Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210125 DOCKET: C68953
Watt, Lauwers and Hourigan JJ.A.
BETWEEN
Firma Louis and Marcdere Louis Plaintiffs (Moving Parties/Appellants)
and
Jacques Poitras and Security National Insurance Company Defendants (Responding Party/Respondent)
AND BETWEEN
Firma Louis Plaintiff (Moving Party/Appellant)
and
TD Insurance Meloche Monnex and Security National Insurance Company Defendants (Responding Parties/Respondents)
Counsel: Joseph Y. Obagi and Elizabeth A. Quigley, for the moving parties/appellants Barry Marta, for the responding party/respondent Security National Insurance Company Joseph Griffiths, for the responding parties/respondents TD Insurance Meloche Monnex and Security National Insurance Company
Heard: January 20, 2021, by video conference
On appeal from the order of the Divisional Court (Justices Thomas R. Lederer, Darla A. Wilson, and Jamie K. Trimble), dated November 16, 2020, with reasons reported at 2020 ONSC 6907, granting the appeal of the order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated September 9, 2020, with reasons reported at 2020 ONSC 5301, 152 O.R. (3d) 760.
Hourigan J.A.:
I. Introduction
[1] The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases' timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.
[2] Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court's injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices.
[3] There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.
[4] More fundamentally, the Divisional Court’s approach is at odds with the current reality faced by our courts. Superior Court judges are acutely aware of local conditions, and it is counterproductive for intermediate appeal courts to interfere unnecessarily. It is only in rare situations that an appellate court should overrule discretionary case management decisions. This was not such a rare case. On the contrary, this was a situation where the motion judge’s creativity should have been the subject of approbation, not condemnation. Therefore, for the reasons I will more fully detail below, I would grant leave to appeal, set aside the Divisional Court’s order, allow the appeal and restore the motion judge’s order.
II. Facts
[5] The appellants were involved in a motor vehicle collision in Ottawa on May 9, 2013. Two actions resulted: a tort action and an accident benefits action. Jury notices were filed by the defendants in each proceeding, which were ordered tried together in a 10-week jury trial commencing April 20, 2020.
[6] COVID-19 then intervened, and the trial date was lost. All parties were ready for trial. But for the pandemic, the trial of both actions would have proceeded in April 2020.
[7] In July 2020, the plaintiff moved for an order striking the jury notices in both actions, which the motion judge granted. 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. Consequently, the motion judge ordered the trials to proceed in three-week tranches, beginning in February 2021.
[8] The defendant insurers appealed the motion judge’s order to the Divisional Court. That court allowed the appeal, reinstating the jury notices in both actions. The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it was attributed solely to the presence of delay but lacked sufficient evidence of actual prejudice to the parties.
[9] The Divisional Court summarized its reasoning in overturning the motion judge at para. 2 of its reasons:
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.
[10] The plaintiffs moved to stay the Divisional Court’s order pending appeal to this court. Brown J.A. granted the stay, finding strong grounds to suggest the Divisional Court misapprehended relevant facts, particularly regarding uncertainty in Ottawa as to when or how a jury trial might proceed in light of the pandemic. Further, Brown J.A. noted that pandemic-related delay affecting civil jury trial scheduling has been raised in several cases and may require consideration by this court. Upon granting the stay, Brown J.A. ordered that this motion for leave to appeal be expedited and heard together with the appeal if the panel entertains submissions on the appeal, as we did.
III. Analysis
(a) Leave to Appeal
[11] The test on a motion for leave to appeal in these circumstances is found in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.) at pp. 480-81. These appeals fall into the category of special circumstances:
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.
[12] The plaintiffs submit that there are two grounds upon which leave to appeal ought to be granted: (i) the Divisional Court decision discloses an obvious misapprehension of the relevant facts considered by the motion judge in granting the order to strike the jury notices; and (ii) there is a serious question raised by this appeal that engages a matter of public importance that this court should consider in the interests of justice.
[13] I am satisfied that the Divisional Court’s analysis shows an obvious misapprehension of the relevant facts. The details of these patent errors will be considered in the analysis of the merits of the proposed appeal. For the purposes of the motion for leave to appeal, I note that the Divisional Court made an obvious error in concluding that the motion judge made his decision without regard to evidence of the local conditions as they impacted these actions. As I will explain, the motion judge was explicit regarding the evidence he was relying on in making that order, evidence that went to the specifics of the situation then extant regarding jury trials in Ottawa and its impact on these proceedings.
[14] I also have no hesitation in finding that this appeal raises a matter of public importance regarding the administration of civil justice. Guidance is necessary regarding civil case management during the current pandemic crisis. When I say guidance, I do not mean that this court should provide advice to trial courts on how to manage their civil lists. I have every confidence that they know how to do so in the context of local conditions. What I mean is that guidance is necessary for intermediate courts of appeal to remind them of the minimal role they play in reviewing discretionary case management decisions.
[15] Given the foregoing, I would grant leave to appeal. Simply put, the decision below is flawed on its face, and the approach taken by the Divisional Court must be discouraged if courts are going to properly manage their civil lists during the pandemic and beyond.
(b) Merits of the Appeal
[16] The Divisional Court's reasons and the reasons of the motion judge are like ships passing in the night. The Divisional Court makes a series of findings in reaching its conclusion that the decision of the motion judge is arbitrary. In so doing, it purports to undertake a detailed analysis of the motion judge's reasons to demonstrate that there was an insufficient evidentiary foundation for the decision to strike the jury notices. That analysis does not withstand scrutiny.
[17] It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because 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. 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 a broad discretion to determine the mode of trial. This court described the role of the court this way in Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal refused, [2006] S.C.C.A. No. 496:
While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.
The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible.
[18] It is equally well settled that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, leave to appeal refused, [1985] S.C.C.A. No. 93.
[19] Given the Divisional Court’s reasoning in this case, the admonition from this court in Cowles regarding deference bears repeating. The court warned that “an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be for that of the lower court. Interference is only justified when the lower court is shown to have committed the type of error referred to in Kostopoulos”: Cowles, at para. 42.
[20] With that comment in mind, I turn to a review of the Divisional Court’s reasons. There is considerable overlap in the Divisional Court’s analysis, but certain key findings emerge from the court’s reasons. In my view, all of these findings are erroneous and reflect a fundamental misunderstanding of the role of appellate courts in considering appeals from orders to strike jury notices.
[21] First, the court found that delay alone is not enough to strike a jury notice. According to the Divisional Court, there must also be proof of some additional prejudice before a court is justified in striking a jury notice. Thus, the court concluded, at para. 24, that in these cases, there was “no just cause or cogent reason to interfere with the statutory right of the defendants to seek trial by jury.” I disagree.
[22] The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time of the motion. Accordingly, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1) of the Rules of Civil Procedure, is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits:” Louis v. Poitras, 2020 ONCA 815, at para. 33.
[23] This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.
[24] Second, the Divisional Court expanded the scope of its analysis beyond the interests of the parties and considered the broader context of the civil justice system during the pandemic. The court correctly recognized, at paras. 26-30, that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality: see Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171; MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 29; Belton v. Spencer, 2020 ONSC 5327 at paras. 13-20, stay denied, 2020 ONCA 623.
[25] There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted.
[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75. An appeal court must respect the reasonable exercise of this discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.
[27] Third, the Divisional Court undertook a comparison of the circumstances of the cases at bar to other cases where the pandemic was considered in the context of a motion to strike a jury notice. It concluded that while the courts in those cases were justified in striking a jury notice, there was an insufficient evidentiary basis here. The Divisional Court concluded, at para. 55, that “the [motion] judge relied only on the fact of delay without any evidence applicable to the specific situation.” It also found at para. 66:
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.
[28] The Divisional Court went on to distinguish other decisions regarding striking jury notices like Belton, MacDougall v. Sisley, 2020 ONSC 6632 and Higashi v. Chiarot, 2020 ONSC 5523 on the basis that in those cases, the motion judges had evidence regarding the particular circumstances of the local civil list such as directives issued by the court and information provided to the court by the Regional Senior Judge.
[29] The Divisional Court’s analysis of Higashi, another Ottawa case, is particularly illuminating. There the motion judge, Roger J., made inquiries of the Regional Senior Judge, court staff, and the judge in charge of civil litigation in Ottawa regarding the status of the civil list. He took judicial notice that he did not know when a civil jury trial could proceed and that it was doubtful that criminal courtrooms would be available for civil jury trials.
[30] The Divisional Court accepted that the court in Higashi had a sufficient evidentiary foundation to make an order striking the jury notice. It contrasted the evidence available in Higashi with these cases and concluded that the motion judge’s decision was so lacking an evidentiary basis that it was arbitrary. With respect, this analysis is deeply flawed and sets the bar regarding what constitutes an arbitrary decision at a dangerously low level, a level that can be easily utilized to strip a motion judge of his or her discretion.
[31] I start by noting that in his reasons, the motion judge referenced the decision in Higashi, which had been released eight days earlier. This reference is ignored by the Divisional Court. Left unanswered by its reasons is why the motion judge could not rely on the information from Roger J. regarding the status of the availability of civil jury trials in Ottawa. Is it suggested that this information was reliable in Higashi but unreliable in these cases? Was the motion judge obliged to undertake his own investigation? How exactly can reliance on very recent information in a judicial colleague’s decision qualify as an arbitrary exercise of discretion?
[32] The flaws in the Divisional Court’s analysis become even more apparent when the motion judge’s reasons are properly analyzed. It is plain from his reasons that he undertook a detailed analysis of Ottawa's situation and reached his own conclusion regarding the status of civil jury trials in the city. The motion judge noted that in June 2020, formal notice was given to the Ottawa bar that civil jury trials would not proceed until January 2021 at the earliest. He observed that only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time of the motion, and no plan had been finalized to accommodate jury trials. Further, 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.
[33] Thus, contrary to the Divisional Court’s finding, the motion judge turned his mind to the local conditions and made an unassailable finding that it was unknown when or how a jury trial might be heard in these matters. I concur with the comment of Brown J.A. that this finding was “correct at the time of the motion; correct at the time of the Divisional Court hearing; and correct today.” Louis, at para. 29. In the circumstances of these cases, including that the accident took place over seven years ago, the motion judge was entirely justified in striking the jury notices.
[34] Finally, I note the respondent Security National Insurance submission that since the release of the Divisional Court's decision, the tortfeasor defendant settled with the plaintiffs. I am not satisfied that this settlement changes the analysis in any meaningful way.
[35] In summary, the Divisional Court erred in its analysis. Its conclusion that the motion judge’s decision was arbitrary finds no support in the motion judge’s reasons or the record before him. The appeal must be allowed on this basis.
IV. Disposition
[36] I would grant leave to appeal, allow the appeal, set aside the judgment of the Divisional Court, and restore the order of the motion judge.
[37] Regarding the costs of the appeal, the parties requested that they be given until January 29, 2021, to attempt to reach an agreement on costs. I would grant that request and order that, in the absence of an agreement, the appellants have until February 5, 2021, to serve and file their costs submissions, the respondents have until February 12, 2021, to serve and file their responding submissions, and any reply submissions be served and filed by February 17, 2021.
Released: “D.W.” January 25, 2021 “C.W. Hourigan J.A.” “I Agree. David Watt J.A.” “I Agree. P. Lauwers J.A.”
