Jury trials have been a casualty during the Covid-19 shutdowns because the courts were willing to strike juries during the time that juries couldn’t be assembled following post-pandemic restrictions on gatherings, etc.
Indeed, the courts were flooded with motions to strike juries, and the rulings varied. One approach, however, that gained popularity was to take a “wait and see approach.” In other words, the court wouldn’t strike the jury at the conclusion of the motion, but instead they would allow the jury to remain until the case inched closer to the scheduled trial at which time the decision would be made depending on the situation prevailing at that future point in time. This was dubbed the “wait-and-see” approach.
Juries, however, can be struck out for other reasons: the most notable being if the civil claim is against a municipality. The Courts of Justice Act R.S.O. 1990, c. C.43 prevents these (and a myriad of other) claims from being heard by a jury.
The interesting twist in this case was whether a “wait and see” approach could be used in a civil claim where a municipality was only one of a number of defendants, and there was a good chance that the municipality was going to settle their exposure and be removed from the claim: of course once removed, the remaining claim would not involve any municipality (and hence the jury could remain, in theory).
In this case, one of the defendants, relying on the Covid-19 line of “wait and see” jury rulings, lobbied for the “wait and see” approach to be used in the context of a single municipal defendant who could, sometime in the future, be released from the claim. The court, however, rejected this argument outright. The Court concluded that once the claim was commenced against a municipality, there was no jurisdiction to have the claim adjudicated before a jury. Just because parties flouted the law by serving a jury notice, no right to a jury ever existed and it cannot be gained after the fact. With no such right, applying a “wait and see” approach had no application. The jury was struck (and it was immaterial when the trial would be heard: imminently or remotely).
Dhaliwal et al. v. Gill et al., 2022 ONSC 1445
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1445/2022onsc1445.html