Court File and Parties

COURT FILE NO.: CV-14-21614 DATE: 2021-03-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Gagnier, Lori Gagnier, Brandon Richard William Gagnier, and Zackary Quinn Gagnier, Plaintiffs – and – Barbara A. Burns, Defendant

Counsel: Jennifer E. Bezaire, Counsel for the Plaintiffs Mary-Joe Renaud, Counsel for the Defendant

HEARD: March 11, 2021 at Windsor.

THOMAS, RSJ.:

The Motion

[1] The plaintiffs move for an order striking the defendant’s jury notice and directing a trial by judge alone to proceed virtually and in tranches if necessary. The grounds are that circumstances created by the COVID-19 pandemic mean a substantial trial delay and that this action could not be tried by a jury until sometime in 2022 at the earliest. The plaintiffs need leave to pursue this motion as the action has been set down for trial.

[2] The defendant resists the order and suggests the “wait and see” approach adopted by other Courts dealing with this issue. The defendant argues that it is premature to strike the jury. There is no pre-determined date for a non-jury or a jury trial in the matter, and no guarantee that a non-jury trial would conclude any earlier if conducted in tranches with an anticipated reserved decision.

Background

[3] On September 5, 2013, the plaintiff Richard Gagnier was operating his motorcycle with his wife Lori as a passenger. The Gagnier motorcycle collided with the car driven by the defendant Barbara Burns, as Burns was making a left turn.

[4] The statement of claim was issued on December 8, 2014. The claim was amended in September, 2017 to increase the damages sought in the prayer of relief. I am advised that taking into account interest, the claim now approaches $6,000,000. The Gagniers have apparently been unable to return to their employment since the accident.

[5] The action was set down for trial on November 7, 2017. It was set to be tried by a jury over eight weeks commencing on February 22, 2021.

[6] This motion was originally returnable on December 1, 2020 and was adjourned to allow for a more accurate assessment of the list of outstanding trials and to determinate the effects of the progress of the pandemic.

[7] I wrote to counsel in this matter on December 10, 2020 advising that I was confident that the suspension of jury trials in Ontario would extend into the early months of 2021 and that in any event, I did not have a trial judge to assign to the trial. I cancelled the jury panel for February 22, 2021.

[8] On January 13, 2021 by Notice to the Profession and Public, Chief Justice Morawetz extended the suspension of jury trials until May 3, 2021.

[9] On January 21, 2021 the Court’s Local Administrative Judge in Windsor, Justice Pomerance, directed that all civil jury trials scheduled between March 2020 and December 2021 would be traversed to an assignment court and provided trial dates in 2022 as there was no expectation they could be tried in 2021 with the backlog of family and criminal trials.

[10] The trial of this action was adjourned from February 22, 2021. If I deny this request, the action will appear on an assignment court list scheduled for April 20, 2021, to be assigned a date for trial in 2022, along with other civil jury matters that could not be tried.

Leave

[11] As with previous decisions considering this relief, there is no issue with regard to leave. When this matter was set down, no one could have reasonably contemplated the effects of a global pandemic. There has been a “substantial or unexpected change in circumstances” (Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (Ont. Gen. Div.), para. 10) and it is “in the interests of justice” to grant leave (BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, para. 12).

Positions of the Parties

(a) The Plaintiffs

[12] The plaintiffs argue that the jury notice should be struck which should allow the trial to commence at some point in the Fall of 2021. The trial would, in all likelihood, be shortened with the loss of the jury and could proceed either in-person or virtually. If necessary, as a judge alone proceeding, it could be broken in tranches.

[13] By the Fall of 2021, it will have been over eight years since the injuries were sustained. The plaintiffs are anxious and stressed by the delay of their trial and the vagaries of a future trial date. If the jury is not struck, this action will compete with other actions awaiting trial and be placed on a civil running list sometime in 2022 with no guarantee it will be reached even then.

[14] Counsel brings to my attention that s. 267.5(1) of the Insurance Act limits the plaintiffs’ damages for income loss to 70 percent of the gross income lost, but only until the trial is commenced. It is suggested that the unrecoverable 30 percent is becoming substantial and obviously grows with delay. Adding to the costs of trial would be the need to update experts’ reports if the trial is adjourned to 2022.

[15] Further considering prejudice, plaintiffs’ counsel advises that the treating family physician is 74 years of age and retiring. His evidence, while still available, may be time-limited.

[16] Both liability and damages are in dispute here and the longer the delay, the foggier recollections of the accident may become for the plaintiffs and defendant.

[17] All counsel agree that the overriding issue is causation. The defendant maintains the ongoing disabilities are not related to the accident. Plaintiffs’ counsel argues that the result will be determined by assessing the evidence of the experts who will make up the majority of the witnesses in the trial. Allowing the experts to testify by video will reduce the costs to the parties without detracting from the judge’s ability to assess their evidence.

(b) The Defendant

[18] Counsel for the defendant reminds me that the right to trial by jury in a civil case is a substantive right that should not be interfered with without just cause and for cogent reasons. (King v. Colonial Homes, 1956 SCC 13, [1956] S.C.R. 528; Cowles v. Balac (2006), 2006 ONCA 34916, 83 O.R. (3d) 660 C.A. para. 36).

[19] The historic test is succinctly captured at para. 37 of Cowles:

[37] A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Graham, supra.

[20] Counsel further submits that the defendant is entitled to a jury of her peers who bring their collective life experiences from her community. In addition, a jury verdict ensures that the law keeps pace with the evolving social reality.

[21] While the defendant agrees that causation is the most significant issue to be determined by the triers/trier of fact, it is argued that there is real value to the jury viewing the functional abilities of the plaintiffs while providing their evidence. Thus, a judge alone trial, particularly one held virtually, would not provide justice to the defendant.

[22] Defendant’s counsel states that the plaintiffs are in no financial peril as a result of this delay. Mr. and Mrs. Gagnier commenced receiving $5,764 per month in long term care disability benefits in 2014. They are now receiving C.P.P. disability benefits. They settled their income replacement benefits’ claim with their accident benefit insurer for a combined $367,500 in June, 2018.

[23] In addition, any financial prejudice is mitigated by several statutory provisions as noted by Rady J. at para. 23 of Pietsch v. Lyons, 2020 ONSC 7628:

[23] In my view, the alleged prejudice to the plaintiffs caused by any delay is attenuated by the following:

1. the trial judge retains a discretion pursuant to s. 130 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 to modify the applicable prejudgment interest rate in appropriate circumstances;
2. the lead plaintiff is receiving a number of income replacement/supplements that undoubtedly ease financial pressures;
3. the yearly increase in the quantum of the monetary threshold is matched or offset by an increase in the cap on non-pecuniary general damages; and
4. in any event, if the plaintiffs prevail at trial on their theory of damages, the deductible is a non-issue.

[24] Defendant’s counsel argues strongly that I need to apply the proportionality principle. Counsel brought to my attention paras. 28 and 29 of Hryniak v. Mauldin, 2014 SCC 7:

[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[29] There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

[25] Counsel suggests that there was a reason the Rules were amended to eliminate juries for claims less than $200,000. Here the claim is $6,000,000 and to “fit the nature of the claim” the defendant should be entitled to a jury.

[26] The within action has only been set for trial on one occasion, being in February of this year. Counsel points out that a significant factor in those cases where a jury was struck, was the number of times it had previously been set or the expired time since first set. (Ismail v. Fleming, 2021 ONSC 1425; Louis v. Poitras, 2021 ONCA 49).

[27] It is suggested that there is no certainty a non-jury trial will finish sooner than one tried with a jury. With the potential for a segmented trial and the certainty of a reserved decision, a jury trial in 2022 might well provide a more timely result.

[28] Finally, defendant’s counsel points out that there is no proven track record in Windsor for virtual trials of this duration and none of the counsel in this matter have experience in conducting one.

[29] The argument is that we should wait and see what date in 2022 is assigned to this trial and this argument could be renewed if the trial is not reached at that point.

Analysis

[30] Rule 47.02 of the Rules of Civil Procedure and s. 108 of the Courts of Justice Act provide the discretionary authority to strike a jury notice.

[31] Rule 1.04(1) of the Rules of Civil Procedure provides a general principle that: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[32] In November 2020, an amendment to r. 1.08 allowed for a trial by video conference. By Notices to the Profession and Public Regarding Court Proceedings, dated November 21, 2020 and January 13, 2021, Chief Justice Morawetz strongly encouraged the use of virtual hearings wherever possible.

[33] In para. 38 of Cowles, Justice O’Connor provides the simple principle that must drive this analysis:

[38] While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

[34] In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal has provided clear appellate guidance in the application of this principle to the reality of Ontario’s pandemic-burdened trial courts:

[1] The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases' timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.

[35] Centres of the administration of justice in this Province are not created equally. There are disparities in resources both physical and human. There are differences in caseloads. (Louis, para. 26):

[26] 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. …

[36] The Court of Appeal applauded the efforts of Beaudoin J. in Louis for creating a trial schedule that provided a practical solution in keeping with the principle directed by r. 1.04(1). (Louis, para. 33).

Local Conditions

[37] Consistent with the Court’s direction in Louis, it is essential to consider the local conditions of the Superior Court in Windsor as they affect the road ahead.

[38] As has been recognized in the cases to-date, civil trials, particularly civil jury trials, must compete for trial time with family and criminal cases. The priorities as identified by this Court put civil trials in third place.

[39] The Windsor Courthouse has refitted its courtrooms as a result of the pandemic. However, social distancing dictates that the Courthouse has a public seating capacity of 78. It has only six courtrooms with a capacity over 15, inclusive of staff. Four of those six courtrooms have maximum capacity of 16-18. Only two courtrooms can accommodate a jury of 12. No jury deliberation rooms can accommodate 12 distanced jurors and so one of the courtrooms must serve as a deliberation room for a criminal trial. It is reasonable to conclude that between jury selection, deliberation and trial, a single criminal jury trial will consume three courtrooms. This indisputable scenario drove Pomerance J. to direct that civil jury trials could not be heard in Windsor until 2022.

[40] In Windsor there are 11 criminal jury matters awaiting trial. Of those trials, three are homicides. The total estimated trial time is 30 weeks. It is at this point reasonable to presume, based on the “red zone” status of Windsor, that jury trials in Windsor will not commence before late summer, but more likely in September, 2021. Local conditions will be monitored by the Court. No juries will be assembled until the safety of the public is assured.

[41] As mentioned, presently the within action finds itself on an assignment court list set for April 20, 2021. The list is comprised of all the outstanding civil jury matters awaiting trial. There are 34 matters on that assignment court list waiting to be assigned dates in 2022. The cumulative estimate of trial time is 94 weeks. This action will necessarily compete with those trials but only to the extent that ongoing criminal jury trials do not occupy all available courtrooms. In addition, there is family law litigation which cannot be tried virtually. Considerable delay in the hearing of this trial is inevitable.

[42] Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking a jury notice. (Louis, para. 22). As noted above, the plaintiffs have provided other examples of their actual prejudice occasioned by delays in this trial.

[43] The defendant’s argument that the plaintiffs have been significantly compensated over the past eight years, and so should not be in financial jeopardy, provides no evidence as to the needs of the family. The amounts paid, however, also provide an indication about the seriousness of the injuries. There is no suggestion offered as to why an impartial judge cannot determine the trial issues, including liability and causation, and quantum of damages. Surely the trial judge can adequately assess the expert evidence. It is hard to believe that a determination of causation will be assisted by seeing the plaintiffs approach the witness box, and that somehow a fair and just result is denied if the trial is held virtually.

[44] An argument that this jury notice should not be struck because the trial has only been adjourned once promotes the kind of complacency criticized by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[45] The “wait and see” approach advocated by the defendant has merit in some cases. It is not, however, a rule of law and where it is clear, a case should, for whatever reason, not be tried with a jury, there is no point to waiting and seeing. (Cowles, para. 72).

[46] A number of centres in the Southwest Region have successfully conducted civil trials by video conference. Windsor just completed a two-week trial. London is in the fourth week of a document-heavy virtual trial without video glitches. By the Fall of 2021, Windsor is scheduled to have the new document delivery platform “CaseLines”. There is no functional reason to shy away from a trial held by video conference.

[47] The ability of the Superior Court in Ontario to provide efficient, expeditious and cost-effective resolutions to civil litigation has been threatened for some time. It is now in a state of crisis. As directed by Brown J., it is essential that we recognize that “the “conventional trial” no longer exists as a norm” … Counsel and the judge [are] able to fashion trials tailor-made to the circumstances of each particular case. Our Court must use these trial building blocks to offer litigants creative, cost-attractive trial options …”. (George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001).

Conclusion

[48] In this case, in these times, if I am to provide a resolution of this litigation in the “most just manner possible” (Cowles, para. 39), I must strike this jury notice. That is my order.

[49] I am cognizant of the defendant’s concern about an undetermined trial date if the notice is struck. I am directing that the trial co-ordinator in Windsor consult with counsel and place this matter on an appropriate civil trial running list to commence in 2021. If a courtroom is unavailable there is no reason why this trial cannot proceed by video conference. The final determination as to the manner of the trial will be left to the trial judge.

[50] A trial judge should be available as most courtrooms will be occupied with criminal work. I am directing counsel consult each other to facilitate the use of technology and delivery of evidence, whether the trial is heard virtually or in-person. I am confident that counsel will work together to promote an effective trial. It may well be that one or more trial management conferences will need to be held with the trial judge to ensure a smooth trial process.

[51] As to the costs of this motion, I will receive written submissions no more than three typed pages (not including a bill of costs). The plaintiffs’ submissions to be within 30 days of the release of these reasons. The defendant’s submissions to be within 15 days thereafter. No reply is necessary.

Regional Senior Justice B. G. Thomas Released: March 17, 2021.