Court File and Parties

COURT FILE NO.: CV-17-106 DATE: 2021-03-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Darlene MacKenzie, Plaintiff – and – Crystal Pallister, Defendant

Counsel: David A. Morin, for the Plaintiff Christopher R. Martyr, for the Defendant

HEARD via videoconference: March 9, 2021

Reasons for Decision on Motion

McCarthy J.

Overview

[1] The Plaintiff moves to strike the jury notice under s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 47.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] Leave of the court is required to bring the motion under r. 48.04(1). The Defendant does not oppose the request for leave. Leave is therefore granted. The Defendant does oppose the substantive relief sought.

[3] This motion was first heard before my brother Boswell J. on October 21, 2020. Although he dismissed the motion, he left it open to the Plaintiff to re-initiate the motion in the event that the court was forced to suspend in-person hearings in the Simcoe-Muskoka courthouses or if the action had not been scheduled for trial prior to April 1, 2021. Indeed, on January 13, 2021, the Ontario Superior Court of Justice suspended jury selection until at least May 3, 2021. More recently, on February 10, 2021, the RSJ for the Central East region notified the profession that non-jury civil trials only will take place during a three-week sitting commencing on May 17, 2021. There will be no civil jury trials during those sittings. Finally, the RSJ has intimated to members of the bench that, in all likelihood, there will be no civil jury trials in our region for the balance of 2021.

[4] Even if some form of normalcy returns to court operations, the current system in Central East assigns civil jury cases to one of two three-week sittings in either May or November of a given year. The matter before the court is estimated to be a 10-day trial; therefore, there is no possibility of it being provided with special dates afforded to lengthier matters. In short, with the jury notice in place, there is almost no chance of it being reached before May 2022.

[5] It is against this stark background that the Plaintiff has renewed her motion to have the jury notice struck.

Legal Principles

[6] Although the right to trial by jury is an important one, it is far from absolute. It is not a constitutional or quasi-constitutional right. It must yield to practicality. The overriding test is whether it has been demonstrated that justice to the parties will be better served by the discharge of the jury. When applying that test, context is important: see Girao v. Cunningham, 2020 ONCA 260, at para. 171.

[7] Most recently, in Louis v. Poitras, 2021 ONCA 49, the Ontario Court of Appeal, in overturning a decision of the Divisional Court, restored the order of the motions judge striking the jury notice. In its reasons, the court emphasized the broad discretion afforded to a judge when considering a motion to strike a jury notice: at para. 17.

[8] The court went on to emphasize the importance of judges viewing these motions in the context of local conditions born of the Covid-19 pandemic. At para. 26, Hourigan J.A. stated as follows:

A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75.

[9] In the case of MacLeod (Litigation guardian of) v. Canadian Road Management Co., 2018 ONSC 2186, Myers J. was asked to strike a jury notice on the basis of complexity and systemic delays in civil jury trials, which became a reality following the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27. Although he declined to strike the jury, the motions judge did touch upon systemic delays and stated that where a court is unable to provide a civil jury trial in an expeditious, affordable and proportionate way, the right to a civil jury trial might have to yield in appropriate cases in order to provide parties with an expeditious, affordable and proportionate resolution: at para. 32.

[10] The term “justice to the parties” is an attractive but elusive one. Anybody familiar with personal injury litigation, and in particular injury litigation arising out of motor vehicle accidents, will have learned that the vast majority of jury notices in these matters are filed by defendants behind whom, more often than not, stand indemnifying automobile insurers. It would be daring but speculative (and may I add thankfully unnecessary) to surmise why that is the case; what matters here is that for most defendants any notion of “justice” in automobile tort claims necessarily includes the right to trial by jury.

[11] The Plaintiff argues that delay in having this matter tried by a jury is such that justice to her will be denied or significantly delayed. She is concerned about her declining health which may make her physical attendance at a jury trial uncertain. There is a high level of uncertainty about when civil jury trials will resume in our region.

Discussion

[12] Without doubt, the state of uncertainty for the future of civil jury trials in this region renders the prospect of her waiting a year or more for her day in court a virtual certainty. This is, on its face, prejudicial to the Plaintiff whose case is ready to proceed to trial when called. To this I would add that, as with many motor vehicle accident cases, the passage of time serves to irredeemably prejudice the Plaintiff’s position and compromise her chances for a successful outcome. I take judicial notice of the following:

1. Both the statutory deductible on general damages and the floor beneath which that deductible applies continue to increase on a yearly basis, making it inevitable that in a 2022 trial, the Plaintiff’s claim would be subject to a deductible in excess of $40,000 and a floor in excess of $132,500. There is no off-setting mechanism built into the system which allows or directs damages assessments to keep pace with these statutorily mandated annual adjustments. One could argue that the effect of pre-judgment interest during the period of delay would serve to increase the net recovery under this head of damages; however, this would not protect the Plaintiff from potentially disastrous cost consequences should the application of the deductible result in a net recovery which is below an offer to settle (before interest) made by the Defendant.
2. The Plaintiff is limited to recovering 70% of her past loss of income (i.e. pre-trial income); whereas she is entitled to recover 100% of her future loss of income. With every day of delay, she is deprived of full recovery of any loss of income that she does recover.
3. The Plaintiff will undoubtedly have to update expert reports, most notably medical reports if the matter is delayed another year. A failure to do so might result in a trier of fact concluding that the opinion of a medical expert who has not examined the Plaintiff, or reviewed her situation, for a significant period of time before trial is not reliable or is entitled to only limited weight. This will be expensive and time consuming and there is no guaranteed recovery of these expenses.
4. The parties have signaled their availability and readiness for trial during the spring 2021 sittings. Should the matter be delayed into 2022, there will remain the prospect that the non-availability of either counsel or key experts will serve as the basis for the matter not being called and being traversed to the next sittings.
5. The Plaintiff continues to receive collateral benefits. Collateral benefits actually received are deductible from many heads of damages that the Plaintiff might be entitled to. If offers to settle are currently in place, these offers may be or become outdated with the passage of time. Collateral deductions impact net recovery. The amount claimed is one of the factors a trial judge considers when determining costs. The certainty of a trial date allows both parties to factor in these deductions when crafting their offers to settle and deciding on whether to accept the other side’s offer to settle.

[13] Another crucial consideration is the priority that has and will be given to criminal jury trials in the wake of the Supreme Court’s decision in Jordan. As stated by Casullo J. in the recent case of Francisco v. Li, 2021 ONSC 1032, at para. 27:

In Central East, the landscape in respect of jury trials is uncertain. What is certain is that when our courthouses are up and running, and parties are once again competing for scarce judicial resources, the imperative will tip the balance in favour of criminal jury trials over civil jury trials.

[14] No person familiar with what has been the reality on the ground for some time in this region could disagree that since the Supreme Court’s decision in Jordan, civil jury trials have taken a back seat to criminal jury trials when it comes to the allocation of judges and courtrooms. There is no reason to suspect that the reality will change anytime soon. In fact, a dire forecast that many civil jury trials which would otherwise be ready to proceed will be postponed or delayed into late 2022 or even 2023 might prove sadly prophetic.

[15] Ultimately, the court is obliged to engage in a balancing act when attempting to find justice between the parties: the right to a trial by jury versus the right to one’s day in court in an affordable and timely manner without undue prejudice brought about by avoidable delay.

Conclusion

[16] I am persuaded that I must strike the jury notice, but only provisionally. If the matter can be reached, tried and completed during the spring 2021 sittings then justice will have been done to the parties in a fair, proportionate and timely fashion. To expect the Plaintiff to wait a year or more for a jury trial is not reasonable or just if an alternative access to justice is available. The matter has been set down for trial; it has been pre-tried and deemed procedurally ready for trial; the RSJ for the Central East region has notified the profession that spring 2021 civil sittings will be held for non-jury cases only; the parties have assured me that the matter is ready to proceed when called; even though there is a priority scheme in place for civil matters to be heard, the court has knowledge that the trial list is currently manageable and that there is an excellent chance for this matter to be reached this spring.

[17] On balance I find this to be the just and fair result.

[18] For the foregoing reasons, there shall be an order to go as follows:

1. The Defendant’s Jury Notice is provisionally struck;
2. The matter shall be placed on the May 17, 2021 sittings for an estimated 10-day trial before a judge alone at Bracebridge (to be held remotely or as directed by the trial coordinator);
3. Should the matter not be reached or called for trial by June 4, 2021 the Defendant shall be at liberty to bring a motion before me, on notice, to have the Jury Notice restored.

Costs

[19] Both parties have requested an opportunity to address the court on the issue of costs upon my disposition of this matter. Given that there has been divided success and that the costs order of Bowell J. on the initial motion has been traversed to me for further consideration, I will afford them that opportunity. I prefer that any cost submissions be made before me orally rather than in writing. Should the parties be unable to decide for themselves the issue of costs, either side may take out an appointment before me to address that outstanding issue through the trial coordinator at Barrie.

McCarthy J. Released: March 11, 2021