Jury Striking Series: Barikara v Kyei, 2021 ONSC 1636

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Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Barikara v Kyei, 2021 ONSC 1636 | McLeish Orlando Personal Injury Lawyers Toronto

In another chapter in the jury-striking era, the plaintiff in Barikara v Kyei, 2021 ONSC 1636 was successful in conditionally striking the defendant’s jury notice in the Central East Region.

Background

This Newmarket action arose out of a November 2016 collision in which the 65-year old plaintiff, who was a passenger, was catastrophically injured. Once a fully functioning woman, the plaintiff’s injuries have rendered her catastrophically impaired and virtually non-communicative. She requires 24-care and a host of support services. She has lived in hospitals, convalescent centres, and long-term facilities since the collision.

However, the plaintiff still owns her house and wants to move back home. The cost of attendant care services at home exceeds the maximum amount payable in attendant care benefits. The plaintiff, therefore, desires a trial as soon as possible in order to recover the funds to allow her to return home with the care she requires.

Positions of the Parties

The plaintiff brought a motion to strike the jury notice. A trial record was filed in April 2019 and private mediation and pre-trial have already taken place. The plaintiff sought to have the action placed on the judge-only Central East Region’s Civil Trial Sittings commencing May 17, 2021.

The defendant took the position that the right to trial by jury should not be dispensed with wholesale and that the “wait and see approach” should be taken.

Disposition

In reaching her decision, Casullo J. referenced two recent jury-strike cases: Solanski v Reilly, 2020 ONSC 8031, where the elderly plaintiff was in ill-health, and Coban v Declare, 2020 ONSC 7537, where the plaintiff had immediate attendant care needs. In both decisions, the circumstances justified discharging the jury.

In having regard to the particular circumstances of the case, Casullo J. held that justice will be better served by discharging the jury – however, the discharge need not be permanent. Casullo J. stated:

[38] If, when the matter is called, there are no civil jury trials running, the matter will be heard by a judge alone.  If, however, civil jury trials are being conducted when the case is called to trial, the matter proceeds before a jury.  This is a flexible, region-specific approach to maintaining each party’s substantive right to a jury trial, where possible.

In conditionally striking the jury notices, Casullo J. noted that justice delayed may be justice denied and that immediacy is warranted given the particular facts of the case.

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