Rolley v. MacDonell – Consequences for Underestimating the Time Required for Trial

Written By: Dale Orlando and Brock Turville, Summer Student

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Trials involve coordination and planning between numerous parties. The courthouse must assign a trial date and courtroom, the jury must be selected (in a jury trial), and lawyers must coordinate with each other, their clients, and any witnesses.

With all of these moving parts, it can be difficult to determine how long a particular trial will take. All kinds of delays can arise as the trial progresses, and counsel will not always be able to estimate the length of a trial with exact precision. However, Justice Corthorn stated in Rolley v. MacDonell[1]  that it is the responsibility of counsel to provide a reasonably accurate estimate of the time required to complete the trial. Justice Corthorn warned that the consequences to parties may be very serious if the length of the trial is significantly underestimated.

Rolley v. MacDonell

The primary plaintiff, a pedestrian, was injured when he was struck by the defendant’s vehicle and suffered a mild traumatic brain injury.  At the pre-trial conference, counsel estimated the length of the trial to be four weeks. The jury trial commenced on November 21, 2017, and at the conclusion of the four-week period on December 15, 2017, two-thirds of the plaintiffs’ witnesses had yet to be called. The trial was scheduled to resume on January 29, 2018 and would continue until March 2, 2018.

The plaintiffs brought a motion pursuant to s. 108(3) of the Courts of Justice Act to strike the jury notice, discharge the jury, and have the trial continue before the judge alone. The plaintiffs relied on the fact that there would be a 44-day gap from December 15, 2017 to January 29, 2018.

Justice Corthorn granted the motion because three of the plaintiffs’ most crucial witnesses had already been called by December 15, 2017. The neuropsychologist for the plaintiffs testified in early December 2017, while the defendants’ neuropsychologist was scheduled to testify sometime in February 2018, a gap of about two months. This is significant because the evidence from the defendants’ neuropsychologist would be fresher in the minds of the jury than the plaintiffs’ neuropsychologist.

In addition, by the time the jury would have deliberated the case, it would have been almost three months since the primary plaintiff and his wife began their evidence. Justice Corthorn held that the gap between the jury hearing the evidence and making a decision had the potential to prejudice the jury’s reasoning process as well as its ability to fulfill its role.

As a result, the jury notice was struck and the trial proceeded with Justice Corthorn alone.

General comments on estimating the time required for trial

Justice Corthorn noted that counsel consistently underestimate the length of a trial by a number of weeks. In response to this problem, she stated that “[c]ounsel must take very seriously and apply themselves much more diligently to the task of estimating trial time” and that trial time estimates are “one of the most important tasks counsel carry out in fulfillment of their responsibilities to the administration of justice”.

She outlined the spectrum of individuals who are impacted by inaccurate time estimates. For example, each member of the jury and their families are affected by longer-than-anticipated trials. Employers and colleagues are impacted because of adjustments they have to make at work in the absence of the individual. In addition, other litigants are affected when their trials are adjourned because of trials that run past their estimated time.

In granting the motion due to a 44-day delay, Justice Corthorn clarified that it was not intended to establish a standard for future cases, and that the decision to strike a jury notice and proceed by judge alone must be determined on a case-by-case basis.

[1] 2018 ONSC 508

Alexis Perlman


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