Court File and Parties

COURT FILE NO.: CV-15-6241 CV-15-6178 DATE: 2024/04/05

SUPERIOR COURT OF JUSTICE – ONTARIO (North Bay)

BETWEEN: DARRELL MacISAAC and LYNN CONNOR, Plaintiffs AND: HARRY LOUNDS and LYNDA LOUNDS, Defendants

AND:

BETWEEN: LYNDA LOUNDS, Plaintiff AND: HARRY LOUNDS, Defendant

BEFORE: Justice J.S. Richard

COUNSEL: Michael Switzer and Mikolaj Grodzki, for the Plaintiffs, Darrell MacIsaac and Lynn Connor (CV-15-6241) Sandi Smith, for the Defendants Harry Lounds and Lynda Lounds (CV-15-6241) Sonam Sapra, for the Plaintiff Lynda Lounds (CV-15-6178) Sandi Smith, for the Defendant Harry Lounds (CV-15-6178)

MOTION TO STRIKE JURY NOTICE – REASONS FOR DECISION

[1] Two actions arose out of a motor vehicle accident that occurred on January 27, 2014: CV-15-6241 (the “Main Action”) and CV-15-6178 (the “Companion Action”). In May 2017, the Honourable Justice M.G. Ellies ordered that these two actions be tried together or one immediately after the other, or as otherwise directed by the trial judge.

[2] Trial dates have been fixed commencing on September 9, 2024, with a jury, for a maximum of six weeks. Liability and damages continue to be live issues in both actions.

[3] The Plaintiffs in the Main Action, Darrell MacIsaac and Lynn Connor, bring a motion to strike a jury notice on the basis that it will be impossible for these actions, or even just one of them, to be completed in 6 weeks with a jury. They argue that for this reason it should be converted to a judge-alone trial.

[4] The Defendants oppose the motion stating that leave should not be granted to bring this motion. Alternatively, they argue that if leave is granted, the motion should be denied on the basis that the Plaintiffs’ arguments are entirely speculative, that this motion is premature, and that there is insufficient evidence to support the Plaintiffs’ position. According to the Defendants, justice would be better served by a “wait and see” approach when there will be a higher degree of certainty related to the operation of the civil courts and the issues in dispute have been trial-managed.

[5] The Plaintiff in the Companion Action takes no position in this motion to strike the jury notice.

Facts

[6] The highlights of the procedural history following the motor vehicle accident of January 27, 2014, are as follows:

• 2015: The two actions are commenced. Defendants file Jury Notice.
• 2017: Justice Ellies orders that both actions will be tried together, or one immediately following the other, unless otherwise directed by the trial judge;
• February 2018: The Trial Record is filed. The court asks parties and counsel for trial availability;
• December 2019: Regional Senior Justice Ellies, orders that “these actions will be tried one after the other, with the MacIsaac action proceeding first”;
• September 2021: During one of multiple assignment courts attended by counsel, Regional Senior Justice Ellies advises that the North Bay jurisdiction has no jury sittings available to accommodate these matters. The transcript, entered into evidence, highlights Regional Senior Justice Ellies’ comments: it's easier for us to set judge-alone dates than jury trial dates, because we don't have to fit a particular sitting, and we can fit particular sittings even with judge-alone matters when we have enough judges, but the problem is I don't have enough judges to just plug it into one of the sittings next year.
• January 2023: Trial dates are fixed commencing September 9, 2024, for an absolute maximum of 6 weeks, for both actions.
• May 2023: Plaintiffs in Main Action file their Motion Record for this motion that includes a supporting affidavit of Mikolaj T. Grodzki dated May 23, 2023, indicating “To date, the court has been unable to accommodate a jury trial because the trial is estimated to last ten (10) weeks with the companion action expected to be of similar duration. The delay has been due to the COVID-19 pandemic and, subsequent to same, the limited judicial resources in the judicial region which makes the scheduling of a ten-week jury trial impossible.”
• May 29, 2023: I endorse that there are no long motion dates available to hear this motion to strike the jury notice in 2023, and the matters were returnable to September 2023 to set a date for this hearing in 2024.
• April 2024: This motion to strike the jury notice is finally heard.

[7] It should also be noted that these two matters, being ready for trial since 2018, were pre-tried three times, and have been in assignment court multiple times.

Issues

[8] These are the issues before the court at this time:

1. Should leave be granted to the Plaintiffs in the Main Action allowing them to bring this motion?
2. If so, should the jury notice of October 30, 2015, be struck thereby converting the Main Action (CV-15-6241) trial to a judge-alone trial?

Analysis

Leave to bring this motion

[9] Leave sought is governed by Rule 48.04(1) of the Rules of Civil Procedure:

… a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

[10] The Defendants argue that the motion to strike the jury is premature given the importance of the right to a jury trial. They urge, furthermore, that the Court ought to be prudent and apply the "wait and see approach", leaving the decision to strike the jury to the trial judge. They further argue that there is only speculation before the court, not evidence, with respect to estimated trial time, and since the matters are already set down for trial by jury for six weeks, they ought to proceed.

[11] The Plaintiffs, of course, argue the opposite and urge the court to draw on the court’s experience to conclude that completing these trials, or even just one of them, within six weeks is a forgone impossibility. For this reason, they argue, their motion cannot be said to be premature.

[12] As was summarized recently by the Honourable Madam Justice A.A. Casullo in Byard v. Reid, 2023 ONSC 5146, at para 21:

There are two lines of authority with respect to the proper test for granting leave to bring a motion after an action has been set down for trial. As the Court of Appeal set out in Horani (Litigation Guardian of) v. Manulife Financial Corp., 2023 ONCA 51, [2023] O.J. No. 228 at paras. 17-19:

Some courts have required the moving party to show "a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust": see, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 (Gen. Div.); for cases adopting Hill, see LML Investments Inc. v Choi (2007), 85 O.R. (3d) 351 (S.C.), at para. 10; Jetport v Jones Brown Inc., 2013 ONSC 2740, 115 O.R. (3d) 772, at paras. 68, 70 and 71; Lugen Corporation v Starbucks Coffee Canada Inc., 2014 ONSC 7141, at paras. 12, 30, 31; Denis v Lalonde, 2016 ONSC 5960, at para. 11; Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, at paras. 42-46.

Others have determined that leave be granted if the moving party can demonstrate that "the interlocutory step is necessary in the interests of justice" even in the absence of a substantial or unexpected change in circumstances: see, A.G.C. Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316, at paras. 21-23; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, 126, O.R. (3d) 154 (Mast.), at paras. 12, 14; Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, at para. 28; and Cromb v. Bouwmeester, 2014 ONSC 5318, at para. 35.

In yet other cases, courts have considered both tests and determined that they need not weigh in on the prevailing approach as the moving party could not meet the bar even under the broader "interest of justice" test: see for instance, Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950, at paras. 22-23; Chokler v. FCA Canada Inc. 2017, ONSC 4494, at para. 13.

[13] In Byard v. Reid, supra, leave to bring the motion to strike was denied. Justice Casullo concluded that there was no evidence before the court to explain the delay in bringing the motion to strike the jury notice. Justice Casullo further explained that counsel for the moving party argued that “lawyers are entitled to change their litigation strategy,” and that the responding party had not been advised in advance of scheduling court that the Plaintiff intended to strike the jury notice. Finally, in her reasons, Justice Casullo concluded that the moving party had not met the bar under the interest of justice test.

[14] In this case, there is affidavit evidence before the court explaining the delay in bringing this motion, as well as assignment court transcripts and court endorsements from as recently as 2023, setting an absolute maximum of six weeks, on the court’s own initiative, for trial sitting time for these cases due to limits on judicial resources in the region. In my view, the evidence meets both tests for leave to be granted under Rule 48.

[15] First, the pandemic imposed an unprecedented strain on court operations that were already backlogged, and it was not until 2023 that the parties were informed that they would be limited to 6 weeks for a jury trial, or both. I find that bringing this motion only a few months later does not constitute a delay.

[16] Secondly, even if one could have foreseen this unprecedented strain on court operations, these matters are already 9 years old, with the accident already well past its 10th anniversary. It is unequivocally clear that in these circumstances, this interlocutory step is just.

[17] Leave to bring the motion to strike the jury notice is, therefore, granted.

Should the jury notice be struck?

[18] Yes. Ideally, there would be no time constraints and limitations on judicial resources. It is clear to the court, based on the evidence presented, that this motion is not being brought as a change in legal strategy, but rather, as a means to ensure that the Main Action proceeds, that it proceed efficiently, and that it at least have an opportunity to be completed, without having to strike the jury notice midway through the trial if and when it becomes clear that completing it with a jury will be impossible, as was suggested by the Defence.

[19] The Plaintiff, Darrell MacIsaac, claims he sustained serious and permanent orthopaedic, psychological and cognitive impairments. He claims compensatory damages, including general damages, damages for income loss, damages for future loss of income, damages for costs of future care, and damages for home maintenance and housekeeping.

[20] The Defendants have thus far not made any payments to the Plaintiffs, and liability continues to be a live issue. The Plaintiffs’ evidence in support of this motion includes a list of 25 witnesses they intend on calling, all of whom are reasonably necessary in this set of facts. It also includes a reasonable and detailed breakdown of estimated days required for a jury trial, which amounts to 8 to 9 weeks for the first trial. All of this points to not only a possibility, but in fact to a likelihood, that the Main Action, the MacIsaac trial, with a jury, will take much more than the allotted six weeks.

[21] The test applicable for a motion to strike a Jury notice under Rule 47.02(2) of the Rules of Civil Procedure is whether justice to the parties would be better served by dismissing or retaining the jury. (See Cowles v. Balac, 2006 ONCA 349 at para. 28). The object of a civil trial is to provide justice between the parties, and therefore neither party should have an unfettered right to determine the mode of trial. (Cowles v. Balac, supra, at para. 71).

[22] In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal addressed the “unprecedented crisis” and the “overwhelm” of our civil justice system requiring judges “to respond to local conditions to ensure the timely delivery of justice” as a result of the pandemic. At para. 15, moreover, the Court of Appeal emphasized that “while a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.” The pandemic restrictions may have been lifted, and the pandemic may be considered “over”, but its effects on our courts persist and will continue to do so for some time.

[23] At the time of the accident, the Plaintiff, Darrell MacIsaac, was 54 years old and had significant experience as a sales representative for a pharmaceutical company. He is now 65 years old and relying on CPP and old age security for income. The Plaintiffs’ claim alleges that Mr. MacIsaac has been totally and permanently disabled as a result of the accident. The events in question are 10 years old. As time goes on, witnesses will become less reliable, and the potential recovery for loss of income erodes due to s.267.5 of the Insurance Act, R.S.O. 1990, c.I.8. The matters need to proceed, and to commence a trial with a jury knowing that the jury will almost certainly have to be dismissed partly though the trial because of time constraints is a waste of our already limited resources, and unnecessarily disrupts the lives and livelihood of jurors.

[24] The Defendants argue that this motion is premature and that the court ought to adopt a “wait and see” approach, as encouraged by our case law. With respect, the parties have been “waiting and seeing” since 2018, and it would be unjust to continue to do so.

Order

[25] Simply put, North Bay cannot accommodate a jury trial of this duration and complexity, let alone two of them. The parties have already been prejudiced enough by the age of the case. It is not only in the interest of justice to strike the jury notice, at this point, it has become necessary.

[26] For reasons already mentioned, the motion to strike the jury notice of October 30, 2015, is granted, and the trial of action CV-15-6241 shall proceed by judge alone on September 9, 2024. If the parties are unable to agree on costs for this motion, Darrell MacIsaac and Lynn Connor may submit a bill of costs within 30 days. All parties may file cost submissions, not exceeding 3 pages, double-spaced, within 30 days.

Justice J.S. Richard