COURT OF APPEAL FOR ONTARIO
CITATION: Louis v. Poitras, 2020 ONCA 815
DATE: 20201215
DOCKET: M51956 (M51943)
Brown J.A. (Motion Judge)
BETWEEN
Firma Louis and Marcdere Louis
Plaintiffs
(Moving Parties)
and
Jacques Poitras and Security National Insurance Company
Defendants
(Responding Party)
AND BETWEEN
Firma Louis
Plaintiff
(Moving Party)
and
TD Insurance Meloche Monnex and Security National Insurance Company
Defendants
(Responding Parties)
Joseph Y. Obagi and Elizabeth A. Quigley, for the moving parties
Barry Marta and Andrew Cottreau, for the responding party Security National Insurance Company
Joseph Griffiths, for the responding party TD Insurance Meloche Monnex
Heard: December 11, 2020 by video conference
REASONS FOR DECISION
I. OVERVIEW
[1] The plaintiffs, Firma Louis and Marcdere Louis (the “Plaintiffs”), move for a stay of the Divisional Court’s order, dated November 16, 2020, reinstating the defendants’ jury notices (the “DC Order”), pending the hearing of the Plaintiffs’ motion for leave to appeal to this court: Rules of Civil Procedure, rr. 61.03.1 and 63.02(1)(b). For the reasons set out below, I grant the stay and make certain directions regarding the hearing of the leave motion.
II. BACKGROUND EVENTS
[2] Ms. Louis was involved in a motor vehicle collision in Ottawa on May 9, 2013. Two actions have resulted: a tort action and an accident benefits action. Jury notices have been filed in each action. The defendant TD Insurance Meloche Monnex (“TD Insurance”) issued the insurance policy in the accident benefits action. That policy was underwritten by the defendant Security National Insurance Company (“Security National”), who is also the Plaintiffs’ OPCF-44R insurer.
[3] The trial of the tort action was scheduled for May 2018. It was adjourned because Plaintiffs’ counsel was in trial on another matter. As a result of a subsequent trial management conference, the two actions were ordered tried together in a 10-week jury trial commencing April 20, 2020.
[4] COVID-19 then intervened. The April 20, 2020 trial date was lost. No one disputes that but for the pandemic the trial of both actions would have proceeded this past April. All parties are ready for trial.
[5] In July, the Plaintiffs moved for an order striking the jury notices in both actions. The motion judge, Beaudoin J., heard the motion in late August and granted the order on September 9: 2020 ONSC 5301 (the “MJ Reasons”). Civil jury trials were not being scheduled at that time in Ottawa, but judge-alone trials of three weeks or less were available within the following six months. That prompted the motion judge to craft a very creative solution. He ordered the trial to proceed in three-week tranches and directed the parties to attend the next Trial Management Court to obtain the first available date for trial: at paras. 59-63.
[6] At an October 9, 2020 case conference before Master Kaufman, the first three-week tranche of the trial was scheduled to commence on February 22, 2021. The case conference master noted: “Counsel’s availability was canvassed, and they are all available for a first three-week ‘tranche’ commencing February 22, 2021. Mr. Griffiths would be double-booked, but expects his other matter to settle.”
[7] The defendants sought leave to appeal the motion judge’s order to the Divisional Court. That court expedited the matter and arranged to hear both the leave to appeal and appeal at the same time. The hearing was held on November 2, 2020.
[8] The Divisional Court released its reasons on November 16: 2020 ONSC 6907 (the “DC Reasons”). It granted the defendants leave to appeal and allowed the appeal. The Divisional Court concluded that the motion judge had exercised his discretion to strike out the jury notices in an arbitrary fashion: at para. 2. The effect of the DC Order was to reinstate the jury notices in both actions. The Divisional Court stated that the appeal was granted “without prejudice to the motion [to strike] being renewed whenever information is available to be considered by the court as to either prejudice to the parties or the overall administration of justice”: at para. 81.
[9] On November 17, 2020, the Plaintiffs filed a notice of motion for leave to appeal the DC Order to this court. At the same time, they initiated this motion to stay the DC Order.
[10] The following day, the parties were back in Ottawa Trial Management Court before Gomery J. The defendants Security National and TD Insurance (the “Defendants”) sought to vacate the February 22, 2021 date. Gomery J. refused, writing:
In my view, Master Kaufman anticipated that the appeal to the Divisional Court would finally resolve the question of whether the actions would be tried by judge and jury or by judge alone. The Court’s decision did not do so. The plaintiff may obtain a stay of the order or leave to appeal on an expedited basis. Alternatively, [she] may obtain a hearing, on an urgent basis, to re-argue [her] motion to strike.
I conclude that the defendants will not suffer any prejudice if the February 2021 trial dates remain in place for another month. The actions shall be listed on the next [Trial Management Court] on December 16, 2020, at which time the presiding judge can revisit whether the trial dates should be vacated.
[11] On November 20, 2020, the Plaintiffs initiated a second motion in Ottawa seeking to strike out the jury notices.
[12] Consequently, these actions will be back in Ottawa’s Trial Management Court on December 16 and in motions court on December 17, 2020. As matters now stand, the court in Ottawa has not vacated the February 22, 2021 trial date.
[13] Plaintiffs’ counsel advised that a settlement was recently reached with the defendant Jacques Poitras.
[14] The remaining Defendants both oppose the Plaintiffs’ motion for a stay of the DC Order.
III. THE GOVERNING TEST[^1]
[15] The principles applicable on a motion to stay an order pursuant to r. 63.02(1)(b) are well-known. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, the Supreme Court of Canada articulated, at p. 334, 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?
[16] The factors 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.
[17] 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.”
[18] Since this is a stay motion in the context of a motion for leave to appeal to this court, to the standard RJR-MacDonald factors must be added a consideration of the principles governing applications for leave to appeal from orders of the Divisional Court, set out in Sault Dock Co. Ltd. v. Sault Ste. Marie (City) (1972), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.).
IV. FIRST FACTOR: SERIOUS QUESTION TO BE DETERMINED
A. Assessing the serious question issue arising from RJR-MacDonald
[19] The Plaintiffs submit that there is a serious question to be tried, namely: whether there was any basis in fact or law for the Divisional Court to (a) conclude that the motion judge acted “arbitrarily” in granting the Plaintiffs’ motion to strike the jury notice and (b) interfere with the exercise of discretion by a Superior Court judge who found that justice would be better served by striking the jury notice.
[20] I am persuaded by the Plaintiffs’ submission.
[21] Appellate review of the exercise of a judge’s discretion to dispense with a jury is limited: Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 40, leave to appeal refused, [2006] S.C.C.A. No. 496. This is not surprising, given the breadth of discretion afforded to a judge considering a motion to strike out jury notices. 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.), at pp. 69-70, leave to appeal refused, [1985] S.C.C.A. No. 93.
[22] The Divisional Court summarized its reasoning for setting aside the motion judge’s order at para. 2 of its reasons, where it wrote, in part:
The decision of the motion judge to strike the jury notice was attributed, by him, solely to the presence of delay without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice. There was nothing to which he referred that considered the particular circumstances. In the absence of such information, the decision was arbitrary. The recognition of the presence of delay, without more, is not enough. We grant the appeal but without prejudice to a further motion seeking to strike the jury notice with evidence that would provide what was missing in the decision of the motion judge.
[23] The Divisional Court went on to state that:
(i) “What is plain is that there was no foundation for a determination by the motion judge that the delay created by the pandemic caused any prejudice to the parties such that the jury notice could be struck”: at para. 23;
(ii) “[A] general assertion of delay is not enough. It may be that in the presence of a broad based, court-wide delay some cases can be accommodated”: at para. 50;
(iii) “In the case being decided, the judge relied only on the fact of delay without any evidence applicable to the specific situation”: at para. 55;
(iv) “It is the absence of information that informs the particular situation as to either or both of justice between the parties or the administration of justice that renders the decision of the motion judge arbitrary”: at para. 64; and
(v) “The mere statement of delay or the implication of its presence is not enough. There must be some evidence or other indication that contributes to prejudice to the parties or concerns for the administration of justice. In this case the Judge relied on delay removed from the specific concerns of the parties”: at para. 66.
[24] It is very difficult to reconcile these findings by the Divisional Court with the reasons actually written by Beaudoin J. With respect to the current and future availability of civil jury trials in Ottawa, the motion judge stated:
(i) In Ottawa, prior to the court’s temporary suspension of operations in March 2020 as a result of the pandemic, there was a growing backlog of civil cases. If a trial was expected to take three or more weeks, parties would typically wait at least two years after setting a civil case down to proceed to trial, whether the trial was judge-alone or with a jury: at para. 1;
(ii) In June 2020, formal notice was given to the Ottawa bar that civil jury trials would not proceed until January 2021 at the earliest: at para. 6;
(iii) At the time of the motion, only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers and no plan had been finalized to accommodate jury trials: at para. 10;
(iv) The conversion of a jury assembly room into a jury deliberation room in the Ottawa courthouse would permit only a single jury trial to proceed at any given time: at para. 11;
(v) It was unknown when or how a new jury trial might be heard in this matter: at para. 58; and
(vi) At the most recent Trial Management Court, Gomery J. had advised that the court could readily fix hearing dates for civil non-jury trials of three weeks or less within the next six months: at para. 59.
[25] The motion judge also referred to Higashi v. Chiarot, 2020 ONSC 5523, which had been released eight days earlier, on September 1. In Higashi, Roger J.’s oral reasons set out at length the status of the availability of civil jury trials in Ottawa.
[26] No party has questioned the accuracy of the information recited by the motion judge. Civil jury trials were not being held in Ottawa at the time of the August motion. Nor were they being held or scheduled at the time of the hearing before the Divisional Court or prior to the release of its reasons. In an October 13, 2020 memorandum, East Region R.S.J. MacLeod stated that “civil jury trials have already been suspended for the rest of the year” and, in a November 6, 2020 memo, the R.S.J. announced that “civil jury trials remain suspended until further notice.” That remains the case today.
[27] In light of the information referenced by the motion judge set out in para. 24 above, it is very difficult to understand how the Divisional Court could conclude, as it did at para. 2 of its Reasons, that the decision of the motion judge was made “without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice”, or how it could conclude, at para. 50, that “a general assertion of delay is not enough. It may be that in the presence of a broad based, court-wide delay some cases can be accommodated”.[^2]
[28] The motion judge clearly explained the evidence, or information, that he was relying on. The Divisional Court was prepared to accept information of a similar nature, although perhaps not from identical sources, in its commentary on decisions concerning other COVID-19-strike-jury-notice motions: see the comments of the Divisional Court on the motion decisions in Belton v. Spencer, 2020 ONSC 5327, stay denied, 2020 ONCA 623 (DC Reasons, at paras. 31-33 and 53-54); Jiang v. Toronto Transit Commission, 2020 ONSC 5727 (DC Reasons, at paras. 48-49); Higashi (DC Reasons, at paras. 55-57); MacDougall v. Sisley, 2020 ONSC 6632 (DC Reasons, at paras. 59-63).
[29] As well, the motion judge stated that it was “unknown when or how a new jury trial may be heard.” This was correct at the time of the motion; correct at the time of the Divisional Court hearing; and correct today.
[30] With respect to the specific circumstances of the parties, the motion judge wrote:
(i) The actions were commenced in 2015: at paras. 13 and 20;
(ii) The May 2018 trial date for the tort action was vacated because Plaintiffs’ counsel was at trial on another matter: at para. 14. As well, the situation of counsel for Mr. Poitras at the time raised “doubt as to whether this matter could have proceeded on the original May 2018 date”: at para. 16;
(iii) The trial of both actions was scheduled to start on April 20, 2020 and run for 10 weeks: at para. 18;
(iv) The parties were ready to proceed on that date, but the trial was adjourned because of the effect of the pandemic on court operations: at para. 21;
(v) The Plaintiffs had waited seven years for the trial of their actions: at para. 58;
(vi) All parties were ready for trial: at para. 58;
(vii) Any delay likely would require costly updated expert reports: at para. 58; and
(viii) It was not known when or how a new jury trial might be heard: at para. 58.
[31] Reviewing the information referenced by the motion judge, set out in para. 30 above, it is also very difficult to understand how the Divisional Court could conclude, as it did at para. 2 of its Reasons, that the decision of the motion judge was made without information about the “particular circumstances” of the case.
[32] Finally, it is difficult to understand how the Divisional Court could conclude, in para. 23, that: “What is plain is that there was no foundation for a determination, by the motion judge, that the delay created by the pandemic caused any prejudice to the parties such that the jury notice could be struck”. To the contrary, it is clear from the motion judge’s reasons that the Plaintiffs had already waited seven years since the collision for the trial of their actions and, in light of the impact of the pandemic on local court operations, “[i]t was not known when or how a new jury trial might be heard”. Based on that foundation, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46.
[33] That was a legally permissible finding. Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice. This should not be a surprising proposition. Part of the “service guarantee” to the public made in r. 1.04(1) is that courts will work to provide the “most expeditious … determination of every civil proceeding on its merits” (emphasis added). Delay in providing trial dates undermines that service guarantee. The late Willard Z. Estey, a former justice of the Supreme Court of Canada, captured the point well when he stated that “delay in the settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community”: MJ Reasons, at para. 48.
[34] For those reasons, I conclude that the Plaintiffs have raised a very serious question to be tried as to whether there was any basis in fact or law for the Divisional Court to conclude that the motion judge acted “arbitrarily” in granting the Plaintiffs’ motion to strike the jury notice.
B. Considering the Sault Dock principles
[35] But, does that get the Plaintiffs over the “serious question” threshold in the context of a motion for leave to appeal an order of the Divisional Court to the Court of Appeal?
[36] The Defendants submit that it does not. They argue that, since the motion judge’s decision was set aside because it was not based on evidence, the Divisional Court’s decision applies only to the parties, without any broader application. In other words, they contend that the Divisional Court’s decision does not raise issues that normally would attract leave to appeal to this court under the Sault Dock principles.
[37] This court set out the applicable test in Sault Dock, at pp. 480-81:
While it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court, to carry out what is considered to be the purpose of the Legislature, the Court of Appeal should be satisfied before granting leave that the matter will present an arguable question of law or mixed law and fact requiring of the Court consideration of matters such as the following:
(a) the interpretation of a statute or Regulation of Canada or Ontario including its constitutionality;
(b) the interpretation, clarification or propounding of some general rule or principle of law;
(c) the interpretation of a municipal by-law where the point in issue is a question of public importance;
(d) the interpretation of an agreement where the point in issue involves a question of public importance.
The Court will of course consider also cases where special circumstances would make the matter sought to be brought before the Court a matter of public importance or would appear to require that in the interest of justice leave should be granted – such as the introduction of new evidence, obvious misapprehension of the Divisional Court of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice.
The outlining of the foregoing criteria is not to say that in cases in which there is clearly an error in a judgment or order of the Divisional Court, it is not the duty of the Court of Appeal to grant leave so that it might correct the error. However, the possibility that there may be error in the judgment or order will not generally be a ground in itself for granting leave. [Emphasis added.]
[38] In my view, there are strong grounds to believe that the serious question the Plaintiffs raise satisfies the Sault Dock test in two respects.
[39] First, as I have mentioned, it is quite difficult to understand how the Divisional Court could reach the conclusions summarized in para. 2 of its Reasons given the motion judge’s findings set out in paras. 24 and 30 above. The serious question advanced by the Plaintiffs arguably falls within the Sault Docks category of an “obvious misapprehension of the Divisional Court of the relevant facts.”
[40] Second, the serious question raised by the Plaintiffs also arguably engages a matter of public importance that this court should consider in the interest of justice. The statutory right to a civil jury trial is a qualified right, subject to the power of the court to order an action to proceed without a jury: Belton (C.A.), at para. 26; Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171. 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. 37-38.
[41] That “rather broad discretion” currently is exercised by judges in an environment influenced by two key factors, one external to the court system and one internal to it.
[42] The external factor is the reality of COVID-19’s profound effect on the means by which Ontario courts can continue to offer their services to the public.
[43] The internal factor stems from the Supreme Court of Canada’s description of our court system as one marked by a mind-set of “complacency” and a willingness “to tolerate excessive delays”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 4 and 29. In Jordan and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court called for a “culture shift” (Hryniak, at para. 2) and a “change of direction” (Jordan, at para. 5). While the long duration of the pandemic has many actors in the civil justice system desiring to “return back to normal”, one must not forget that the “good old ways” caused unacceptable delays and are the very ways that the Supreme Court in Hyrniak and Jordan has charged the court system to discard.
[44] As well, as Myers J. observed (in a pre-pandemic context) in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 32:
The court must react to the realities facing civil litigants and the civil justice system. It is not news to anyone that delays and the high cost of civil proceedings impair access to justice. The Supreme Court has declared that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.” Systemic issues like the insufficient judicial compliment, resource deployment away from civil cases as a result of R. v. Jordan… and other pervasive funding concerns affect the realities facing civil litigants. The court’s ability to provide long civil jury trials in an expeditious, affordable, proportionate way may be suffering as a result. Where this is so, the systemic realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term. [Emphasis added.]
[45] To those realities must now be added the significant impact that the COVID-19 pandemic has had on the operations of Ontario’s courts.
[46] When looked at in that context, the serious question for appeal advanced by the Plaintiffs raises a matter of public importance, which I would articulate in two related ways:
(i) In the age of Hryniak, Jordan, and now COVID-19, should intermediate appellate courts – such as the Divisional Court and the Court of Appeal – support or restrain efforts by motion judges, exercising their discretion regarding the timing and mode of determining a civil proceeding, to find solutions that achieve the fundamental mandate of r. 1.04(1), namely the “most expeditious and least expensive determination of every civil proceeding on the merits”?
(ii) Or, put more colloquially: Are intermediate appellate courts agents of change in shifting away from the justice system’s culture of complacency toward delay, or is their task simply to protect the status quo?
[47] These are not merely questions of public importance raised by the Plaintiffs’ motion for leave to appeal; they are existential questions about the future viability of Ontario’s civil justice system.
[48] Accordingly, I am satisfied that the serious question raised by the Plaintiffs meets the threshold test on a stay motion set by RJR-MacDonald, applied in light of the Sault Dock principles.
V. SECOND FACTOR: IRREPARABLE HARM
The governing principles
[49] 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.
Positions of the parties
[50] The Plaintiffs submit that, having already waited two years for their April 2020 trial date and now needing to wait another 10 months for their February 2021 trial date, they risk losing the February date unless a stay is granted. They submit that this delay, without any indication as to when a civil jury trial could or would be held, amounts to irreparable harm for purposes of the RJR-MacDonald analysis.
[51] As well, the Plaintiffs submit that the longer their trial is delayed, the more Ms. Louis’s claim for income loss will be eroded by operation of ss. 267.5(1) 2. and 3. of the Insurance Act, R.S.O. 1990, c. I.8. Those provisions direct that 30% of all income loss suffered “before the trial of the action” is not recoverable: DC Reasons, at para. 15. The motion judge acknowledged this impact of delaying the trial but assigned it no weight in his analysis: at paras. 25 and 46.
[52] In response, Security National argues that neither party has an unfettered right to determine the mode of trial, so the selection of the mode of trial cannot cause irreparable harm.
[53] TD Insurance advances a different argument as to why the Plaintiffs have not demonstrated irreparable harm, stating, at para. 28 of its factum:
As mentioned previously, the Plaintiff currently has the first three-week increment of a 10-week trial scheduled to proceed on February 22, 2021, without a jury. If the stay is granted, the Plaintiff will insist that these trial dates will remain in place. To prevent wasting time, costs, and most importantly, judicial resources, the Defendants should be permitted to have the February 22, 2021 trial date vacated without delay, and secure a new trial date to proceed with a jury.
Analysis
[54] I am satisfied that the Plaintiffs have demonstrated that if a stay is not granted, they probably will lose their February 22, 2021 trial date and the trial of their actions will be adjourned for an uncertain and, at present, incalculable length of time. As a result, they will suffer irreparable harm.
[55] First, I have no doubt that if a stay is not granted there is a very high risk that the Plaintiffs will lose their currently scheduled trial date. Absent a stay, the DC Order is in effect, which means that the Defendants’ jury notices are in force. On November 18, 2020 the Ottawa Trial Management Court judge deferred consideration of the Defendants’ request to vacate the trial dates until December 16, 2020. It is apparent from that endorsement that if the Plaintiffs fail on this stay motion or on their second motion to strike the jury notices, the trial dates probably will be vacated.
[56] I cannot assess what might happen on the Plaintiffs’ pending second motion to strike. That will be in the hands of another judge; to hazard a guess at the likely result would be nothing more than pure speculation on my part. Nor can I assess whether the other “double-booked” trial of TD Insurance’s counsel, referred to in Master Kaufmann’s endorsement, will settle before February 22, 2021. I therefore can only consider the likely impact of not granting the stay motion. From the endorsements of Master Kaufman and Gomery J., I have no hesitation in concluding that if a stay is not granted, the February 22, 2021 trial dates most probably will be vacated.
[57] Second, the Plaintiffs have demonstrated that, if the trial date is vacated, they will suffer non-compensable loss caused by the further deferral of the adjudication of the claim for loss of income. Since s. 267.5(1) of the Insurance Act limits the damages for income loss “before the trial of the action” to 70% of the gross income lost, that “cap” would continue until the trial commences on some uncertain, unknowable future date. The further loss caused by a postponement of the February 22, 2021 trial cannot by recovered by the Plaintiffs.
[58] Third, in the circumstances of this case, the delay caused by a postponement of the trial date constitutes, in and of itself, irreparable harm. As the motion judge found in his reasons, and as the East Region R.S.J. confirmed in his November 6, 2020 memorandum, there is no certainty as to when civil jury trials will resume in Ottawa. In my view, consigning these Plaintiffs – whose claim arose almost eight years ago – to trial scheduling limbo for an uncertain, unpredictable, and unforeseeable period of time would constitute irreparable harm.
[59] In those circumstances, I can only repeat what I wrote in Belton, at paras. 65-66 and 78, about the significance of pandemic-created delay to any strike jury notice analysis:
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.
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.
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.
[60] Those comments apply with equal force to the present case. Whereas in Belton there was an indication that civil jury trials might resume in 12 to 18 months, in the present case the East Region R.S.J.’s memorandum of November 6, 2020 left the matter open-ended, stating that “civil jury trials remain suspended until further notice.”
[61] Accordingly, I am satisfied that the Plaintiffs have demonstrated that they will suffer irreparable harm if a stay is not granted.
VI. THIRD FACTOR: BALANCE OF CONVENIENCE
The governing principles
[62] 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 responding party 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.
Positions of the parties
[63] The Plaintiffs argue that the balance of convenience favours them. They repeat their submissions on the irreparable harm factor and add that there is no identifiable prejudice to the Defendants arising from the actions being allowed to remain on the trial list for hearing by a single judge.
[64] Security National submits that the Plaintiffs are not harmed by a refusal of a stay because the February 22, 2021 trial date has not yet been vacated. I dealt with that issue in paras. 55-56 above, where I concluded that if a stay is not granted the Plaintiffs probably will lose their scheduled trial date.
[65] TD Insurance contends that the Plaintiffs’ ability to pursue their motion for leave to appeal would not be rendered moot if a stay were not granted. I accept that submission, but the real issue on this motion is whether the refusal to grant a stay would result in the Plaintiff losing its scheduled trial date.
[66] TD Insurance goes on to submit, at para. 31 of its factum, that:
[The] Defendants will suffer a deprivation of their fundamental and substantive right to a jury trial, and will face serious prejudice if they are forced to proceed to trial with a judge alone, especially in light of the Divisional Court’s decision granting the Defendants’ appeal.
Analysis
[67] The statutory right to a civil jury trial under s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is a qualified, not an absolute, statutory right: Belton (C.A.), at para. 26; DC Reasons, at para. 5. The Defendants’ reliance on the loss of their qualified statutory right to a jury trial as pointing the balance of convenience in their favour echoes similar arguments found in the decisions rendered over the past several months concerning motions to strike out jury notices in civil actions.
[68] At present, the debate about what loss a party suffers by having its jury notice struck is carried out largely by resorting to labels: DC Reasons, at para. 4; Belton (C.A.), at para. 26; MacLeod, at para. 29. Cases variously describe the right to a jury trial under CJA s. 108 as fundamental, substantive, statutory, qualified, or procedural. Such labels add little precision to the analysis required where a party opposes its selection of a civil trial by a jury. By their nature, civil jury trials take longer than civil judge-alone trials and, since they take longer, the parties incur more legal expenses. What goes unexplained is what legitimate benefit a party seeking a civil jury trial obtains that it would not obtain in a trial before a judge alone.
[69] As I stated in Belton, at para. 55, in the context of the irreparable harm analysis:
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 [defendant] 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.
[70] In the present case, the Defendants are responding to the Plaintiffs’ effort to preserve a date for a trial before a judge alone. But the situation remains the same as that described in Belton – the Defendants have not explained, in specific functional terms, what litigation disadvantage they might suffer if their rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury.[^3]
[71] The absence of evidence of such a functional litigation disadvantage, when weighed against the irreparable harm the Plaintiffs will suffer if the scheduled trial date is vacated, leads me to conclude that the balance of convenience overwhelmingly favours granting the requested stay.
VII. IS IT IN THE INTERESTS OF JUSTICE TO GRANT A STAY?
[72] I have concluded that all three elements of the RJR-MacDonald test, as applied in the context of the Sault Dock principles, favour granting 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.
[73] The motor vehicle collision that gave rise to these actions occurred over seven and one-half years ago. This is an old action. In a civil justice system that professes concern about providing the public with the “most expeditious” adjudication of their civil suits on their merits, this action should have been tried long ago: r. 1.04(1). The parties are ready for trial and have been for some time. COVID-19 intervened. A creative motion judge directed a “three-tranche” judge-alone trial that would mitigate the pandemic’s delay. The continuation of the pandemic renders unknown and unpredictable when civil jury trials will resume in Ottawa. But, a judge-alone trial can start in just over two months. Starting the trial will mitigate the statutory diminution of the lost income claim. And the Plaintiffs have raised serious questions for an appeal that are of public importance.
[74] In those circumstances, I have no hesitation in concluding that it is in the interests of justice to grant a stay of the DC Order.
VIII. EXPEDITING THE LEAVE MOTION AND APPEAL
[75] The Plaintiffs also seek an order that their motion for leave to appeal be heard orally[^4] on an expedited basis, together with the appeal, along with a timetable for filing the required materials. TD Insurance does not oppose that request, as the proceedings before the Divisional Court used such an approach. Security National opposes the request.
[76] I grant the request. The scheduled February 22, 2021 trial date drives that conclusion. There is not sufficient time between now and then for the Plaintiffs’ matter before this court to proceed using the normal timeline in the Rules. A motion for leave to appeal could be heard in the ordinary course before the trial date. But if the panel grants leave, standard appeal scheduling would not generate an appeal hearing before the trial date. As well, the issue of civil jury trial scheduling during the continuation of the pandemic has now been raised in several cases and may require consideration by this court before the pandemic ends.
[77] Accordingly, I order that the motion for leave to appeal proceed on an expedited schedule and be heard orally at the same time and by the same panel as the appeal.
[78] The details of the schedule will be discussed at a case conference with me this Friday, December 18, 2020. I can conduct a case conference at any time other than between 1:00 p.m. and 2:30 p.m. Counsel shall consult and then advise my assistant, Ms. Sandra Leal (sandra.leal@ontario.ca), no later than Wednesday, December 16 at 5:00 p.m., of a convenient time for the 18th.
[79] Counsel shall also consult before the case conference to:
(i) identify at least three dates between January 18, 2021 and February 5, 2021 on which they would be available for a 3-hour hearing of the motion for leave and, if required, the appeal;
(ii) develop a schedule for filing the required materials; and
(iii) attempt to settle the costs of this motion.
[80] In the meantime, I note that the Plaintiffs filed their notice of motion for leave to appeal on November 17, 2020. I order that they deliver the materials required to perfect their motion for leave no later than 3:00 p.m. on Wednesday, December 16, 2020: r. 61.03.1(6).
IX. DISPOSITION
[81] For the reasons set out above, I grant an order staying the DC Order until the date of the combined hearing by a panel of the motion for leave to appeal and appeal (if the panel entertains submissions on the appeal). I give the directions specified at paras. 78-80 above.
“David Brown J.A.”
[^1]: Given the urgency of releasing these reasons, counsel will forgive me if I have taken summaries of the various principles of law applicable to this motion from my earlier stay decision in Belton v. Spencer, 2020 ONCA 623. Time did not permit finding new ways to say that which has already been said.
[^2]: The motion judge relied on similar information about the availability of civil jury trials in Ottawa in Coban v. Declare, 2020 ONSC 5580, at paras. 2 and 31, leave to appeal refused, 2020 ONSC 7537 (Div. Ct.).
[^3]: The motion judge noted that there was no evidence before him that a jury was more capable than a judge alone of making the necessary findings of fact in the actions: MJ Reasons, at para. 42.
[^4]: Rule 61.03.1(15).