Canadian Lawyer

March 2021

The most widely read magazine for Canadian lawyers

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Page 33 of 43

32 LEGAL REPORT THE COVID-19 pandemic has brought many changes to the Canadian legal system and personal injury cases have seen that impact from some of the widest angles. Yet the impact has varied widely across the country. In Nova Scotia, for example, jury trials are still happening in civil litigation matters such as personal injury, but with a lot of modifica- tions. British Columbia, on the other hand, has abolished civil jury trials during the pandemic and for civil cases such as personal injury. In Ontario, there is an ongoing case — soon to be decided — determining whether a plaintiff or defendant has a right to a jury trial, as opposed to a judge alone, even if it postpones the trial date far into the future. And when securing a personal injury trial date is difficult at the best of times, with or without a jury, it generally means a long wait, which worries lawyers. "When it comes to setting an action down for trial, we're getting a delayed response from the court and told there is a huge backlog," says lawyer Joseph Campisi at Campisi Personal Injury Lawyers in Vaughan, Ont. "Historically, it has always taken a while to get PERSONAL INJURY COVID-19's impact on personal injury cases With court process changes differing widely across the country, the pandemic has had varying effects on personal injury disputes, writes Zena Olijnyk a trial date, but I anticipate it is going to take even longer during COVID-19." Campisi says there is a good reason that precedence for court and judge time is being given to criminal cases and family law — there are Charter timing reasons that guarantee a criminal trial is done within a reasonable time. Family law cases often deserve a higher level of urgency. And from a public health perspective, it makes sense that there be fewer jury trials and more judge-alone trials, Campisi says. But there has been pushback going the judge-alone route, usually from defendants and typically insurance companies. Indeed, there is one case in the Court of Appeal for Ontario that tested this very conflict. In Firma Louis and Marcdere Louis v. Jacques Poitras and Security National Insurance Company, the plaintiffs argued that a judge-alone trial should go ahead as sched- uled rather than be postponed into a post- COVID future, as the defendants requested. The court recently stayed a divisional court decision that reinstated the jury notices favouring the defence's position. In his decision, Justice David Brown wrote that he has "no hesitation" in concluding it is in justice's interests to grant a stay of the Divisional Court order that reinstated the jury notices. "The motor vehicle collision that gave rise to these actions occurred over seven and one-half years ago," he wrote. "In a civil justice system that professes concern about providing the public with the 'most expedi- tious' adjudication of their civil suits on their merits, this action should have been tried long ago. The parties are ready for trial and have been for some time. COVID-19 intervened . . . . The continuation of the pandemic renders unknown and unpredictable when civil jury trials will resume." The appeal court upheld the lower court decision allowing the stay on jury notices, leaving the case to go to trial on a judge- alone basis. Campisi says plaintiffs in personal injury

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