The Jury’s Out: Evans v Chiarello, 2021 ONSC 2677

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

Jury Striking Series: Evans v. Chiarello, 2021 ONSC 2677 | McLeish Orlando

The defendants’ jury notice was struck in the recent Sault Ste. Marie decision in Evans v. Chiarello, 2021 ONSC 2677.


This action arose as a result of a motor vehicle collision that occurred in January 2015 in Sault Ste. Marie. The matter was set down for trial in June 2019.

There is a rolling trial list in Sault Ste. Marie, meaning jury sittings and trials are placed upon the list and given priority according to a number of factors including the age of the action.

The local trial coordinator was in attendance at the hearing of the jury-strike motion. The trial coordinator advised the court that:

  • All jury trials will be spoken to in the fall of 2021 to determine whether or not they can proceed;
  • The only civil jury sittings currently scheduled are in January 2022;
  • If scheduling, backlog, and other factors permit, an additional jury sitting could be booked in 2022;
  • The subject action currently sits 12th out of 24 matters in terms of priority, meaning there is no guarantee that the matter will be heard in January 2022; and
  • If the jury notice in the subject action were to be struck, a judge-alone trial could be set in the first half of 2022.

Positions of the Parties

The plaintiffs are approximately 70 years old. The plaintiffs submitted that the jury notice ought to be struck because a jury trial delay will be significant, their age requires prompt adjudication, and they will suffer prejudice by the delay due to the annually increasing deductible, the continued erosion of their loss of income claim, and the necessity to obtain updated expert reports.

On the other hand, the defendants argued that they have a right to a jury trial and that right should not be interfered with lightly. Further, the defendants prepared their case for a jury trial and a change would be prejudicial and there is no guarantee that the case would be heard expeditiously if it was to proceed without a jury.


The Court reviewed the Rules of Civil Procedure and the principles from the relevant legal authority in Louis v. Poitras, 2021 ONCA 49:

[17] It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceeds without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.

[25] There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted.


In granting the plaintiffs motion to strike the defendants’ jury notice, the Court held that the certainty in knowing that this action would be heard in the first half of 2022 was more favourable than waiting to see whether or not it could proceed by way of jury trial in January 2022 at best:

[15] … It is true that the right to a jury trial is important, but as noted in Louis, it ought not to override the larger concerns about “justice delayed is justice denied” where the delay in justice can cause real prejudice.  In this situation, an older litigant will quite possibly have his legal affairs put on hold for several years pending the availability of a jury trial.  Hryniak v. Mauldin 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87 speaks to the prejudice associated with delayed justice and, as a result, I need not repeat the damage that happens when litigants cannot get timely adjudication.  It goes without saying that this phenomenon is exacerbated when older litigants are involved.  Had the plaintiffs been younger, I may have considered this motion in a different light.

[16] Put another way, it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023 whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.

Lindsay Charles


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