Court of Appeal for Ontario

Date: 20220307 Docket: C66519

Before: Feldman, MacPherson and Lauwers JJ.A.

Between: Andrew Hunter, Plaintiff (Appellant)

And: Elvira King, Defendant (Respondent)

Counsel: Robert Trenker, for the appellant David Patton and Sandra Koljuskov, for the respondent Yashoda Ranganathan, for the intervener Attorney General of Ontario

Heard: February 24, 2022 by video conference

On appeal from the judgment of Justice Michael R. Gibson of the Superior Court of Justice, dated January 14, 2019, but signed August 20, 2021.

Lauwers J.A.:

[1] On March 14, 2012, the appellant’s vehicle was struck from behind by the respondent’s vehicle while stopped at a red light in Brampton. The respondent admitted liability and the issue for trial was damages for loss of income. The jury returned a verdict in favour of the respondent and did not award damages.

[2] The notice of appeal, as amended, raised three grounds: the court lacked authority to send a jury selected in Brampton to a trial convened in Kitchener; the trial judge erred in admitting photographs of the damage to the appellant’s vehicle; and the trial judge erred in his instructions to the jury on the appellant’s pre-existing medical conditions. The latter two grounds of appeal were later abandoned.

[3] The appellant argues that the jury was not properly constituted because it was selected in Brampton for a Kitchener trial; accordingly, the judgment must be set aside, and a new jury trial convened.

[4] I do not agree and would dismiss the appeal for the following reasons.

The Factual Context

[5] At the beginning of the civil trial blitz in Central West Region on January 7, 2019, Regional Senior Judge Daley presided over the exit-pretrial conference for this case in Brampton. He advised counsel, as noted in his endorsement, that the trial “may be sent” to Orangeville or Kitchener because there might be no courtroom available in Brampton. Later that day Trimble J., who was responsible for jury selection for the trials set in that civil blitz, advised the jury panel assembled in Brampton that the trial of this action would start the next day in Kitchener. Jury selection was completed, and the trial started before Gibson J. in Kitchener the next day. The jurors were compensated for their mileage from Brampton through the Jury Transport Program funded by the Ministry of the Attorney General. No party at trial objected to the jury being selected from the Brampton panel or to the trial being conducted in Kitchener.

The Governing Principles Regarding the Location of a Trial

[6] The Regional Senior Judge’s authority over trial sittings is found in three sources: s. 14 of the Courts of Justice Act, R.S.O. 1990, c. C.43; in a direction by the Chief Justice of the Superior Court; and in the court’s inherent jurisdiction to control its own process.

[7] Section 14 of the Courts of Justice Act provides:

14 (1) The Chief Justice of the Superior Court of Justice shall direct and supervise the sittings of the Superior Court of Justice and the assignment of its judicial duties.

Regional senior judges

(2) A regional senior judge of the Superior Court of Justice shall, subject to the authority of the Chief Justice of the Superior Court of Justice, exercise the powers and perform the duties of the Chief Justice in respect of the Superior Court of Justice in his or her region.

Delegation

(3) A regional senior judge of the Superior Court of Justice may delegate to a judge of the Superior Court of Justice in his or her region the authority to exercise specified functions.

[8] The other two sources of the Regional Senior Judge’s authority were canvassed by Durno J. in R. v. Singh, 2018 ONSC 1532, who gave some background on the courtroom situation in Brampton. He stated, at para. 148:

To address the Brampton courtroom shortage, the Chief Justice has ordered that any proceeding in Brampton can be transferred from the Central West Region to Central South Region if it is determined by the RSJ or his or her designate that the proceeding cannot be held in Brampton. As has been repeatedly stated, there is always an overriding commitment by the Court to take all reasonable steps to keep as many proceedings in Brampton as possible.

[9] Durno J. added, at para. 153, that the court’s inherent jurisdiction also plays a role, and includes “those residual powers required to permit the court to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”. See also, Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 21.

[10] This court should not lightly second guess the discretionary decisions of local judges. As Hourigan J.A. observed in Louis v. Poitras, 2021 ONCA 49, 456 D.L.R. (4th) 164, at para. 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.

The Appellant’s Argument

[11] The appellant’s jurisdictional argument rests on the decision of Daley R.S.J. in Kapoor v. Kuzmanovski, 2018 ONSC 4770, 31 M.V.R. (7th) 247, who relied on Singh. Daley R.S.J. noted his authority, at para. 62: “Where other courtrooms within Central West Region are not available, the Regional Senior Justice for Central West Region was authorized to transfer cases to Kitchener in Central South Region.” After quoting para. 148 of Singh, set out above, he stated:

Following Durno J.’s decision in Singh, as Regional Senior Judge I have determined that where there is no courtroom space in Brampton for a civil jury trial, the appropriate and lawful course is to conduct the jury selection in the judicial centre where the case is to be tried. For example, a Brampton civil jury trial transferred to Kitchener would have the jury selected in Kitchener from a jury panel of Kitchener residents. Thus, there would be no need to look to the Jury Transport Program. This jury selection model will continue to apply to all civil jury cases transferred from Brampton whether to Kitchener or to another judicial centre in Central West Region. [Emphasis added.]

[12] The appellant relies especially on the underlined words and submits that in Kapoor Daley R.S.J. made a policy decision under the mandate given to him by s. 14 of the Courts of Justice Act, which then became binding in all civil jury proceedings under his control, including this case. The appellant argues that Trimble J. had no authority under this policy to select a jury from the Brampton panel and then send the jury to Kitchener to hear this case.

The Principles Applied

[13] I begin with the observation that there is a presumption of regularity in the logistical and administrative decisions made by local judges that should not be lightly second guessed. Although this presumption has been expressed in the criminal law context, in my view it applies equally in the civil context. In the criminal law context, see: R. v. Kapoor (1990), 52 C.C.C. (3d) 41 (Ont. H.C.), at p. 68, per Watt J. (as he then was), and R. v. Parmar et al. (1987), 61 O.R. (2d) 132 (Ont. H.C.), per Watt J., affirmed , 53 C.C.C. (3d) 489 (C.A.). In the civil law context, see: Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), 2019 BCCA 60, 21 B.C.L.R. (6th) 1, at para. 49; Gordon D. Cudmore, Civil Evidence Handbook, loose-leaf, 4th ed. (Toronto: Thomson Reuters Canada Ltd., 2022), at para. 4-18.

[14] I accept the view expressed in Singh and Kapoor that the optimal arrangement is that the jury is selected from the panel drawn from the place the trial is to be heard. But that optimal situation must yield to circumstantial practicalities.

[15] Daley R.S.J. knew the limits of his authority, which he recited in Kapoor. I do not accept the interpretation placed upon his language in Kapoor by appellant’s counsel, that the only appropriate and lawful course is to conduct the jury selection in the judicial centre where the case is to be tried. The language actually used by Daley R.S.J. is not exhaustive of his lawful authority to deal with local circumstances.

[16] Daley R.S.J. was fully aware of his authority to set policy and also to dispense with it. Because he pre-tried the case immediately before Trimble J. set about selecting the jury from the Brampton panel as part of a civil case blitz and noted that the “case may be sent to Orangeville or Kitchener”, I have no doubt that he well knew that the trial could happen in either Orangeville or Kitchener with a jury drawn from the Brampton jury panel, despite his words in Kapoor. In the general pandemonium around jury selection in a blitz, it seems highly unlikely that Daley R.S.J. did not know that the jury would be selected that very day from the Brampton panel. It was fully within the authority of Daley R.S.J. to make that decision, and Trimble J.’s implementation decision must be presumed to fall within the terms of s. 14(3) of the Courts of Justice Act.

[17] No one is better placed to allocate local court resources than a Regional Senior Judge. I decline to second-guess the decision of Daley R.S.J. or that of Trimble J. Indeed, the fresh evidence filed by the Attorney General demonstrates the ongoing challenges faced by local courts in holding jury trials where there are space restrictions posed by pandemic distancing rules, although this case preceded the pandemic.

[18] Alert to the fact that there had been no objection to the trial arrangements by trial counsel, making this an issue raised for the first time on appeal, appellant’s counsel framed his argument around the test set out by Watt J.A. in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43:

A party who seeks to escape the grip of the general prohibition against raising issues for the first time on appeal must meet or satisfy three preconditions:

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

(ii) the failure to raise the issue at trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

I now turn to consider this test.

[19] On the sufficiency of the record, counsel for the appellant provided no evidence on the way Central West Region implemented what he characterizes as the binding Kapoor policy in practice. The Kapoor decision does not appear to have been widely disseminated and the issue was obiter in the case itself. Trial counsel were unaware of it and only raised this concern after learning of Kapoor, well after the trial. No Practice Direction was issued per r. 1.07(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant provided no evidence on whether the policy was honoured ever, sometimes, or all the time, and when and why there were departures from it. In these circumstances, I would rely on the presumption of regularity.

[20] The second element concerns counsel’s failure to make an objection at trial for tactical reasons. I accept that trial counsel did not object because they were not aware of the Kapoor decision until several months later when the second notice of appeal was filed on July 15, 2019. However, there is no evidence that the appellant suffered any prejudice from the procedure that occurred.

[21] The appellant emphasizes the third element of the test. He argues that there was a miscarriage of justice because the lack of jurisdiction meant that justice would not appear to have been done in view of the Kapoor ruling. I would reject the argument. The trial of a Brampton action about an accident that occurred in Brampton by a jury selected from the Brampton panel and not from a Kitchener panel would not be seen by a reasonable person as a miscarriage of justice. The only practical negative effect of the trial location in Kitchener that counsel could muster on questioning was that some of the jurors, perhaps not all, might have had a longer commute to the court. This is no basis for declaring a miscarriage of justice.

[22] The argument made by appellant’s counsel is technical, and is rooted in this court’s decision in Letourneau v. Ottawa Bronson Construction Ltd. et al., [1970] 1 O.R. 24. The case stands for the proposition that where a civil jury is constituted in breach of the Jurors Act, R.S.O. 1960, c.199, the trial is a nullity even if it proceeds without objection. This seems axiomatic, but appellant’s counsel’s use of Letourneau in this case presupposes that Daley R.S.J.’s decision in Kapoor has similar force. As I noted earlier, it does not.

[23] The Attorney General, as intervener, [1] raised an argument about this court’s jurisdiction to hear the appeal, which the panel dismissed summarily. Counsel argued that an order transferring the trial of an action from one location to another is not final but interlocutory and, therefore, leave to appeal on that issue should have been sought from the Divisional Court under s. 19 of the Courts of Justice Act. I would not agree. Any rulings in the course of a trial process leading to a judgment merge in the final judgment and are fully within this court’s jurisdiction: see Bonello v. Gores Landing Marina (1986) Ltd., 2017 ONCA 632, at para. 14.

Disposition

[24] I would dismiss the appeal with costs payable by the appellant to the respondent in the agreed amount of $5,000 plus disbursements and H.S.T.

Released: March 7, 2022 “K.F.” “P. Lauwers J.A.” “I agree. K. Feldman J.A.” “I agree. J.C. MacPherson J.A.”

[1] Strathy C.J.O. issued an order granting the Attorney General intervener status.