that the balance of convenience overwhelmingly favoured not granting a stay, due to the COVID-19 situation in the Province and the need to try the action in question without further “unconscionable” delay.
Strictly speaking, the Court has not yet determined the substantive appeal against the order striking the jury notice. Nonetheless, the Court’s comments in the first stage of the stay motion suggest there may be legitimate reasons to strike jury notices and try actions by judge alone in regions of the Province where the pandemic has rendered civil jury trials impractical.
The Ontario Ministry of the Attorney General is currently gathering feedback from the public and members of the profession on the future of the civil jury system. This recent Court of Appeal decision may fuel further speculation that the role of civil juries in Ontario will be subject to change, even after the pandemic.