In Premanathan v. Kandasamy et al. 2021 ONSC 3207 (link here), the court considered the plaintiff’s request to strike the jury notice. Ultimately, the plaintiff relied upon the ongoing pandemic as the basis for the striking of the jury notice. Justice Ramsay declined to strike the jury notice on the basis that the plaintiff failed to discharge his onus, which was substantial. The right striking of the jury notice was without prejudice if the plaintiff chose to renew the motion in the future.
The case, in my opinion, is important for a number of reasons:
- Simple reliance on the pandemic will not suffice in having a jury notice struck.
- Counsel must be cognizant of the local conditions and the availability of judicial resources when considering the administration of justice. To simply rely on delays without such evidence will not be helpful in striking the jury notice.
- Simple bald allegations of prejudice without sufficient evidence to support the allegations will not be sufficient to sway a court in striking a jury notice. There will need to be evidence presented that will need to convince the court that the delay will result in prejudice.
- Affidavits presented at motion will need to be supported with evidence and the affiants will be of importance when presenting evidence to the court. The court in Premanathan appeared to have taken issue the quality of the evidence from both parties.
- Timing of the motion is critical. To simply proceed with a motion to strike the jury without consideration of the foregoing will likely result in a failure to strike the jury notice.
- The defendant argued that credibility was central to the defence “…which requires an assessment based on societal common sense which may only be achieved with a jury.” Justice Ramsay noted at paragraph 49 “…the defendant’s argument that with respect to credibility, anchored to the defendants’ litigation strategy, out to be rejected. A judge is just as capable as a jury in assessing the credibility of witnesses. The defendants’ litigation strategy does not trump the balancing exercise require by a motion judge in determining whether the interest of justice requires that the action proceed to trial with a judge alone.” Thus, it would seem that the defendant cannot rely on the assumption that a jury is best suited to assess credibility and that should be the overarching factor when considering the interests of justice.
The decision in Premanathan serves to reinforce that striking a jury notice will require clear and cogent evidence on the part of the plaintiff. Although this is a substantial onus, it is not insurmountable. I believe the decision provides the necessary roadmap to assist in overcoming this onus.