Pandemic Restrictions Causes Jury to be Struck so Toronto Trial Could Proceed on January 17, 2022. The Plaintiff sought and obtained an order striking the jury. Applying the Johnson v. Brielmayer, 2021 ONSC 1245, five part test, the court concluded as follows:
a) TEST 1: the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing. In Toronto, this is not a problem because there is a lot of court space and resources to conduct a safe and socially distanced jury trial;
b) TEST 2: the local impact of the pandemic, to assess the likely timing for the resumption of jury trials. In Toronto, the pandemic status is still not good yet, and it remains rather uncertain when Jury trials will resume;
c) TEST 3: the prejudice to the parties that would be caused by delay in adjudication. The Plaintiff made out a case of prejudice because it has been more than five years since the main action was certified ready for trial, the relied upon CPP disability payments were soon coming to an end, income replacement benefits had not been paid since February 28, 2018, and because of Section 267.5 of the Insurance Act, R.S.O. 1990 c. I.8, the Plaintiff is restricted to recovering past loss of income at 70% of gross income (substantively less than 100%of gross for future loss of income), which isn’t trivial given the indicators that the Plaintiff earned a six figure income prior to the subject accident;
d) TEST 4: the age of the case. The case was already 10 years old from the date of the subject accident, and certified ready for trial for the past five (5) years, with two failed mediations and five failed pre-trial conferences. There was nothing left to do but to ensure that the parties had their day in court; and
e) TEST 5: the history of adjournments. The trial was adjourned four times already, all at the behest of the defence. No more adjournments were warranted.
Sanson v Paterson/Security National Insurance Company, 2022 ONSC 276
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc276/2022onsc276.html