CIVIL PROCEDURE - Jury trials - Jury notice - Setting aside or striking out

Motion by the plaintiff Miller for an order striking the defendant Panahi’s jury notice. Ontario was in the grips of a third wave of the COVID-19 pandemic. This matter arose out of a collision that took place in June 2017. Miller, who was driving a motorcycle, was injured. His efforts to return to work as a firefighter were not successful. The policy limits of $65,000 for medical and rehabilitation benefits under Miller’s accident benefits claim would soon be exhausted. Miller brought the motion with a view to having the matter tried, judge-alone, during the Central East Region’s Spring Sittings, which would commence on May 17, 2021. As Miller had set the action down for trial, leave of the court was required. Miller took the position that there was a real and substantial prejudice inherent in waiting for a jury trial. Panahi took the position that there was insufficient evidence of prejudice that would justify interfering with his substantive right to a trial by jury.

HELD: Motion allowed. The magnitude and duration of the pandemic represented a substantial and unexpected change in circumstances. Leave was granted to Miller. The return of civil jury trials in Central East was fast becoming an elusive spectre. The practical reality was that Miller faced a wait of at least one year, and possibly two, if the jury notice was not struck. On the other hand, if the jury notice was struck, his matter could be tried appreciably sooner than 2022. The jury notice was struck.

Miller v. Panahi, [2021] O.J. No. 1976, Ontario Superior Court of Justice, A. Casullo J., April 9, 2021. Digest No. TLD-May242021006