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Justice Ricchetti ordered that a civil jury trial proceed virtually over objections from defence counsel. In this case, a motor vehicle accident case was at risk of not being heard in 2022 due to court delays stemming from COVID-19 restrictions

Ontario

,

Canada

A Civil Jury Trial Proceed Virtually over Objections from Defence Counsel In Fraser v. Persaud, 2021 ONSC 8429 9, Justice Ricchetti ordered that a civil jury trial proceed virtually over objections from defence counsel. In this case, a motor vehicle accident case was at risk of not being heard in 2022 due to court delays stemming from COVID-19 restrictions. The accident occurred in 2015. A four-week jury trial was scheduled to be heard during the May 2021 Blitz hearings in Brampton but was rescheduled due to the pandemic. It was then meant to be heard during the January 2022 Blitz hearings in Brampton, which were again affected by concerns due to the pandemic. Counsel for the Plaintiffs submitted that he is 77 years old and that both the dangers of an in-person hearing and the prejudicial impact of a further two-year delay of an already six-year-old matter were not acceptable and not in the interests of justice. Both counsel for the Defence cited “key” credibility issues without providing details or explaining why the credibility issues were unique or could not properly be assessed in a virtual hearing.The Court weighed the options: either proceed virtually in January 2022 or adjourn the matter to a January 2024 sitting. Accepting the principles laid out by RSJ Thomas in Gagnier v. Burns, 2021 ONSC 1971, Justice Ricchetti noted that Rule 1.04(1) and the November 2020 amendment to Rule 1.08 of the Rules of Civil Procedure both provided that the matter be determined in the most expeditious and least expensive way possible and allowed for trials to proceed by video conference. Reiterating all the factors in favour of a virtual trial and the lack of factors against, the Court particularly noted that the Defence’s submission that the large damage claim warranted an in-person trial was unreasonable:Lastly, I reject the submission that, since this action involves a large damage claim, this is a factor in favor of an in-person trial. As I stated, criminal trials are routinely heard virtually, and they involve a person’s freedom. And family trials where children’s future lives are decided, and the finances of the parties (sometimes involving large amounts) also proceed virtually. (para. 30)The matter was ordered to proceed virtually if called during the January 2022 sittings, subject to direction from the trial judge.

April 14, 2022
Fraser v. Persaud, 2021 ONSC 8429