COURT OF APPEAL FOR ONTARIO

CITATION: Belton v. Spencer, 2020 ONCA 623

DATE: 20201001

DOCKET: M51814 (C68642)

Brown J.A. (Motions Judge)

BETWEEN

John Belton

Plaintiff

(Respondent/Responding Party)

and

Katie Spencer

Defendant

(Appellant/Moving Party)

Todd J. McCarthy and Olivier Guillaume, for the moving party

Allan Rouben, Laura Hillyer and James Page, for the responding party

Heard: September 29, 2020 by video conference

REASONS FOR DECISION

I. OVERVIEW

[1] The appellant, Katie Spencer, is the defendant in a personal injury action brought by the respondent plaintiff, John Belton, seeking damages for injuries he alleges he suffered when kicked by the respondent’s horse in May 2010. The appellant moves under r. 63.02(1)(b) of the Rules of Civil Procedure for an order staying the order of Sheard J. dated September 4, 2020 that struck out the parties’ jury notices (the “Order”): 2020 ONSC 5327.

[2] As a practical matter, granting the stay would result in a lengthy adjournment of the trial now scheduled to proceed before a judge alone starting next Monday, October 5, 2020. If the stay is not granted, the trial will proceed on Monday and it is likely that the issues surrounding the appellant’s appeal will not be considered until after the trial has concluded.

[3] For the reasons set out below, I dismiss the appellant’s motion for a stay.

II. BACKGROUND EVENTS

[4] The motion judge set out a detailed chronology of the steps in this action at para. 6 of her reasons. Briefly, the horse-kicking event took place on May 31, 2010. The action was commenced on May 30, 2012. Both parties requested trial by jury. The action was set down on May 23, 2017 and placed on the Hamilton trial list for the November 2018 sittings.

[5] As a result of the anticipated late delivery of a further plaintiff’s expert report, in June 2018 the action was traversed to the May 2019 sittings.

[6] In January 2019, the appellant sought an adjournment of the trial due to her travel plans. The action was traversed to the November 2019 sittings.

[7] In September 2019, the appellant advised that she intended to call an increased number of witnesses. As a result, it appeared that the action would have to be traversed to the March 2020 long trial sittings. Respondent’s counsel advised that he was not available for those sittings. In the result, the parties agreed to traverse the action to the October 2020 sittings.

[8] In November 2019, RSJ Arrell of the Central South Region directed that the action be placed on the Hamilton long trial sittings commencing October 5, 2020 for a trial by jury estimated to take six weeks.

[9] The COVID-19 pandemic hit Ontario in March 2020, at which time the Superior Court of Justice restricted the scope of its operations.

[10] During a conference call with RSJ Arrell in June 2020, the parties were advised that due to the COVID-19 pandemic, it was unlikely that civil jury trials would take place in 2020 and that the trial of this action would likely be delayed by 12 to 18 months.

[11] The respondent then moved to strike out the jury notices. The motion was heard in writing by the motion judge who released her reasons on September 4, 2020. She struck out the jury notices.

[12] The appellant filed a notice of appeal dated September 11, 2020 with this court.

[13] The respondent filed a notice of motion dated September 17, 2020 to quash the appeal on the basis that the Order was interlocutory in nature, so an appeal lay with leave to the Divisional Court.

[14] On the morning of September 23, 2020, the parties participated in a conference call with RSJ Arrell, who advised that the trial was first on the Hamilton non-jury trial list and would start on Monday, October 5, 2020 before a judge alone.

[15] On September 22, the appellant served a notice of motion returnable before a panel seeking to state a case before the Court of Appeal pursuant to r. 22.03.

[16] On September 24, the appellant served a notice of motion seeking to stay the Order.

[17] The respondent’s motion to quash the appeal and the appellant’s motion to state a case are scheduled to be heard by a panel of this court in November 2020.

[18] Both parties are ready for trial. However, the appellant wants a trial with a jury, not by judge alone.

[19] In her factum, the appellant describes the order that she seeks as follows:

The Defendant/Appellant seeks an Order staying the Order under appeal dated September 4, 2020 and in turn staying the action and adjourning the trial to a date in 2021 as directed by the Local Regional Senior Judge after the appeal process in this action and the appeal process in other actions involving the identical issue have been exhausted by way of a decision of this Court on appeal or by way of Special Case under Rule 22.

III. THE GOVERNING TEST

[20] The principles applicable to a motion to stay an order pursuant to r. 63.02(1) are well-known. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada articulated a three-part test for obtaining a stay of a judgment pending appeal: (1) is there a serious question to be tried (i.e., to be determined on the appeal); (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay?

[21] These components of the test are not watertight compartments; the strength of one may compensate for the weakness of another: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677. As well, they are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; Circuit World, at p. 677.

[22] As put by the authors of Sopinka and Gelowitz on The Conduct of an Appeal, 4th ed. (Toronto: LexisNexis, 2018), at §2.187, the factors to be considered by a motion judge “are generally designed to assess the prejudice to the parties if the order sought is granted or refused.”

IV. FIRST COMPONENT: IS THERE A SERIOUS QUESTION TO BE DETERMINED ON THE APPEAL?

A. Framing the serious question to be determined on the appeal

[23] In her notice of motion, the appellant frames the serious question to be determined in respect of the Order in the following terms:

There is a serious issue to be determined at the appellate level concerning the substantive right to trial by jury amidst concern about trial delay associated with the current COVID-19 pandemic.

[24] In her notice of appeal and counsel’s oral argument, the appellant elaborated on the serious question in two respects. First, the appellant submits that the motion judge, sitting in Chambers and not as a triage judge or trial judge, erred by permanently depriving her of the substantive right to trial by a jury on the eve of trial, without leaving open the possibility that the trial judge could direct a trial by judge and jury. Second, the motion judge failed to recognize the importance of the appellant’s substantive right to have a trial by jury by failing to properly balance that right with a proportionate concern for trial delay and the lack of prejudice to the respondent.

B. Analysis

The questions raised by the motion judge’s Order and reasons

[25] Even though the threshold for demonstrating a serious question for determination on the appeal is low, in my view the merits of the appellant’s appeal are weak.

[26] The substantive right to a civil jury trial, upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.

[27] As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, “it is not absolute and must sometimes yield to the practicality.”

[28] Given the breadth of the discretion afforded to the judge considering a motion to strike out jury notices, it is not surprising that the jurisprudence provides that appellate review of the exercise of the discretion to dispense with a jury is limited: Cowles, at para. 40. To justify appellate intervention, it must be shown that the motion judge’s “discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93, at pp. 69-70.

[29] Accordingly, to succeed on her appeal the appellant must show that in granting the Order the motion judge acted upon a wrong or inapplicable principle of law or exercised her discretion arbitrarily or capriciously.

[30] However, the only allegation of an error of law apparent in the appellant’s notice of appeal is that the motion judge did not adopt a “wait and see” approach to the motion to strike, thereby contradicting three decades of established authority in Ontario in which a motion judge defers to the trial judge the issue of whether to strike out a jury notice. In Cowles, this court described the “wait and see” approach at para. 70:

Over the years, courts have said that, in some cases, when confronted with a motion to strike a jury notice or discharge a jury, it is preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted. Experience has shown that in many instances the anticipated complexities of a case or other concerns giving rise to a motion to dismiss a jury do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so.

[31] Significantly, the court in Cowles went on to state that taking a “wait and see” approach is not a rule of law: at para. 71. The court observed that the Courts of Justice Act and the Rules of Civil Procedure “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”: at para. 71.

[32] The motion judge identified the principles in Cowles and how subsequent courts have interpreted them: at paras. 15 and 16. She examined how those principles should be applied in light of calls by the Supreme Court of Canada to remedy the delays endemic to the Canadian civil justice system and implement a “necessary culture shift” in the civil system: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 140; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.

[33] The motion judge explained how the motion to strike required her to “apply these entrenched principles to the reality [the court] now faces”: at para. 36. That reality has two components. First, on March 17, 2020 the Superior Court of Justice suspended civil jury selection and jury trials. Second, at the time the motion judge wrote her reasons, there had been “no new announcements detailing how and when the courts in this Judicial Region will be able to resume conducting civil jury trials”: at para. 8. That meant no judge would be assigned to hear the action as a civil jury trial until some uncertain date in the future. As a result, “if a ‘wait and see’ approach is taken, the delay in the scheduling of the trial that the plaintiff seeks to avoid, will have already occurred. For that reason, I find that the ‘wait and see’ approach to be unsuitable”: at para. 38.

[34] Assessing the motion judge’s reasons as a whole, it is not apparent that she exercised her discretion based on a wrong principle of law.

[35] It also is not apparent from her reasons that the motion judge exercised her discretion arbitrarily or capriciously. She considered the appellant’s submission that earlier delays by the respondent should not enable him to deprive the appellant of her substantive right to a trial, and she explained why she did not accept the submission: at paras. 39 to 42. Nor did she accept the appellant’s contention that pandemic-related delays would affect both jury and non-jury trials equally. She referred to the evidence before her that RSJ Arrell had informed the parties in June 2020 that a non-jury trial could be scheduled in late 2020 or early 2021. In her view, the evidence disclosed that it was more likely that a non-jury trial could be scheduled earlier than a jury trial: at para. 43.

[36] Weighing the various factors, the motion judge set out the results of her balancing exercise at paras. 45 and 47:

The parties are ready for trial. But for the pandemic, the trial would have proceeded in October 2020. The events that gave rise to the action are already a decade old. The defendant's right to a trial by jury, is outweighed by the need to provide the plaintiff with more timely access to justice.

COVID-19 has created additional challenges to ensuring access to justice, which, in this case, requires the court to strike the defendant’s jury notice in order to do what is possible to ensure an earlier and more efficient and more affordable trial.

[37] On its face, the motion judge’s balancing exercise does not appear arbitrary or capricious.

[38] Accordingly, in light of the standard of deference applicable to the motion judge’s exercise of her discretion, I regard the merits of the questions the appellant seeks to have determined on the appeal as weak.

Questions relating to the jurisdiction of this court

[39] There is one further aspect of the serious question component that I must consider.

[40] The respondent takes the position that the Order is interlocutory in nature and, therefore, the appellant has appealed to the wrong court – her appeal properly lies to the Divisional Court with leave: Courts of Justice Act, s. 19(1)(b). In response, the appellant submits that she has filed a notice of appeal in the Court of Appeal, her appeal has been assigned an appeal number, and she therefore has a proper appeal before this court unless and until a panel gives effect to the respondent’s motion to quash.

[41] I adopt the approach taken by my colleague, Simmons J.A., in Fontaine v. Attorney General of Canada, 2020 CanLII 64770 (Ont. C.A.), at para. 14, where she stated:

It is not for me, sitting as a single judge of this court, to determine whether this court has jurisdiction to entertain the appellants’ appeal. Nonetheless if I were persuaded that the Order under appeal was interlocutory, or even probably interlocutory, that would militate against granting the requested stay.

[42] The weight of authority holds that an order striking out a civil jury notice is interlocutory in nature.

[43] First, in Belende c. Greenspon, 2007 ONCA 448, 226 O.A.C. 175, leave to appeal refused, (2008) 2008 CanLII 2276 (SCC), 249 O.A.C. 398, a panel of this court held that such an order is interlocutory, stating, at para. 3:

Malgré le fait qu’un droit à un procès devant jury est un droit de fond, la decision d’annuler ou de ne pas annuler la convocation du jury ne détermine aucunement les questions en litige dans cette affaire. Plutôt, l’ordonnance du juge Reilly est sur une question collatérale. Voir Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). L’ordonnance ne met pas fin aux poursuites de Monsieur Ndem et ne limite pas les recours qu’il demande. Voir Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.); Huras v. Primerica Financial Services Ltd. (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (Ont. C.A.).

(unofficial Google translation)

Despite the fact that a right to a jury trial is a substantive right, the decision to set aside or not to set aside the jury notice[^1] does not in any way determine the issues in this case. Rather, Justice Reilly's order is on a collateral issue. See Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). The order does not put an end to Mr. Ndem's prosecution and does not limit the remedies he requests. See Buck Brothers Ltd. v. Frontenac Builders Ltd.(1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.); Huras v. Primerica Financial Services Ltd. (2000), 2000 CanLII 16892 (ON CA), 137 O.A.C. 79 (Ont. C.A.).

[44] The appellant argues that the decision in Belende is unclear and was incorrectly decided. I see nothing unclear in the decision; it remains the most recent decision of a panel of this court on the issue.

[45] Second, although the decision of this court in Stoicevski v. Casement (1983), 1983 CanLII 1679 (ON CA), 43 O.R. (2d) 436 (C.A.) did not involve an order striking out a jury notice, in the course of its reasons the panel identified a matter involving a jury notice as one that results in an interlocutory order: at p. 438.

[46] Third, a group of Divisional Court decisions treats orders striking out jury notices and orders dismissing motions to strike out jury notices as interlocutory: Benjamin v. Primerica Life Insurance Company et al., 2017 ONSC 6273, 12 C.P.C. (8th) 82 (Div. Ct.); Safranyos v. McHugh, 2015 ONSC 6146, 2015 CarswellOnt 14954 (Div. Ct.), at para. 7; Kayhan v. Greve (2008), 2008 CanLII 32832 (ON SCDC), 92 O.R. (3d) 139 (Div. Ct.); Forget v. Sutherland, [2006] O.J. No. 422 (Div. Ct.).

[47] Fourth, one of the classic articulations of the distinction between a final and an interlocutory order is that found in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). There, this court stated that a final order is not only one that finally disposes of the rights of the parties to the litigation, but an order may also be final if it finally disposes of a defence and thereby deprives “the defendant of a substantive right which could be determinative of the entire action”: at p. 324.

[48] The appellant contends that the frequent references in the jurisprudence to the right to a civil jury trial as a “substantive right” signifies that an order striking a jury notice is a final order as described in Ball v. Donais. As the respondent points out, the difficulty with that submission is that an order striking out a jury notice does not deprive the appellant of a substantive right that could be determinative of the entire action. Such an order merely directs a mode of trial. And, as this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial: see also, Cheung v. Samra, 2018 ONCA 923, 431 D.L.R. (4th) 18, at para. 7; Williams v. Grand River Hospital, 2016 ONCA 793, 134 O.R. (3d) 319, at paras. 5-6.

[49] Finally, the appellant points to a 1961 decision of this court in Such v. Dominion Stores Ltd., 1961 CanLII 173 (ON CA), [1961] O.R. 190 (C.A.). In that case, the plaintiff was granted leave to appeal to the Court of Appeal from the order of a High Court judge striking out a jury notice. However, that unusual route of appeal was the product of a provision of the The Judicature Act, R.S.O. 1960, c. 197, that was repealed in 1971[^2] and a practice convention regarding appeals from r. 400 of the former Rules of Practice[^3] (striking out jury notices) that disappeared long ago.[^4] As a consequence, the appeal routes described in the Suchdecision offer no assistance for a contemporary inquiry into whether an order striking out a jury notice is final or interlocutory.

Conclusion

[50] As mentioned, I regard the merits of the questions the appellant seeks to determine on the appeal as weak. The weight of the jurisprudence strongly suggests the Order probably is interlocutory. In those circumstances, I conclude that the “question to be determined on the appeal” factor militates against granting the requested stay.

V. SECOND COMPONENT: IRREPARABLE HARM

[51] The irreparable harm stage of the analysis focuses on the harm the moving party may suffer if the stay is not granted: RJR-MacDonald, at pp. 340-341. A court must ascertain whether a refusal to grant the stay could so adversely affect the moving party’s interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the stay motion: RJR-MacDonald, at p. 341. Irreparable, in this sense, refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured: RJR-MacDonald, p. 341. Irreparable harm may occur where the failure to grant a stay would render any subsequent appeal moot: Sopinka and Gelowitz, at §2.192.

[52] As I understand the appellant’s materials and submissions, she contends that if a stay of the Order is not granted, she will suffer irreparable harm in three ways.

[53] First, she submits, in effect, that the loss of her substantive right to a civil jury trial in and of itself constitutes irreparable harm. As deposed by one of her trial counsel, Christopher Missiuna, the appellant “has never waivered from her desire to exercise her substantive right to have this matter be heard by a jury.”

[54] I am not persuaded by this submission. Although the right to a civil jury trial is a substantive right, it is a qualified, not absolute, right, and is subject to removal where justice to the parties will be better served by the discharge of the jury. As this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial.

[55] If a stay is not granted and the trial proceeds next week, the appellant will have her defence adjudicated by a single judge, instead of a judge and jury. Both a single judge and a jury labour under the same duty to do justice impartially and dispassionately, based on the evidence before them. The appellant has not explained, in specific functional terms, what litigation disadvantage she might suffer if her rights are adjudicated by an impartial and independent judge instead of 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.

[56] Second, the appellant argues that if a stay is not granted and the trial proceeds, her appeal before this court will be rendered moot, causing her irreparable harm.

[57] Certainly, irreparable harm may arise where the failure to grant a stay may render an appeal moot: Thomson v. Alberta (Transportation and Safety Board), 2003 ABCA 322, 233 D.L.R. (4th) 562, at paras. 19-21. However, I do not regard this case as one where that consideration plays a role.

[58] The record discloses that the appellant’s decision to appeal the Order to this court, instead of seeking leave to appeal from the Divisional Court, was a tactical decision. It is apparent that prior to filing her notice of appeal in this court, appellant’s counsel were aware of the panel decision in Belende that held an order striking out a jury notice is interlocutory in nature. One of her counsel, Mr. Guillaume, was counsel on the Belende case.

[59] As well, through her pending motion to state a special case before this court, the appellant acknowledges that she seeks to jump over any lower levels of appeal since, in her view, the issue of the entitlement to a civil jury trial is one of province-wide importance that requires consideration by this court. As her counsel put it in oral argument, her appeal ultimately will end up in our court, so it makes more sense to deal with it here and now.

[60] Given the weight of authority that an order striking out a civil jury notice is interlocutory in nature, it was open to the appellant to move for leave to appeal the Order to the Divisional Court in a timely fashion and, in the context of that motion, seek a stay of the Order: r. 63.02(1)(b). Instead, the appellant has adopted the higher-risk strategy of appealing to this court. An appellant may take such a calculated risk. But, in those circumstances, I do not think it open to the appellant to argue that the possible mootness of her appeal to this court amounts to irreparable harm.

[61] Third, Mr. Missiuna deposes that if a stay is not granted, “it would be a waste of judicial resources to start or hold an entire eight-week non-jury civil trial starting on October 5, 2020, and during the time period that the trial takes place or after the trial has been completed, to have the Defendant’s appeal on the striking of the jury heard and determined in favour of the Defendant.” According to Mr. Missuna, it is likely that “hundreds of thousands of dollars in legal costs would have been incurred by doing an eight-week civil non-jury trial” before the appeal is heard.

[62] I regard this contention as speculative and the prospect of losing “hundreds of thousands of dollars in legal costs” as remote.

[63] For these reasons, I conclude that that the appellant has not demonstrated that she will suffer irreparable harm if a stay is not granted.

VI. THIRD COMPONENT: BALANCE OF CONVENIENCE

[64] The final component of the RJR-MacDonald stay test requires a determination of which of the two parties will suffer the greater harm from the granting or refusal of the stay, pending a decision on the merits: at p. 342. The harm which might be suffered by the respondent is dealt with at this stage of the analysis: RJR-MacDonald, at p. 341. The factors which must be considered in assessing the balance of inconvenience are numerous and will vary in each individual case.

[65] The appellant submits that the balance of convenience favours preserving the status quo of the parties’ agreement last year to proceed to trial before a judge and jury.

[66] The difficulty with the appellant’s submission is that it ignores the impact that the COVID-19 pandemic has had on the ability of the Central South Region of the Superior Court of Justice to offer civil jury trials during the balance of 2020. The evidence is undisputed that civil jury trials likely will not resume in the region for another 12 to 18 months.

[67] In light of that very material change in circumstances, the respondent re-assessed his desire for a jury trial and moved to strike out the jury notices so that a trial could take place. That was an understandable decision for a plaintiff to make who was injured a decade ago and whose action has yet to come to trial. By the time the October 5, 2020 trial date for a jury trial was set in November 2019, this action had languished in the civil justice system for far too long. For the plaintiff to wait a further 12 to 18 months for a civil jury trial to have his claim adjudicated would result in an unconscionable delay that should not be countenanced by our civil justice system.

[68] Nor do I accede to the appellant’s argument that the balance of convenience favours staying the Order so that an appellate court can figure out a province-wide solution to the challenges that the pandemic has imposed on the ability of certain regions of the Superior Court of Justice to offer civil jury trials.

[69] In addition to the decision of the motion judge, the parties have referred to four other recent decisions involving motions to strike out civil jury notices. Three are decisions of judges in the East Region: Louis v. Poitras, 2020 ONSC 5301; Coban v. Declare, 2020 ONSC 5580; and Higashi v. Chiarot, 2020 ONSC 5523. In all three cases, the jury notices were struck out, in large part because it was not known when civil jury trials would resume in the East Region. In Higashi, the motion judge left it open for the parties to return before him if it became known when a jury trial might occur before the action proceeded to a judge alone trial. In Coban, the jury notice was struck but the trial was adjourned for six months to enable the defendant to obtain further responding medical reports.

[70] A different result was reached in the fourth case, out of the Toronto Region, Jiang v. Toronto Transit Commission, 2020 ONSC 5727. In that case, Justice D. Wilson refused to strike the jury notice because Toronto is offering civil jury trials: at para. 8.

[71] The appellant submits that the cases display “conflicting decisions among lower Court Judges as to the correct approach to be taken”, which favours this court: granting a stay of the Order; by-passing the normal leave motion process to the Divisional Court or Court of Appeal; stating a special case; hearing from parties to other cases, as well as intervenors; and coming up with a province-wide solution to the issue of COVID-19’s effect on civil jury trials.

[72] I reject that submission for three reasons.

[73] First, the focus of this stay motion must be on the rights of the parties to this action.

[74] Second, the pandemic may well have subsided by the time the appellant’s lengthy proposed court-based provincial solution process reached a conclusion.

[75] Third, the resources available for civil jury trials vary from region to region in this province. I do not regard the cases referred to by counsel as conflicting in principle. Instead, they reflect the exercise of judicial discretion in differing circumstances. I do not see it to be the role of this court to interfere with or micro-manage the diligent efforts of various Regional Senior Justices of the Superior Court of Justice to juggle and prioritize the allocation of their resources during this extraordinary time.

[76] For these reasons, I conclude that the balance of convenience overwhelmingly favours not granting a stay of the Order and allowing the trial of this far-too-old action to proceed.

VI. THE OVERARCHING CONSIDERATION: IS IT IN THE INTERESTS OF JUSTICE TO GRANT A STAY?

[77] I have concluded that all three components of the RJR-MacDonald test favour refusing to grant a stay. That conclusion is reinforced by a holistic consideration of the three components in light of the overarching consideration of whether it is in the interests of justice to grant a stay.

[78] This action is long overdue for trial, concerning as it does events that took place 10 years ago. The parties are ready for trial and have been for some time. COVID-19 came out of left-field and upset the trial court’s scheduling apple cart. But the Central South Region can make a judge available this coming Monday to try this personal injury case. If not tried then, the record shows that it will likely be over a year before the matter can return before a civil jury. That would be an unconscionable wait. The qualified right to a civil jury trial cannot dictate such a result, as it would be completely contrary to the interests of justice. Consequently, I dismiss the appellant’s motion for a stay of the Order.

VII. DISPOSITION

[79] For the reasons set out above, the motion for a stay of the Order is dismissed.

[80] If the parties are unable to agree upon the costs of the motion, they may file brief written cost submissions, together with bills of costs, within 21 days of the release of these reasons.

“David Brown J.A.”

[^1]: Although Google translates “la convocation du jury” as the jury summons, the official French version of the Rules of Civil Procedure translates “jury notice” as “la convocation du jury”. [^2]: Section 26(1)(c) of the Judicature Act, R.S.O. 1960, c. 197 stated an appeal lay to the Court of Appeal from “any judgment, order or decision of a judge in chambers in regard to a matter or practice or procedure that affects the ultimate rights of any party, and, subject to the rules, from any other judgment, order or decision of a judge in chambers in regard to a matter of practice or procedure.” Section 26(1)(c) was repealed in 1971 by An Act to amend The Judicature Act, S.O. 1971, c. 57, s. 3. [^3]: Rule 398 at the time Such was decided. [^4]: In Such, at p. 195, this court stated that no review of an order made under r. 400 of the Rules of Practice striking out a jury notice was possible unless another judge of the High Court had granted leave.