Court File and Parties

COURT FILE NO.: 27189/16 DATE: 2023-11-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANN MARIA BORKOWSKI Plaintiff – and – ANDREW KARALASH, ROBERT RACICOT, and THE ECONOMICAL INSURANCE GROUP Defendants

COUNSEL: Brian A. Gualazzi, for the Plaintiff Frank Kolenko, for the Defendants

HEARD: August 10, 2023

Rasaiah J.

Reasons on Motion

Introduction

[1] This action was commenced by the plaintiff, Ann Maria Borkowski, on May 11, 2016, alleging injuries suffered from a motor vehicle accident that occurred on May 15, 2014, which occurred just over nine years ago.

[2] On May 15, 2014, the defendant, Andrew Karalash, is alleged to have reversed out of a driveway at 682 Wellington Street West and caused an automobile collision.

[3] The plaintiff was the driver of the vehicle that Mr. Karalash hit. She is alleged to be an innocent party who suffered injuries in a crash.

[4] The matter was set down for trial on September 24, 2019. The pre-trial conference occurred in June of 2020. The endorsement of McMillan J. following the judicial pre-trial confirms liability is not an issue. At that time, the plaintiff agreed that an eight to ten day jury trial was appropriate.

[5] The plaintiff in consultation with her counsel for various reasons, takes the position that it would be best for the matter to proceed under the Simplified Rules and instructed her counsel to move to strike the jury notice which is the subject of this motion. The plaintiff submits there has been a substantial and unexpected change in circumstances since her claim was commenced by way of ordinary procedure, including a defence medical, opinions received at the judicial pre-trial, the increased damage limit in the simplified procedure track, and delays created by the pandemic – the shutdowns and delays that have resulted in the court system because of the pandemic.

[6] The plaintiff submits and takes the position that her damages will likely not exceed the revised monetary limitations of Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). The plaintiff seeks the most expeditious and cost-effect means to resolve this case, which she states is to permit her to amend her statement of claim to limit her damages to $200,000.00 and to strike the jury notice.

[7] The defendants state they have been ready for trial since June 2020 and that one of the most significant causes for the delay in this matter moving to trial is the plaintiff herself and her actions. Namely, the plaintiff has twice requested later trial dates, despite the defendant indicating they were prepared to proceed. Recently, the plaintiff requested to move the trial to 2025. Accordingly, the defendants oppose leave being granted to bring the motion, or for the relief requested and/or the plaintiff’s requests to amend her claim to reduce her damages to $200,000.00; to have the matter transferred to Simplified Rules; and to strike the jury notice.

Discussion/Analysis

Summary of Facts

[8] This matter stems from a motor vehicle accident that occurred on May 15, 2014. The statement of claim was issued May 11, 2016, to allow time to pass to determine the plaintiff’s recovery, if any, from her injuries per plaintiff’s counsel’s practice at the time.

[9] The defendant delivered their notice of intent to defend and jury notice on January 5, 2017, eight months later. The statement of defence followed on February 13, 2017.

[10] The parties completed examinations for discovery on January 23, 2018.

[11] On April 27, 2019, the plaintiff attended a plaintiff medical legal examination with Dr. Brown. The plaintiff’s legal counsel received a copy of Dr. Brown’s report on July 14, 2019. In his report, Dr. Brown opines that as a direct result of the May 15, 2014 collision, The plaintiff suffers from the following injuries and impairments that substantially interfere with her ability to perform her pre-collision activities:

a. Chronic pain syndrome; b. Chronic pain left shoulder; c. Chronic pain lumbar spine; d. Chronic pain cervical spine; and e. Sleep disorder.

[12] The plaintiff served her trial record thereafter on September 24, 2019. The Trial Record was filed on October 10, 2019. At the time that the Trial Record was filed, the plaintiff, states her damages were reasonably believed to exceed $100,000.00 based on the information and medical reports they had obtained and the case was set down in the ordinary procedure track. The monetary maximum for Rule 76, Simplified Procedure at the time she issued her claim was $100,000.00.

[13] On January 1, 2020, Rule 76 of the Rules of Civil Procedure were amended to increase the monetary threshold for Simplified Procedure to $200,000.00.

[14] In March of 2020, the Covid pandemic was declared. For some periods, the court was closed and thereafter, with respect to civil matters of the nature of the Plaintiff’s claim, jury trials were suspended, and all civil matters were being dealt with virtually. Civil jury trials were suspended for some time.

[15] On April 1, 2020, the defence served plaintiff’s counsel with Dr. Boynton’s defence medical report. In his defence medical report, Dr. Boynton opines that the plaintiff’s injuries and impairments from the subject motor vehicle collision were not serious and did not substantially interfere with her daily activities.

[16] The parties attended a pre-trial conference on June 30, 2020, before McMillan J. At this conference, they agreed that the matter would proceed via a jury trial that would require eight to ten days. Both parties agreed they were ready to proceed to trial and no further interlocutory steps needed to be taken.

[17] Rule 50.09 of the Rules provides that no communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08. For purposes of this motion, as such, I have not considered anything that has not been set out by McMillan J. in his pre-trial conference endorsement. However, I do not think it is unacceptable for a party to state that, because of a pre-trial their position changed, which was the point that the plaintiff was trying to make. It matters not what was stated there for this motion and I agree that to consider same is not permissible. However, the fact that a pre-trial occurred and the fact that the plaintiff’s position changed is not impermissible when an issue requires explanation, as in this case; steps leading up to the request for leave and the test for leave. That I do not view as specifically disclosing communications with respect to any statement made at the pre-trial conference.

[18] After the pre-trial, and after the change in the monetary limit in general, plaintiff’s counsel began an assessment process involving several files over which they had carriage of, at their office, to determine how they should be proceeded with. There were many. I accept that. The plaintiff’s case was one of them. In consultation with her counsel, the plaintiff is stated to have instructed her counsel to proceed with a motion to seek to transfer to simplified procedure and her case was put on a long list of cases the office would being doing same with.

[19] A year after the pre-trial conference, a year and a half after the monetary limit change, plaintiff’s counsel wrote to defendants’ counsel requesting that the matter be transferred to simplified procedure without a jury. Counsel for the defendant questioned if the matter was appropriate for simplified procedure given the intended number of witnesses and the constraints for trials under simplified procedure.

[20] The parties attended assignment court on October 13, 2021, before Gareau J. They were offered a 2022 trial date, which the defendant states plaintiff’s counsel rejected and that the parties subsequently agreed to a March 2023 trial date. The parties differ on these facts. Plaintiff’s counsel did not agree that this court was setting civil jury trials for 2022 sittings. As a judicial officer of this court, I am not aware of a sittings for 2022, but aware of a sittings that was set for March of 2023, but of course whether there was a 2022 sittings is of no assistance as the sittings operate as a running list and there is no evidence before me to conclude that this case could have or would have proceeded, if there was a 2022 sittings.

[21] On February 23, 2023, the parties attended assignment court before Gareau J. The parties were told that they were third on the trial list. The plaintiff requested that the matter be traversed to the next jury trial sittings in 2025. The defendant indicated they were ready to proceed to trial. Gareau J. traversed the matter to the 2025 sittings. As a judicial officer of this court and given Gareau J.’s actions, I am aware that the next scheduled civil jury trial list will not occur until January 2025. Again, the sittings will operate as a running list and neither party provided me with evidence to conclude that this case will proceed if called given that fact. All I can conclude is that it is currently on a list for a sittings commencing January of 2025, a year and four months from the date this motion was argued and all parties (albeit wanting different tracks) are ready for trial.

[22] The defendant states that the plaintiff did not reference their intention to transfer the matter to Simplified Rules until shortly before the March 2023 trial date. The plaintiff disagrees.

[23] From the record and submissions, I understand that presently, there are five experts involved in this case, four of whom are witnesses of the Plaintiff. I appreciate the submission that if this matter was put on simplified procedure track that the issue can be dealt with, but the plaintiff does not deny that the defendant is entitled to cross-examine witnesses. There are several participant health care providers too, as well as some lay witnesses (family members), expected to provide evidence. The defendants state they have approximately seven hours of surveillance footage which would be introduced at trial and that there are over 1200 pages of medical records. The surveillance would be used to cross-examine the plaintiff as well has her experts regarding the underpinnings to their reports. Notwithstanding the plaintiff’s counsel asserts that they are confident the matter can be tried in 5 days. In addition to evidence, there will be opening and closing arguments to consider.

[24] The plaintiff did not provide a trial management plan to explain how the trial could proceed in five days, nor provide a list of witnesses that the plaintiff intends to call at trial. The plaintiff suggested that this can be dealt with after. In submissions, plaintiff’s counsel suggested that defendant’s witnesses would go into days four and five. This case also has a threshold motion for argument and determination.

[25] The plaintiff submits a two-week jury trial will be prohibitively costly to all parties. The expected legal costs of conducting a two-week civil jury trial will surpass the likely damages which is not proportional. A summary trial under Rule 76 is a proportionate procedure to adjudicate the issue. This procedure would be putting into practice Justice Karakatsanis’ decision in Hyrniak v. Mauldin, 2014 SCC 7, at para 2, for a proportional procedure tailored to the needs of the specific case, highlighting from this case a shift in favour of proportional procedure tailored to specific needs of a case.

[26] The plaintiff states that originally when the statement of claim was filed on May 11, 2016, the extent of plaintiff’s damages could not have been reasonably known and it was reasonable to expect that the damages would exceed $100,000. On March 27, 2019, the plaintiff attended a plaintiff’s medical legal examination with Dr. Richards. The plaintiff’s counsel received a copy of Dr. Richard’s report on April 1, 2019. In his report, Dr. Richards opines that as a direct result of the May 15, 2014 collision, the plaintiff suffers from the following injuries and impairments that substantially interfere with her ability to perform her pre-collision activities:

a. Frozen left shoulder with impingement; b. Chronic myofascial pain.

[27] The plaintiff asserts she faces a host of restrictions and limitations to her compensable harms and losses, including:

a) A deductible of $44,367.24 (2023) on general damages; b) 30% reduction on past loss of income; c) Deduction of all collateral benefits; and d) Nominal prejudgment interest.

[28] After the pre-trial before McMillan J., the plaintiff’s counsel reviewed the evidence, considered Dr. Boynton’s defence medical examination received on April 1, 2020, and after the pre-trial determined that the plaintiff’s damages were unlikely to exceed $200,000.00.

[29] On that basis, on July 26, 2021, the plaintiff’s counsel wrote to counsel for the defendant, proposing to limit the plaintiff’s damages to $200,000.00 and proceed with the action under the new amended Simplified Procedure rule by judge alone which is a year-and-a-half after the monetary jurisdiction changed.

Issues, Law & Authorities

Introduction

[30] The Courts of Justice Act was amended in January of 2020 to increase the monetary jurisdiction of the Simplified Rules from $100,000 to $200,000. Additionally, there are a number of procedural impacts, including:

(a) The trial is limited to five days; (b) Each party is limited to three experts; (c) Evidence is produced through affidavit only, subject to limited cross examination; (d) Costs are capped at $50,000 plus HST; (e) Disbursements are capped at $25,000 plus HST; and (f) Jury notices are only permitted in limited cases.

Andres v. Rasheid, 2022 ONSC 3317 at para 8 [Andres]; Edwards v. Alcock, 2022 ONSC 4099 at para 17 [Edwards]

[31] Due to the amendments, for matters where a Jury Notice was delivered prior to January 1, 2020, they can only be transferred to continue under Simplified Procedure if the Jury Notice is struck: Thomas v. Aviva, 2022 ONSC 1728 at para 50 [Thomas].

[32] Rule 48.04 states that a party who sets an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court: Rules of Civil Procedure, RRO 1990, O Reg 194, r. 48.04.

Leave

[33] Accordingly, the first issue to determine with respect to this motion is whether or not the plaintiff shall be granted leave to bring this motion. Generally, a party must demonstrate that there has been a substantial or unexpected change in circumstances in order to obtain leave form the Court: Andres, supra at para 9.

[34] The following factors are considered in determining whether to grant leave:

(a) What the party seeking leave knew when it delivered their trial record; (b) Whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial; (c) The purpose of requesting leave; (d) The nature of the relief requested; (e) Whether the party opposing leave would suffer prejudice; and (f) Whether the relief sought would likely be granted if leave were given: Edwards, supra at para 9.

[35] Similar to the plaintiffs in Andres v Rasheid, the plaintiff argued that when the claim was issued the Simplified Rules had not been amended. Additionally, the plaintiff points to efficiency as a reason to grant leave: Andres, supra at para 10.

[36] The defendants state that it is unlikely that a jury trial can fairly be completed within the required 5 days relying on a decision of Justice Brown of the Ontario Court of Appeal, who wrote in his recent decision on a motion to stay a Divisional Court order, Louis v. Poitras, 2020 ONCA 815, at para. 68, ““...By their nature, civil jury take longer than civil judge alone trials…”: Louis v. Poitras, supra, at para. 68.

[37] The plaintiff submits that by limiting her damages to $200,000.00 plus costs, disbursements and interest, the plaintiff is willingly to forego the possibility of a higher damages verdict in order to resolve her case in a more expeditious and cost effective manner.

[38] The plaintiff submits the principles of proportionality articulated by the Supreme Court of Canada, should be considered by the Court when deciding whether to allow the plaintiff to proceed to a trial by judge alone under Rule 76 of the Rules of Civil Procedure. Further, it is unknown at this time if civil jury trials will be able to proceed due to the ongoing COVID-19 pandemic backlog. In the event that a case does proceed, it is unlikely that the plaintiff’s case will be reached. Plaintiff’s counsel has assessed the plaintiff’s damages. I have not done an assessment and that is not my function. The defendants have not disputed the suggestion, and do not disagree, however, damages are not agreed to.

[39] The defendants submit that leave ought not to be granted. As in Andres¸ the changes to the rules have been in effect for over three and a half years at the hearing of this motion. The plaintiff has had years to move this matter to Simplified Procedure and did not actually move to do so until the week prior to the commencement of trial: Andres, supra at para 11.

[40] I do not see delay in bringing the motion as a factor to reject leave based on the facts of this case, including recognition of when jury sittings actually were occurring and when the next sittings are currently set for. An explanation has been provided. While it took time for the plaintiff to make this motion, I find the prejudicial factor is not at play. I am satisfied that at the time the trial record was filed the plaintiff believed her damages exceeded the then Simplified Procedure jurisdiction on damages. Factually, that limit did change and a subsequent medical report was received raising issue as to the assessment of her damages and these changes were unexpected. Certainly COVID was unexpected as well along with the backlog that exists in this Region. The request is clearly set out above as well as the nature of the request in terms of what the plaintiff is seeking. I will not repeat them. I am not of the view that prejudice in granting the leave itself will result to the opposing party for reasons stated in my analysis of delay. The relief if granted may result in the matter being heard sooner than later. The facts of this case support that the relief requested is certainly a relief worthy of consideration and that it may be granted. Accordingly, leave is granted.

The Jury Notice/Amendment of the Plaintiff’s Claim

[41] In deciding whether the Court should strike a jury notice, the Court must evaluate whether striking the jury would be in the best interests of justice.

[42] The plaintiff submits that the most expedient and just solution, is to order that the trial of this case to proceed as scheduled by judge alone; and a judge-alone trial under Rule 76. This would avoid any chance of the trial being delayed and reduce the disproportionate costs exposure for all parties. I agree that the defendants have done nothing to delay trial of this case. However, I also agree that the next sittings are in 2025 with no guarantee that the case will go ahead. There is no evidence that it would have in fact been heard sooner.

[43] I accept that after discoveries, further production of documents took place and after receipt of the expert reports, it became clearer that when taking into account the statutory deductible on non-pecuniary damages, the reduction on pre-judgment interest for motor vehicle crash cases, and the limit on past income loss claims to 70%, under the Ontario Insurance Act, the plaintiff’s damages may would not likely exceed the newly increased monetary threshold of $200,000.00 prescribed by Rule 76 of the Rules. I state this accepting that plaintiff’s counsel is experienced counsel in the subject matter of the claim and assessing strength and frailties of expert reports.

[44] In this case, the defendants have taken the position that the plaintiff’s net damages after all deductions are unlikely to exceed $200,000.00.

[45] There is nothing to contradict the plaintiff’s statement that she is in a financially precarious position. A potential costs award against her in the hundreds of thousands of dollars following a 2-week jury trial would be financially devastating to her and her family.

[46] I agree that the preparation for a civil jury trial is much more extensive than preparing for a judge alone trial. I agree that a civil jury trial inevitably takes longer to complete than a judge alone trial.

[47] As a judicial officer in this District, I can acknowledge that in the District of Algoma, there are only 3 judges sitting. There are currently homicide cases, numerous sexual assault cases, drug cases and other serious criminal cases that have priority to civil jury cases. The next civil jury sittings are in January of 2025.

[48] Rule 76.02(7) states that an action that was not commenced under Rule 76 Simplified Procedure, can continue under the rule if the consent of the parties is filed; or if no consent is filed but the plaintiff’s pleading is amended under Rule 26 to comply with 76(1) and, all claims comply with the Rule.

[49] In Crawford v. Standard Building Contractors Limited, 2020 ONSC 5767, the plaintiff sought to amend their statement of claim to limit the total damages to $200,000.00 and sought a direction that the claim would be governed by Rule 76 Simplified Procedure. The defendants opposed on the basis that proceeding under Simplified Procedure would be prejudicial to their interests. The Court granted the plaintiff’s motion and allowed the claim to continue under Simplified Procedure on the basis that the application of the procedure described under Rule 76.02(1) is mandatory. The Court held that the defendant could not opt out and that there existed no basis for removing the claim from Simplified Procedure once the plaintiff amended the statement of claim to comply with Rule 76(1) i.e. to limit damages to the monetary limits of the Rule: Crawford v. Standard Building Contractors Limited, 2020 ONSC 5767, at paras. 11 and 16.

[50] Rule 26.01 of the Rules states that on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[51] The plaintiff recognizes the costs consequences under Rule 76.13, for opting into Rule 76.

[52] I also note that s. 108(3) of the Courts of Justice Act gives the court discretion, on a motion, to order that the issues of fact or damages be tried without a jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108 (3).

[53] Rule 1.04(1) of the Rules states that the rules should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[54] Except for very limited and specific types of cases listed, the simplified procedure track does not permit a jury to adjudicate the case. The exceptions relate to cases that involve allegations more akin to personal attacks or involve intentional behaviour:

a. Slander; b. Libel; c. Malicious arrest; d. Malicious prosecution; and e. False imprisonment.

[55] Rule 76.02.1(3) mandates that if a jury notice is filed under the five limited exceptions noted in R. 76.02.1(2), that the action and any related proceedings are continued as an ordinary procedure.

[56] These Rule changes I agree recognize that civil jury trials take longer and are more expensive than non-jury civil trials and certain cases are not appropriate for the summary trial provisions set out in Rule 76. Motor vehicle accident claims are not one of them.

[57] The plaintiff submits that there appears to be just one case on record where a similar issue was considered, Joseph v. Budgell, 2020 ONSC 6526 and it is a decision that should be brought to the attention of the Court. I agree that for the reasons described below, this Master’s decision should not be followed. It is submitted:

a) This was an endorsement by a Master on a pre-trial. This was not a decision from a motion where the matters and issues were specifically addressed by any argument by the parties. b) Neither party in the Joseph case actually brought a motion to strike or keep the jury in that case. Master Sugunasiri made the decision on her own to convert the Simplified Procedure matter to an ordinary procedure trial. This would have the inevitable result of increasing the costs of the trial to both parties. c) Justice Brown of the Ontario Court of Appeal noted in Louis, the statutory right to a civil jury trial under s. 108 of the Courts of Justice Act is a qualified, not an absolute, statutory right. d) Further, in an earlier decision by Justice Brown of the Court of Appeal, Belton v. Spencer, 2020 ONCA 623 at para. 55 stated that a single impartial and independent judge labours under the same duty to justice to the parties:

Both a single judge and a jury labour under the same duty to justice impartially and dispassionately, based on the evidence before them. The appellant [defendant] has not explained, in specific functional terms, what litigation disadvantage she might suffer if her rights are adjudicated by an impartial and independent jury. Absent evidence of such specific litigation disadvantage and given the qualified nature of the right to a civil jury trial, I do not regard the prospect of proceeding to trial before a judge alone as causing irreparable harm.

[58] There is no specific functional litigation disadvantage to the defendant in having the case adjudicated by an impartial and independent judge instead of an impartial and independent jury.

[59] Justice Myers considered the issue of striking the jury in the case, MacLeod v. Canadian Road Management Company, 2018 ONSC 2186. In that case, Justice Myers referred to the Court of Appeal decision of Cowles v. Balac in confirming that neither party to an action 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, has the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

[60] The plaintiff points out that as the plaintiff’s injuries were caused from a motor vehicle crash, s. 258.5 of the Insurance Act applies, which states:

(1) An insurer that is defending an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile on behalf of an insured or that receives a notice under clause 258.3(1)(b) from an insured shall attempt to settle the claim as expeditiously as possible.

[61] The Oxford Lerner’s online dictionary defines “expeditiously” as “in a way that works well without wasting time, money etc.” (https://www.oxfordlearnersdictionaries.com)

[62] The plaintiff submits that this principle should apply not just to settlement of actions but also the dispute resolution procedure as well, and there is no reason why s. 258.5 requirement to settle expeditiously, should not also apply to the procedure in adjudicating contested matters governed by the Insurance Act. That is not something I need to decide but I appreciate the argument.

[63] In the present case, the plaintiff submits justice to the parties will be better served by trying this case without a jury under the summary trial provisions in Rule 76. The potential costs of the trial would be more proportionate the damages in dispute (maximum of $200,000.00) and provide greater access to justice.

[64] There is no evidence that the defendants will suffer any functional disadvantage by having the case adjudicated by a judge alone as opposed to a judge sitting with a jury. On the other hand, the plaintiff has presented evidence that is not challenged by the defence, that a 2-week civil jury trial could potentially be financially devastating to her and her family. The only argument from the defendant is that the Rule allows for a jury trial to proceed under Rule 76 if a jury notice was filed on the case before January 1, 2020. The plaintiff submits a technical argument based on the literal reading of the Rules should not trump doing what is right in the circumstances of the case. I agree.

[65] In the present case, based on the amount in dispute and the complexity of the issues, the proportionate result supports striking the jury; permitting the amendment; and ordering that the trial of this case proceed under the summary trial provisions set out in Rule 76.

[66] In Elkholy v. Margos, 2020 ONSC 2831, Master Short stated, in the context of COVID-19, that the circumstances surrounding a case will alter it, and further stated that his decision was being guided by Rule 1.04 in an environment that was unlikely to have been imagined by the drafters of the present Rules: Elkholy v. Margos, 2020 ONSC 2831, at paras. 38 and 55. I agree.

[67] Again, I agree that the courts have provided significant guidance regarding the striking out of jury notices in civil proceedings. The courts have stated that the right to a jury trial is a substantive right and should not be lightly interfered with but that the right to a jury trial in civil cases is not guaranteed, that context matters, and that although the trial to a jury in a civil case is an important right, it is not absolute: Giao v. Cunningham, 2020 ONCA 260, at para. 163 and 171, and Kempf v. Nguyen, 2015 ONCA 114, at para. 119.

[68] A jury trial is not a constitutional right, but is a procedural entitlement that, as discussed in past cases, is subject to contextual factors and reasonable limits in the interest of obtaining the most just, expeditious and least expensive determination of each proceeding.

[69] In Trial Lawyers Association of British Columbia v. Attorney General of British Columbia et. al., 2016 BCSC 1391, the Supreme Court of British Colombia cites Legroulx v. Pitre, 2009 ONCA 760, stating that the Charter only confers a right to a jury in certain criminal matters. The Court held that the Charter does not confer a right to a jury trial in civil matters and that ss. 7 and 15 of the Charter cannot be interpreted to confer such a right. The court further cited Waymark v Barnes, stating that there is no unqualified fundamental right to a civil trial by jury: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2016 BCSC 1391, at paras. 78-81; Legroulx v. Pitre, 2009 ONCA 760, at para. 3; Waymark v. Barnes, at para. 9.

[70] The question of a right to a jury trial, in a civil context, was discussed at length by the court in MacLeod v Canadian Road Management Company. In that case, the court summarizes an approach outlined by the Court of Appeal, which states that the mode of trial is simply a facet of the overarching goal of doing justice. In MacLeod, the court confirms that although the case law discusses a “right to a jury”, the right is not constitutional – it is simply a “prima facie procedural entitlement” where, “like all procedural rights, it yields to the overriding interests of justice it is intended to serve.” Further, the court states the following:

[30] Since 2014 and the seminal decision of the Supreme Court of Canada in Hryniak, we also know that to be just a civil resolution of a dispute must not either take too long or be too expensive. As expressed by Karakatsanis J.:

[23] …Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.

[24] However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. …The cost and delay associated with the traditional process means that…the trial process denies ordinary people the opportunity to have adjudication...

[25] Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.

[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. [Emphasis added. Notes omitted].

[31] Proportionality is a vital component of the civil justice system. It is enshrined in Rule 1.04 (1.1) of the Rules of Civil Procedure, RRO 1990, Reg 194 as an omnipresent consideration in the assessment and balancing of all procedural issues. Mr. Rachlin argues, with much logical force, that in addition to complexity alone, if it can be shown that a jury trial will take much longer or cost much more than a non-jury trial; or if, because of its added length or just because it is a jury trial, systemically, it will not be held until a much later date, then the use of a jury trial may fail to meet the interests of justice. I agree.[Emphasis added]: MacLeod v. Canadian Road Management Company, supra, at paras. 29-32.

[71] Striking a jury notice is a question of judicial discretion, which may be exercised for just reasons. According to Cowles v Balac, a court must decide whether the moving party has shown that justice to the parties will be better served by discharging the jury. The court further states that while the test confers broad discretion on a court confronted with such a motion, it is a sensible test. The court states:

[38] 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 trying a case without a jury.

[71] Obviously there is merit to taking a “wait and see” approach in some cases, and perhaps in most. However, taking such an approach is not a rule of law. The Courts of Justice Act and the rules contemplate that a judge may strike a jury notice even before a trial has begun and that a trial judge may dismiss a jury before beginning to hear the evidence. [Emphasis added]: Cowles v. Balac, supra, at paras. 35-40 and 71.

[72] Recently, Justice Brown in Louis v. Poitras, confirmed that there is no litigation disadvantage that a party will suffer if their rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury: Louis v. Poitras, supra, at para. 70.

[73] I am not satisfied that the defendants will suffer any litigation disadvantage by having this case adjudicated by an impartial judge instead of an impartial jury and these are just reasons to strike the notice. The plaintiff has provided specific evidence that she will suffer prejudice in having this case adjudicated by a jury:

a. Increased costs of the trial; b. If the trial proceeds as a summary trial, the inability to properly present the evidence to a jury within the limited summary trial provisions; c. Increased risk to her personal health and the health of her family for having to attend the trial in person if the matter proceeds before a jury; and d. Potential for more delay.

[74] The plaintiff has shown that justice to the parties will be better served by the discharge of the jury.

[75] The defendants’ delay arguments, while valid, have no bearing in my respectful view to determining how justice to the parties will not be served by the discharge of a jury.

[76] This case is procedurally suitable for a summary trial under Simplified Procedure. Liability will not be an issue at trial; damages and threshold will be. Threshold is dealt with by motion.

[77] This case can feasibly be heard under the Simplified Procedure. While there are a number of witnesses and videos to contend with, there are many mechanisms that can be discussed/used to narrow oral testimony including but not limited to preparation of affidavits and/or agreed statements of fact. Examination in chief by affidavit and restrictions on cross-examination can reduce the amount of time needed. Further directions can be placed by a judge including but not limited to the filing of joint exhibit books, excerpts of videos, and/or service of requests to admit facts and/or documents that could shorten the trial evidence.

Conclusion

[78] The motion is granted.

[79] The jury notice is hereby struck.

[80] The plaintiff is permitted and shall amend her claim to reduce her damage claim to fit the monetary jurisdiction of the Simplified Procedure.

[81] The trial shall proceed before a judge alone under the summary trial provisions of Rule 76.

Rasaiah J.

Released: November 3, 2023