David H. Lauder

The plaintiff in a personal injury action moved to strike the jury notice because pandemic-related public health restrictions made it unlikely a civil jury trial could proceed as scheduled in June 2021.

The defendant opposed, preferring to adjourn the trial until a jury was available.

The court noted that local conditions in Kingston meant no civil jury trials would be held in 2021, and an adjournment would delay the trial until at least April 2022, causing prejudice to the plaintiff.

The court conditionally struck the jury notice, ordering that if the case is called during the June 2021 sittings, it will proceed without a jury, but if it must be adjourned due to lack of judicial resources, the jury notice may be restored if a jury trial is available at the rescheduled date.

The defendant employer brought a motion for summary judgment seeking dismissal of a wrongful dismissal action, arguing that an employment agreement limiting termination compensation was enforceable.

The employee resisted the motion relying on the changed substratum doctrine, asserting that promotions and increased responsibilities had fundamentally altered the employment relationship and nullified the contractual notice limitation.

The court held that, although the doctrine had not been expressly pleaded, the pleadings and affidavit evidence raised the issue sufficiently for the purposes of the motion.

Applying the summary judgment framework, the court found that genuine issues requiring a trial existed regarding whether the employee’s responsibilities and status had materially changed.

The motion for summary judgment was dismissed and the action was permitted to proceed to trial.