Member Article

As courts cautiously resume in-person hearings across the country, there is looming uncertainty about when—or if—civil jury trials will ever resume. For instance, B.C. and some regions in Ontario have announced that civil jury trials are suspended until at least 2021—and Ontario is considering whether to abolish them altogether. By contrast, Alberta is allowing all jury trials to resume subject to new health and safety protocols, but there has not been a civil jury trial in Alberta in nearly a decade. Amidst all the changes to the justice system that will be caused by the pandemic, the fate of the civil jury trial is unclear.

Unlike in serious criminal cases, there is no constitutional right to a civil jury trial in Canada, not even in very high-stakes cases. Whether a civil jury trial is permitted depends on the procedural rules of each province. The rules generally allow for civil juries in cases of defamation, false imprisonment, or malicious prosecution—and in Alberta the (antiquated) list also includes cases of “seduction” or “breach of promise for marriage”. Civil juries may also be permitted in cases where the amount at issue exceeds a certain threshold (e.g., $75k in Alberta or $100K in B.C.). However, the rules also generally allow an opposing party to request a trial by judge alone, usually on the basis that the evidence may be too voluminous or too scientifically complex for a jury to manage.

In Ontario and B.C., where they are more common, civil jury trials are presently suspended. In B.C., the suspension appears to be motivated solely by the health and safety concerns caused by the pandemic. No civil jury trials will be allowed in B.C. until after October 4, 2021, and all previously scheduled civil jury trials between now and then will proceed by judge alone. In Ontario, while health concerns also motivated the suspension of jury trials, the provincial government is also taking the opportunity to consider whether to severely restrict civil jury trials, or eliminate them altogether, in light of “changing demands on the justice system.” So far, there have been mixed reactions to the prospect of potentially eliminating the civil jury trial in Ontario. Some are in favour, citing resource concerns. Others oppose it, emphasising the important role of bringing community participation in the justice system.

By contrast, Alberta has recently announced the resumption of all jury trials. Courts will be following health and safety protocols set out by Alberta Health as well as additional recommendations by the Action Committee on Court Operations in Response to COVID-19. While this theoretically includes civil jury trials, the last time a civil case was approved for a jury trial was 2008, and the last time a jury trial was even requested was 2015 (and the request was denied). Perhaps expressing the prevailing sentiment in Alberta, in one case a judge observed that “from a civil litigant’s perspective, civil jury trials are lengthier and costlier than civil trials tried by [judge] alone”.

This gets to the nub of the issue. Jury trials are more time and resource intensive than trials by judge alone. While the Covid-19 pandemic now makes it even more difficult to assemble a jury, some, like the Government of Ontario, are asking whether the extra time and expense is worth it. While B.C. seems intent on resuming civil jury trials in late 2021, it is difficult to predict what impact a decision to abolish civil jury trials in Ontario might have on how B.C. proceeds. Meanwhile, in Alberta, civil jury trials are notionally available but no one is using them. In the end, it may come down to this: if the civil justice system can function without civil jury trials during the pandemic, is there any place for them in the post-pandemic system?