Court File and Parties
COURT FILE NO.: 4522/11 DATE: 20210225 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Louda Ismail, Plaintiff AND: Meaghan Fleming and Laurie Fleming, Defendants
BEFORE: Tranquilli J.
COUNSEL: Karl Arvai, for the Plaintiff Catherine McIntosh, for the Defendants
HEARD: January 27, 2021 via Zoom
Endorsement
[1] The plaintiff seeks an order striking the jury notice in this 10-year old personal injury action because of the ongoing delays caused by the COVID-19 pandemic. The plaintiff proposes that the eight-week non-jury trial can then proceed virtually and in tranches, if necessary. This will allow for an earlier, more expeditious and less costly trial.
[2] The defendants oppose the motion. The defendants submit that the “wait and see” approach is in the interests of justice. There is no certainty as to when a trial of this length can be heard even as a non-jury action. The wait and see approach will protect the defendants’ substantive right to a jury trial while the actual circumstances for scheduling this trial materialize.
[3] The court concludes that justice to the parties is better served by striking the jury notice. In the unique circumstances of this action, the court is persuaded that there is real and substantial prejudice by reason of the continued delay. Further delay cannot be justified in the context of the tortured history of this action. Jury trials are suspended until May 3, 2021, at the earliest. There is no indication at this time as to when a civil jury trial will be heard in London. The only certainty is that further delay will result if we wait and see when an eight-week jury trial might be scheduled as this evolving public health situation and mounting backlog of cases continues. In the meantime, civil non-jury cases are proceeding virtually in London. This action trial can be tried virtually and in instalments in the foreseeable future. The jury notice shall therefore be struck and shall be tried in instalments, if necessary, on dates to be set by the trial coordinator.
Background
[4] The action arises out of a July 2009 motor vehicle accident. The statement of claim was issued on June 28, 2011. The defendants filed a statement of defence and jury notice on August 8, 2011.
[5] The action has been scheduled for a jury trial on seven different dates in the last six years: November 23, 2015, September 19, 2016, February 5, 2018, October 1, 2018, January 13, 2020 and February 8, 2021. It was pre-tried on five different occasions throughout those years.
[6] The jury trial started on October 1, 2018 before Leach J. with an estimated duration of five to six weeks. At the outset of trial, the plaintiff unsuccessfully moved to strike the jury on grounds of complexity and injustice, without prejudice to renewing the motion as the trial progressed: Ismail v. Fleming, 2018 ONSC 6780. After four weeks of trial, Justice Leach determined that there was no realistic possibility of the hearing being completed within the original time estimate. On October 31, 2018, Justice Leach declared a mistrial: Ismail v. Fleming, 2018 ONSC 6615.
[7] In November 2018, the matter was rescheduled for trial for approximately one year later, on the January 13, 2020 running list, with a revised estimated duration of eight to nine weeks.
[8] In October 2019, the parties wrote to Regional Senior Justice Thomas to seek assurances that the matter would be called first from the running list given the unique history of the case. RSJ Thomas advised that the court was investigating options, but it would be impossible to fix a trial date before the fall 2020 and it was highly unlikely that the matter would be reached on the January 2020 running list.
[9] In December 2019, RSJ Thomas followed up to confirm there was no reasonable expectation that the court could try this case in January 2020 for eight to nine weeks. The best that could be offered was to fix a date and build it into the court schedule for 2021. Counsel submitted proposed dates for the matter to be tried in early 2021.
[10] On January 13, 2020, RSJ Thomas assigned the case to be tried before me and set the jury trial to a fixed date for a year later, on February 8, 2021 with an estimate of nine weeks.
[11] The COVID-19 pandemic then intervened. While the Superior Court of Justice has remained open throughout the varying stages of the public health measures taken by the province, the court has had to make continuous changes in response to the changing situation.
[12] On August 28, 2020, RSJ Thomas wrote to inform counsel that the court could no longer commit to the fixed trial date for February 2021 because of the suspension of regular court operations. The trickle of cases that the court was able to hear created a substantial backlog and he had to reassign me to other matters. Although courtrooms were reopened, the physical distancing requirements added to the pressures, particularly considering jury proceedings. The action was rescheduled to the September 2020 assignment court.
[13] The plaintiff then brought this motion in November 2020. Further trial scheduling of this matter has been deferred pending the hearing and disposition of this motion. It is next in assignment court on February 26, 2021.
Issues
[14] There are two issues to address in the determination of this motion:
- Should leave be granted to hear this motion?
- Has the plaintiff shown that justice to the parties will be better served by the discharge of the jury?
1. Should leave be granted to hear this motion?
[15] Under rule 48.04(1) a party who sets down an action for trial may not initiate any motion without leave. The defendants fairly acknowledged that the pandemic was not in the contemplation of the plaintiff when she set the matter down for trial. The court agrees that the ongoing pandemic presents a substantial and unexpected change of circumstances such that leave is granted: Coban v. Declare, 2020 ONSC 5580 at para. 29.
2. Has the plaintiff shown that justice to the parties will be better served by the discharge of the jury?
[16] The plaintiff submits that the jury notice should be struck due to the delay caused by pandemic and the uncertainty as to when a civil jury trial will be heard. The plaintiff has now waited 12 years since the collision for this trial, including one mistrial almost three years ago. The plaintiff also suffers non-compensable loss caused by the further deferral in the adjudication because of Insurance Act provisions which limit damages for pre-trial loss of income and provide for an annually increasing statutory deductible. The plaintiff has already incurred substantial expenses to date in preparing for trial, including the four weeks of hearing that ended in mistrial. The plaintiff is prepared to have the case tried virtually via Zoom technology and by instalments, if necessary. The plaintiff anticipates the trial can be significantly shortened if it proceeds as a non-jury matter, thereby reducing expense to the parties and freeing up court resources.
[17] The defendants argue that they ought not to be deprived of their substantive right to a jury trial without clear evidence of prejudice. The “wait and see” approach adopted in several recent decisions should be favoured. The pandemic has delayed both jury and non-jury civil cases, such that there is no guarantee that a non-jury case of this estimated duration would be heard any earlier than a jury trial. They question whether the length of trial will be shortened in a meaningful way if heard by judge alone. Any prejudice to the plaintiff is attenuated by her receipt of income replacement benefits and the increasing cap on non-pecuniary general damages. The defendants would suffer the greater prejudice if the jury notice is struck. The jury notice has informed their litigation and settlement strategy for the past 10 years. This chronic pain case turns on credibility and is particularly well suited to a jury determination by six citizens judging the credibility of their compatriots. The jury trial would have proceeded in February 2018 but for the unavailability of two plaintiff witnesses. Efforts to have the jury trial were thwarted again with the mistrial declaration in October 2018. The new trial would have been held this month but for the pandemic.
[18] The parties referred the court to the flurry of recent decisions from various regions of the province concerning striking the jury notice because of the delay caused by the pandemic. A great deal of time was spent written and oral submissions in comparing or distinguishing these decisions and in articulating any organizing principles to be distilled from these precedents.
[19] However, with Louis v. Poitras, 2021 ONCA 49 there is now clear appellate guidance regarding civil case management during the pandemic crisis. The right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality. The civil justice system in Ontario faces an unprecedented crisis and judges of the Superior Court must sometimes find creative ways to ensure that parties get their day in court in a timely manner. Local conditions will necessarily impact the choice of effective solutions. Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking a jury notice. The whole raison d’etre of the civil justice system, as captured in rule 1.04(1) is that courts will work to provide the most expeditious determination of every civil proceeding on its merits.: Louis v. Poitras, 2021 ONCA 49, at paras. 1, 24, 25, 33. Louis was released two days before the hearing of this motion and the court brought this to the parties’ attention at the outset of the hearing for consideration and submissions.
[20] Beyond relying on the series of Notices, practice directions and memoranda issued by the Chief Justice, Regional Senior Justice and the Local Administrative Justice since the outset of the pandemic, the parties confirmed they had not made specific inquiries of the trial coordinator regarding civil trial scheduling. I therefore advised the parties that the court asked the trial coordinator about the status of the civil list in London. A date for a lengthy jury or non-jury trial is likely to be fixed for no earlier than 2022, assuming public health conditions allow for in person jury trials. Civil non-jury trials are being offered virtually now and can be scheduled for as early as this spring 2021. Lengthy non-jury trials can be scheduled to be heard virtually on a non-continuous or installment basis. Plaintiff counsel advised that the plaintiff would be ready to start a non-jury virtual trial in the spring 2021 and would agree to proceed in instalments. Defence counsel was unsure as to their availability in the spring 2021.
[21] The court recognizes the defendants’ frustration with the missed opportunities to have had this matter tried by a jury in 2018. However, those considerations cannot factor into how the court is to resolve the challenge now posed by the profound effect of the pandemic on the court’s ability to provide timely access to justice.
[22] This action is long overdue for trial. It concerns events that took place beginning 12 years ago. It took seven years to get to trial, only to result in a mistrial after four weeks of evidence. A new trial date was not available for another three years, even in pre-pandemic conditions.
[23] Jury trials throughout the province are suspended until May 3, 2021 at the earliest. The Chief Justice has directed that all non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceeding in person. London is currently classed as being in the “red zone” under the province’s COVID-19 response framework, requiring stringent public health and workplace safety measures. The latest memorandum from LAJ Grace, dated February 24, 2021 demonstrates the ongoing uncertainty of when jury trials will resume. LAJ Grace advises that the status of civil jury trials scheduled to commence on May 10, 2021 “and beyond is not yet known”.
[24] In the meantime, civil non-jury trials are being scheduled to be heard virtually in London and are being held. There is capacity in the schedule to conduct a lengthy trial in instalments. In that context, the court does not accept the defendants’ argument that the pandemic-related delays affect jury and non-jury trials equally. The evidence is to the contrary. A “wait and see” approach would require delaying rescheduling to a future unknown date, whereas virtual non-jury trials can be set for as soon as the spring 2021. The court finds that striking the jury notice is a proportionate response to mitigate the delays that have beleaguered this longstanding action and to provide an earlier, more efficient and more affordable trial. It will also better serve the needs of other parties in the civil justice system by addressing the backlog of cases.
[25] The plaintiff’s evidence as to the degree by which a judge-alone trial would likely shorten the trial estimate lacked precision. However, it is recognized that by their nature, civil jury trials take longer than civil judge-alone trials and, since they take longer, the parties incur more legal expenses: Louis v. Poitras, 2020 ONCA 815 at para. 68.
[26] Defendants’ counsel spoke eloquently of their unwavering commitment to exercise their substantive right to a jury trial over these last 10 years and the recognized ability of a jury of peers to justly determine a matter on its merits. However, both a single judge and a jury labour under the same duty to do justice impartially and dispassionately, based on the evidence before them: Louis v. Poitras, 2020 ONCA 815 at paras. 68-69. Apart from a general assertion that the jury notice has informed their litigation and settlement strategy, there is no evidence of a specific litigation disadvantage that would justify deferring this trial to an unknown date in the uncertain future so a jury can determine the matter.
[27] The plaintiff’s motion to strike the jury notice is therefore granted, with the trial to be scheduled to be heard in instalments as may be necessary. In the circumstances, the costs of this motion are reserved to the trial judge.
Justice K. Tranquilli Date: February 25, 2021