The Jury’s Out: Another Jury Conditionally Struck – MacKenzie v Pallister, 2021 ONSC 1840

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

Another Jury Conditionally Struck – MacKenzie v. Pallister, 2021 ONSC 1840 | McLeish Orlando Personal Injury Lawyers Toronto

The Superior Court of Justice released another decision earlier this month where the jury notice was conditionally struck.


This motion was first heard in October 2020 by Boswell J. At that time, Boswell J. dismissed the motion but left it open to the plaintiff to re-initiate the motion in the event that the court suspended in-person hearings in the Simcoe-Muskoka courthouses or if the action had not been scheduled for trial prior to April 1, 2021.

In January 2021, the Superior Court suspended jury selection until at least May 2021. More recently, the Regional Senior Justice for the Central East region noted that in all likelihood, there will be no civil jury trials in the Central East region for the rest of 2021.

The plaintiff, therefore, renewed her motion to have the jury notice struck.

Legal Principles

McCarthy J. reviewed the legal principles underpinning jury strike motions in the age of the COVID-19 pandemic.

[6] Although the right to trial by jury is an important one, it is far from absolute. It is not a constitutional or quasi-constitutional right.  It must yield to practicality.  The overriding test is whether it has been demonstrated that justice to the parties will be better served by the discharge of the jury.  When applying that test, context is important: see Girao v. Cunningham2020 ONCA 260, at para. 171.

McCarthy J. emphasized the importance of hearing these motions in the context of local conditions in referencing the Court of Appeal decision in Louis v Poitras, 2021 ONCA 49, in which Hourigan J.A. stated as follows:

[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case.  Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt2020 ONSC 6384, at para. 49.  That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances:  Belton v. Spencer2020 ONCA 623, at para. 75.

Position of the Parties

The plaintiff submitted that having the case tried by a jury is such that her justice would be denied or significantly delayed. Further, the plaintiff was concerned about her declining health, which would make her attendance at a jury trial uncertain, and that there was a high level of uncertainty regarding when civil jury trials would resume in the Central East Region.

McCarthy J. noted that the vast majority of jury notices in motor vehicle accident litigation are filed by defendants who are automobile insurers who argue that any notion of “justice” in these claims necessarily includes the right to trial by jury.


In reaching his decision, McCarthy J. noted that the circumstances were prejudicial to the plaintiff whose case was ready to proceed to trial. With respect to motor vehicle accident litigation, McCarthy J. stated at para. 12 that, “as with many motor vehicle accident cases, the passage of time serves to irredeemably prejudice the Plaintiff’s position and compromise her chances for a successful outcome.”

Given this, McCarthy J. took judicial notice of the annually-increasing statutory deductible, the plaintiff’s eroding loss of income claim, the necessity of having to update expert reports, and the parties’ availability and readiness for trial during the spring of 2021 sittings in conditionally striking the jury notice.

Similar to recent decisions where jury notices were conditionally struck [link to Barikara v Kyei, 2021 ONSC 1636 blog post], McCarthy J. stated:

[16] I am persuaded that I must strike the jury notice, but only provisionally.  If the matter can be reached, tried, and completed during the spring 2021 sittings then justice will have been done to the parties in a fair, proportionate, and timely fashion.  To expect Plaintiff to wait a year or more for a jury trial is not reasonable or just if alternative access to justice is available. The matter has been set down for trial; it has been pre-tried and deemed procedurally ready for trial; the RSJ for the Central East region has notified the profession that spring 2021 civil sittings will be held for non-jury cases only; the parties have assured me that the matter is ready to proceed when called; even though there is a priority scheme in place for civil matters to be heard,  the court has knowledge that the trial list is currently manageable and that there is an excellent chance for this matter to be reached this spring.

[17] On balance I find this to be the just and fair result.

Lindsay Charles


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