Louis v. Poitras, 2020 ONSC 6907

CITATION: Louis v. Poitras, 2020 ONSC 6907

DIVISIONAL COURT FILE NO.: 350/20

362/20

DATE: 20201116

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lederer, D. Wilson, Trimble JJ.

BETWEEN:

FIRMA LOUIS and MARCDERE LOUIS

Plaintiffs (Respondents)

– and –

JACQUES POITRAS and SECURITY NATIONAL INSURANCE COMPANY

Defendants (Appellants)

AND BETWEEN:

FIRMA LOUIS

Plaintiff (Respondent)

– and –

TD INSURANCE MELOCHE MONNEX and SECURITY NATIONAL NSURANCE

Defendants (Moving Parties/Appellants)

Joseph Obagi and Christopher Obagi, for the Plaintiffs (Respondents)

Kevin P. Nearing, for the Defendant (Appellant) Jacques Poitras

Barry Marta for the Defendant (Appellant), Security National

Joseph W. L. Griffiths, for the Defendants (Moving Parties/Appellants, TD Insurance and Security National)

HEARD: November 2, 2020

BY THE COURT

Introduction

[1] These actions both arise from a motor vehicle accident which occurred on May 9, 2013, in the City of Ottawa. In one, the Plaintiff sues the tortfeasor claiming general damages for pain and suffering, loss of income and other relief, and sues the underinsured motorist insurer under the OPCF endorsement. The second is a claim against the accident benefits insurer for treatments that were denied, income replacement benefits and punitive damages. Jury notices were filed by the defendants: in the first action on August 25, 2015 and in the second on November 2, 2015. The two actions were ordered to be tried together, over ten weeks, beginning April 20, 2020. They did not proceed. Due to the Covid-19 pandemic regular court operations were suspended on March 15, 2020. The question of when civil jury trials will be available in Ottawa became and remains uncertain. The plaintiffs moved to have the jury notices struck in order that the actions proceed as a non-jury trial before a judge alone. The motion judge granted the order. The defendants appeal.

Result

[2] On a motion to strike a jury the over-arching concern has been to provide justice to the parties. There are circumstances where the impact on the administration of justice, more broadly cast, may influence or be determinative of such motions. 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.

[3] In the presence of the Covid-19 pandemic the circumstances that may influence the prospect of delay are constantly changing. The Chief Justice together with the Regional Senior Judges have issued numerous Notices to the Profession since the pandemic became a concern. These Notices set out changes in the work of the Court. Even as these reasons were being prepared a new Notice, from the Regional Senior Judge of the East Region concerning particularly criminal jury trials but referring to civil jury trials was issued. In order for motions dealing with jury notices to properly serve the parties and be determined fairly, it is essential that counsel co-operate with each other and ensure the Bench has the best, most updated information on which to decide the motion.

Juries in Civil Cases

[4] In the common law world, civil juries have long been part of legal culture. In Ontario, reliance on civil juries reaches well-back into our history.[^1] In more modern times the right to proceed before a civil jury has been referred to as both “fundamental”[^2] and “substantive”[^3]. The import of these words is not hard to see. Discerning the impact of these descriptors, that is the legal consequence, is more problematic. We venture to say that in the present day, in Canada, the description of law as “fundamental” is most frequently attached to rights established or confirmed by the Charter of Rights and Freedoms.[^4] The right to a civil jury is not founded in, or protected by, the constitution. On the other side, the right to a civil jury has been described as a “prima facie procedural entitlement”[^5], a depiction we see as being a little too callow. As “substantive”, the right to a civil jury is a “right of great importance”[^6] but that does not explain the manner or circumstances in which the right will be implemented. The right to a civil jury is best described as a statutory right. At present it finds its provenance in the Courts of Justice Act, s.108(1)[^7]:

In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.

[5] The right to have an action tried by a jury may be important, but it is not absolute. The Courts of Justice Act prohibits certain causes of action from being dealt with by a jury[^8] and provides the Court with a general discretion to order that matters other than those listed proceed without a jury:

On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.[^9]

[6] The Rules of Civil Procedure[^10] implement the directives found in the legislation. Rules 47.01 and 47.02 note:

47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,

(a) a statute requires a trial without a jury; or

(b) the jury notice was not delivered in accordance with rule 47.01. R.R.O. 1990, Reg. 194, r. 47.02 (1).

(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.

(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.

Motions to Strike Jury Notices

[7] Motions to strike juries are not uncommon. The general parameters that have governed these motions are found in Cowles v. Balac.[^11] In that case, the plaintiffs were seriously injured. They were attacked by tigers at the drive-through safari zoo operated by the defendant. At the outset of the trial, a motion was brought to strike the jury notice. The trial judge considered the submissions that were made and three days later rendered a decision and granted the motion. The trial proceeded over 26 days. The defendant was found to be liable either because as the keeper of wild and vicious animals strict liability applied or, in the alternative, it was negligent. The defendant appealed. Among other grounds, the defendant argued that the trial judge erred in striking the jury notice.

[8] What is the test to be met in considering an application to strike a jury notice or discharge a jury? In Cowles v. Balac the Court of Appeal set it out:

A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.[^12]

[Emphasis added]

[9] The application of the test is dictated by a consideration of the perspective and interest of the parties:

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.[^13]

[Emphasis added]

[10] In Cowles v. Balac the expressed concern was the complexity of the issues to be determined and whether a judge, because of his or her legal training and experience, would be better able to render justice because the case was complex. Concern for the complexity of a case was referred to by the Court of Appeal as the most common reason courts dispense with juries in civil cases.[^14] Whatever the rationale: complexity, lapse of memory through the passage of time[^15]or the disproportionate cost of a jury trial[^16], the over-arching concern is to provide justice to the parties. Will justice be better served by dismissing or retaining the jury?[^17]

[11] It is the parties and the prejudice they may suffer that has been the central concern of motions to strike a jury notice or discharge a jury. Of course, any asserted prejudice or concern for just treatment would have to be substantiated:

It is well settled law that the right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons.[^18]

[12] The counterpoint to showing just cause and cogent reasons is that the expression of the concern not be without a demonstrable foundation:

I think it manifest from the authorities that before an appellate court may properly intervene it must show that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.[^19]

The Case at Hand (Part 1)

[13] We turn now to the case at hand. What is it that the parties say that supports that the jury should have been retained (the defendant Jacques Poitras and the two insurers) or that justified the jury notice being struck (the plaintiffs)?

[14] The underpinning of the expressed concerns is further delay. The inability to conduct the trial as scheduled was the result of the Covid-19 pandemic and the Court’s response to it. The suspension of the Court’s regular operations was announced through a general notice issued through the office of the Chief Justice. It implemented processes to have urgent matters heard through virtual means.  Notices to the Profession were issued on March 15, 2020 identifying the urgent matters that would be heard.  On April 2, 2020, further Notices to the Profession were issued expanding the scope of matters that would be heard in each region. As a result, on April 20, 2020, the date scheduled for the commencement of this trial, trials were not proceeding and this one did not. In the weeks since, the Court has continued to monitor the situation and, where and when both safe and possible, to respond by amending the services offered and the means by which trials and other court proceedings are to be provided. Notices have been issued both by the Office of the Chief Justice and, where necessary and appropriate, by Regional Senior Judges responsible for the conduct of the Court in differing parts of the province. A review of these directives makes clear that the return of civil jury trials is, at best, uncertain. Jury trials are among the most complex of the services the court provides. Courtrooms need to be retrofitted to be sure juries can hear, see and be properly engaged by what is taking part without concern for their own safety, properly protected from the virus. The directives make clear that criminal jury trials are to have precedence. This is not surprising. There is a constitutional imperative. The Charter of Rights and Freedoms guarantees the benefit of trial by jury to those charged with a criminal offence where the maximum punishment is imprisonment for five years or more.[^20]

[15] It was in the context of this uncertainty that the motion was heard. The onus was on the plaintiffs, as the party seeking to strike the jury notice, to demonstrate that there were issues which justified the request.[^21] It was submitted on behalf of the plaintiffs that they would be prejudiced financially by further delay in the trial. In particular, the plaintiff, Firma Louis, is advancing a claim for past and future loss of income. As a result of the adjournment delaying the trial from its expected commencement, the tort claim of Firma Louis for future income loss is being eroded. This is by operation of the Insurance Act[^22] which directs that 30% of all income losses suffered “before the trial of the action” are not recoverable. Damages for income loss after the trial are recoverable at 100%. As the trial is delayed the income loss attributable to the period prior to the trial increases so that the amount “in excess of 70% of the amount of gross income” and “in excess of 70% of the loss of earning capacity” during that period (the 30%) continues to increase.[^23] This concern did not play a role in the decision of the motion judge to strike the jury notice. After reviewing the submissions of both the plaintiffs and the defendants, he found:

In my view, nothing turns on Ms. Louis’ claim for damages for past and future loss of income.[^24]

[16] There are other limitations to any non-pecuniary damage award that may be made. Any amount of damages made on this account (pain and suffering) is to be reduced by an amount which is the greater of that established in the legislation or prescribed by the regulations. It is the latter which applies. This “deductible” has increased year by year thus creating a further decline in these damages. It should be said that this reduction is not certain. It does not apply when the award is higher than an amount that is established by the legislation and recalculated each year pursuant to a prescribed indexation percentage.[^25] As this “threshold” for relief from the deductible increases the prospect of surpassing it and avoiding the deductible decreases. This creates the risk of a further decline in damages. This potential decline should be measured in concert with the possibility that a jury will award less than a judge decreasing the chance of surpassing the deductible or, at the other end, not meeting the threshold.

[17] This was not referred to by counsel for the plaintiff but was accepted by him as relevant when raised by the Court. It was not referred to by the motion judge, and like the decline in damages for loss of past income was not a consideration in his decision to strike the jury notice.

[18] What about prejudice to the defendants? There has been delay. The personal defendant, Jacques Poitras says he is prejudiced because, with the passage of time and the additional interest which has accrued on any damages that maybe awarded to the plaintiffs, he is now facing a larger claim, one that is in excess of his $1,000,000 policy limits.[^26] The motion judge gave short shrift to this submission. The expert reports served by the plaintiff in 2017 supported a claim well in excess of $1,000,000. The brief provided by the plaintiff in anticipation of the 2018 pre-trial conference disclosed that the plaintiff was seeking damages in excess of $3,000,000. The plaintiffs could not be faulted if Jacques Poitras was not personally informed, in a timely fashion, after service of the expert reports, of the full extent of the plaintiffs’ claims.[^27] The fact that the claim was or became greater than the insurance available to Jacques Poitras is unrelated to any delay concerned with whether the trial is conducted before a jury.

[19] As acknowledged by counsel for the defendants, the only other evidence that is in furtherance of such prejudice is a statement deposed to by an associate at the law firm that is counsel for the defendant, Security National Insurance Company. The statement is based on information provided to the associate by counsel arguing the motion and this appeal:

I am advised by Barry Marta and verily believe that it is the best interest of Security National and the administration of justice to have this action tried by a jury and that Security National will be severely prejudiced if the jury notice is struck.[^28]

[20] This is a motion. Affidavits made on information and belief are permitted[^29] but there is little if any value in a statement made by one lawyer, as provided to him by another lawyer and, at that, the counsel acting on the very matter, trying to establish the fact of the statement made. This is a general statement that could be used on behalf of any insurer on any motion to strike a jury notice. There is nothing particular to this case or this party. At best it is an opinion without foundation. It is counsel stating, through the sworn statement of another, a conclusion he seeks to put to the court. As it stands, it is of no value to this court or the motion judge. As it is, the motion judge made no reference to it.

[21] We note that relying simply on this bald statement seems oddly inconsistent with the position taken by these defendants in respect of what is required of the plaintiffs to show prejudice. For the plaintiff, the defendants require evidence demonstrating actual bias to either the process or its impact (for example: impact on the financial circumstances of the plaintiffs). For themselves, they say they need only make the statement that they fear prejudice without any demonstrated substance supporting it.

[22] It was not submitted that there is any complexity to the issues to be raised in the trial.

[23] 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:

On the motions before me there are no features in the legal of factual issues to be resolved, the evidence, or conduct of the trial to indicate that these actions cannot be tried by a jury.[^30]

[24] There was, in these considerations, no just cause or cogent reason to interfere with the statutory right of the defendants to seek trial by jury.

The Administration of Justice as a Concern

[25] This is not the end of the matter. The impact of the Covid­-19 pandemic requires the Court to look beyond the narrow terms of the test set in Cowles v. Balac. It is not just the interest of the parties that is of concern but also the impact on the court and the administration of justice. The potential for this extension was recognized before the appearance of Covid-19. In McLeod v. Canadian Road Management Company[^31] the judge considered a motion to strike jury notices. The proposition was that the issues were too complex for a jury. The plaintiff had a complicated medical and psychological history. Whether and the degree to which these issues arose from the motor vehicle accident that was the cause of the action, the plaintiff’s pre-existing conditions or his mother’s psychological issues[^32] was the foundation for the concern. Ultimately, the motion judge determined that, while the matter was complex, there was no determinative indication that a jury would be unable to appreciate the issue and respond appropriately. The motion was dismissed without prejudice to a similar motion being brought with more definitive evidence concerning complexity.

[26] The motion judge went further. He noted the test in Cowles v. Balac[^33] and then went on to observe that in the context of the case he was dealing with, complexity was not the sole issue driving the analysis of the interests of justice and that “[l]ike all procedural rights, [the right to a jury] yields to the overriding interests of justice it is intended to serve”.[^34]

[27] The idea that the consideration of whether to strike a jury notice might extend beyond the immediate interest of the parties was repeated in Girao v. Cunningham.[^35] This case was heard by the Court of Appeal in 2020 but with respect to a trial that had taken place in 2017. The decision of the Court of Appeal makes no reference to Covid-19 or the pandemic. The plaintiff (the Appellant) had moved to strike the jury. The trial judge had refused. The Court of Appeal found that the trial judge erred by failing to revisit that decision.[^36] In doing so the Court observed:

While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.[^37]

[28] In that case practicality was a concern because the plaintiff was self-represented and took part, in the trial, with the assistance of an interpreter. As understood by the Court of Appeal, the self-represented status of a litigant was a factor that might unduly complicate or lengthen the trial that could have led the trial judge to conclude that prudence suggested the jury be discharged.[^38]

[29] The concerns are not just about the parties in the particular case. They extend to systemic issues that left unaddressed can strain the administration of justice:

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, 2016 SCC 27, 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.[^39]

[30] These cases set the groundwork. They acknowledge that the implications for the administration of justice, as a whole, of striking a jury notice or discharging a jury could lead to a broadening of the considerations set out in Cowles v. Balac.

[31] In Belton v. Spencer[^40] this Court considered a motion to strike a jury notice in the context of the Covid-19 pandemic. In setting out the basis for the motion, the judge was careful to address its presence and its impact on the operations of the Court. The grounds for the motion were that because of Covid-19 there were serious concerns that, if the action was to proceed before a jury, the trial would be delayed by one year or possibly for as long as 18 months. The defendant, in opposing the motion, submitted that the extent of the delay of the trial caused by Covid-19 was, at the time, unknown. The judge recognized that the concerns raised by the presence of the virus went beyond its impact on the parties. The judge recognized the broader concern for delay as affecting the administration of justice. She went back to the well-known aphorism which she credited to Lord Denning: “Justice delayed is justice denied”.[^41] This refers to more than justice for the parties engaged in the action. She noted:

Remedying delay in Canadian civil justice has repeatedly been identified by the Supreme Court of Canada as an issue of paramount importance. [^42]

[32] And followed this observation by quoting that higher court:

Unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society. At some point, it is a foe that has plagued the life of almost all courts and administrative tribunals. It’s a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians.[^43]

[33] She went on and referred to the now seminal case of Hryniak v.Mauldin[^44] and its demand for a “necessary culture shift”[^45] in Canadian civil justice. She quoted from that decision:

Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.[^46]

In other words:

[A] fair and just process … is illusory unless it is also accessible – proportionate, timely and affordable.[^47]

The Case at Hand (Part 2)

[34] Given that, on the motion that is the subject of this appeal, the judge did not rely on prejudice caused to the parties by the prospective delay, on what basis did he strike the jury notice? It was the fact of the delay by itself:

I recognize that there are few decisions that identify delay as being determinative on its own of the right to trial by jury. Regardless, I find delay to be determinative on its own of the right to trial by jury.[^48]

Delay

[35] As noted in the cases referred to and quoted, delay, on its own, reflects on the ability of the court to reasonably administer justice. In coming to this conclusion, the motion judge quoted from the Ontario Civil Justice Review, First Report (1995).[^49] The judge repeats a comment of Willard Z. Estey, who from 1977 to 1988, sat as a judge of the Supreme Court of Canada:

Disputes, unlike wine, do not improve by aging. Many things happen to a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is ... a primary enemy of justice and peace in the community.[^50]

[36] And a further quote that originates from the report itself:

Unreasonable delay in the disposition of disputes is, indeed"the enemy of justice and peace in the community". It leads inevitably to unreasonable costs. It breeds inaccessibility. It fosters frustration, and frustrates fairness. The administration of justice falls into disrepute.[^51]

[37] These are general statements made introducing a study directed to improving civil justice. They say nothing specific about the Courts, in general, or any case, in particular.

[38] In Gervais v. Kapasi[^52] (also referred to by the motion judge) there had been two attempts to start the trial with a jury. At the first the brother of one of the jurors had been subpoenaed to appear as a witness. At the second a juror recognized the plaintiff as someone she had attended college with. This occurred in Windsor. There was no jury panel readily available. It was not possible to replace a juror. It was necessary to traverse the case to another sitting. Should this be done a second time, or should the case proceed as a judge alone trial before the judge scheduled to conduct the trial with a jury? The judge heard a motion to strike the jury notice. He identified the case as one of the oldest on the trial list. He reviewed the circumstances: the difficulty in getting all the counsel, witnesses and experts together at the same time with a jury; the difficulty in finding a judge who was free to conduct a four to five week trial and the backlog of civil jury cases (this was during the period following the Supreme Court of Canada’s decision in R. v. Askov[^53] which made criminal trials a priority). He concluded:

In my view there comes a time when matters in dispute have to be resolved. There comes a time when the cost of litigation outweighs what can be hoped for as a result. I think in this case the time has come. I have considered the grounds put forth. I feel they are novel. I feel they are practical. I feel they meet the needs of present litigation and the needs of parties to be served by the judicial system. I do not think it would be doing justice to the positions of either the plaintiffs or the defendants to again put this off to another day. They have come here prepared and ready to go and ready to present their respective cases to a tribunal for decision. I am prepared to allow them to proceed forthwith. The jury is struck.[^54]

[Emphasis added]

[39] Delay on its own was enough to set aside the jury, in part because of its impact on the particular litigation but also because of the demands placed on the judicial system to serve the public by doing justice.

The Case at Hand (Part 3)

[40] What is it that caused the judge in the case now being decided to accept that the delay that had occurred was sufficient to be determinative and appropriate as the foundation to strike the jury notice? In the decision it is noted that the judge, in Ottawa, responsible for the civil list 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.[^55] This trial was predicted to take ten weeks. The plaintiffs in seeking to proceed without a jury suggested that the trial commence for the first three weeks that all counsel would be available and that, thereafter, it continue in subsequent three week periods until complete. The judge understood this to be a novel approach. He felt that, with the technologies now available the risk of the evidence being forgotten was greatly reduced. “In short, the ability to review the evidence and refresh the judge’s memory as well as the memories of the parties and their counsel has vastly improved.”[^56] In the circumstances the judge determined that, while the proposal to proceed in three-week tranches was unusual, “it should be attempted in these unprecedented times.”[^57] It is evident that this is acceptance of a proposal as to when and how a non-jury trial could proceed. It is not the consideration of any delay in bringing this on before a civil jury.

Discretion

[41] It is accepted that this decision is discretionary. In Cowles v. Balac the Court of Appeal was careful to point out that such determinations are to be given considerable deference:

An appeal court should not interfere with the exercise of a trial court's discretion simply because it disagrees with the conclusion reached. That means 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.[^58]

[42] In Graham v. Rourke it was said that:

In many situations that discretion may, with equal propriety, be exercised for or against discharging the jury.[^59]

[43] The question remains whether the motion judge, in exercising his discretion acted arbitrarily or capriciously or based upon a wrong or inapplicable principle of law.[^60] In this context arbitrary means “not supported by fair, solid, and substantial cause, and without reason given.”[^61] Understood in this way, in the absence of any discussion as to its length, nature or circumstances, a decision to strike a jury notice on the basis of delay is arbitrary. Simply identifying that there is delay is not enough.

[44] Counsel for the defendant, Jacques Poitras submitted that that the motion judge should have assessed the timing of any prospective trial with a jury (not necessarily the time of its commencement but rather when a verdict would have been rendered) and compared it to the timing of the proposed non-jury trial. With that comparison in hand the true impact of any additional delay could be assessed and a decision as to whether the jury notice should be struck made. This would be the imposition of a formula not the exercise of discretion.

[45] The decision in Belton v. Spencer to which we have already referred was to be appealed. In order to accommodate that appeal, a motion was brought seeking a stay. In refusing the stay the judge of the Court of Appeal noted:

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.[^62]

[46] The same could be said for the imposition on the management of the Court by the narrow analysis this formula proposes being carried out in courtrooms across regions of the court and the province as a whole.

Other Cases

[47] Other cases have considered this problem in the presence of Covid-19. What have they done?

[48] We start with Jiang v. Toronto Transit Commission.[^63] This was not a motion to strike a jury notice. It never got that far. This was a requisition to schedule an urgent motion directed to that purpose. The reason for the request was the pandemic. The courts had been closed and a “huge backlog” created. It was said that a trial in person would “necessitate a further delay of 1-3 years”. The judge understood that “we are in unprecedented times” and that “[t]he Court must be flexible and adaptable to accommodate the needs of the parties and to ensure that cases proceed in a fair and equitable fashion.” This was a trial that was to proceed in Toronto. There were courtrooms that had been retrofitted to accommodate the social distancing required to conduct jury trials. Jury selection was to take place at a location separate from the Courthouse. Counsel were left to decide what witnesses could give their evidence virtually, what evidence could be filed electronically and what evidence would have to be heard in a courtroom. The judge concluded:

Since Toronto is offering civil jury trials, there is no basis for the suggestion of counsel for the Plaintiff that this case will be adjourned and not heard for several years. I do not understand where the assertion that there is a “huge backlog” in the civil and criminal court system” emanates from.[^64]

[49] The judge determined that no motion needed to be scheduled.

[50] We cite this case to make the point 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. Some information that can be applied to the particular circumstances should be made available to a Court considering a motion to strike a jury notice on the basis of delay. It was submitted that there was information that one civil jury trial could be or was to be accommodated in Ottawa during January 2021. The question asked was why this case could not be that case. Whether this is so and whether a case had been identified is unclear, but the suggestion confirms the need for some direct evidence of the immediate circumstances.

[51] We pause to mention a submission made on behalf of the defendants. It was suggested that it was incumbent on the Court to provide the same level of service across the province. In some unidentified utopian place this might be possible but not in present day Ontario. It is an invitation to find the level of service that is affordable and can practically be offered in every part of the province. It should be self-evident that the demand and the facilities that can reasonably be made available will be different throughout the province. The reality is that there will be more demand and more facilities in some places than in others. Taken to its logical, if unacceptable, extreme this proposition suggests that those cases that can be accommodated should not be because they would not be able to proceed in other regions of the province.

[52] In refusing the stay in Belton v. Spencer the Court of Appeal observed:

…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.[^65]

[53] We return to the decision of the motion judge in Belton v. Spencer. She made note of information gleaned from the directives issued by the Office of the Chief Justice- First, that as of March 17, 2020, in-person court operations had been suspended and then, on June 25, 2020, a further Notice to the Profession announcing a phased in return of such hearings. In particular, she understood that, in Hamilton, it was expected that, by July 2, 2020, at least one courtroom would be available for the Superior Court of Justice.[^66] The judge made reference to concerns associated with the pandemic: the need for renovations to courtrooms and the provision of additional space for the use of jurors, the ability to secure sufficient jurors to meet the demand and the impact if, during a trial, a juror became infected. She acknowledged that these concerns were speculative but went on to say that there was no need to speculate about whether requiring a jury would delay the trial for at least one year. That was the evidence on the motion:

The parties were told by RSJ Arrell in June 2020 that if the action proceeded by judge alone it might be scheduled in late 2020 or early 2021, but if it was to be heard by jury, the trial would not likely be scheduled for at least a year and possibly 18 months.[^67]

[54] What is apparent is that the motion judge had evidence that reflected the particular circumstances, evidence from the directives issued by the Court and information provided to the parties by the Regional Senior Judge. With this information in hand, she determined that the jury notice should be struck:

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.[^68]

[55] In the case being decided, the judge relied only on the fact of delay without any evidence applicable to the specific situation. Like this case, Higashi v. Chiarot[^69] arose in Ottawa and considered a motion to strike a jury notice in the face of the Covid-19 pandemic. What was at issue was the hearing of a four-week jury trial and whether, given the impact of Covid-19, the jury notice should be struck and the matter left to proceed before a judge alone. In outlining his understanding of the issues that would influence a motion such as this, the judge referred to Cowles v. Balac, section 108 of the Courts of Justice Act, rule 47.02 of the Rules of Civil Procedure and Hryniak v. Mauldin. He added the directive found in rule 1.04(1):

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[56] And like the motion judge in the case being appealed, noted that “[d]elay can result in the discharge of a jury.”[^70]

[57] In that case the judge had made inquiries of the Regional Senior Judge, court staff and the judge in charge of civil litigation in Ottawa. At the outset he advised the parties of what he had learned and that he intended to take judicial notice of those facts. The parties did not object. He had been advised that efforts were being made to retrofit courtrooms to be able to be used for jury trials even as the pandemic continued. It was likely that those courtrooms would be taken up with criminal matters. It was possible that if ever there was time in between them, a civil matter might be accommodated:

So at present the civil jury side is unknown. [The Regional Senior Judge] indicated that we could try and use the criminal rooms for civil jury trials, but with the backlog on the criminal side that he thought this was very unlikely.[^71]

[58] A four-week, non-jury trial could be heard “really at any time” but the timing for a civil jury trial was just not known. With this information, information that was not apparent in the case now being appealed, the judge determined to strike the jury notice but without prejudice to the parties being able to return prior to trial should it, then, be known when a civil jury trial could proceed.

[59] MacDougall v. Sisley[^72] is a matter proceeding in the Central East Region of the Superior Court. The plaintiff brought a motion to strike the jury notice. The focus was on the ability of the judicial system to try a civil jury case within a reasonable time as a result of the delays and other concerns which have arisen out of the Covid-19 pandemic.[^73] In that case the judge hearing the motion took account of the suspension, by the Court, of its in-person court operations as of March 17, 2020. This was in the notice issued by the Office of the Chief Justice. He also was aware of, and referred to, a protocol issued by the Office of the Regional Senior Judge on September 17, 2020 which concerned the resumption of civil proceedings. The notice advised that the November 2020 Civil Trial Sittings were cancelled due to the ongoing impact of COVID-19 on court operations in the Central East Region. The notice went on to state that the status of the May 2021 Civil Trial Sittings was uncertain. The protocol advised that as of October 5, 2020, the Central East Region would maintain a running list dealing with civil trials. Cases that had been pre-tried and deemed ready for trial were to be eligible to be placed on that list. This would include all cases which were not reached at the November 2019 and May 2020 Civil Trial Sittings. Eligible cases would be placed on the civil trial running list either on consent or by the order of a triage judge. The civil trial running list was to include both jury and non-jury cases.[^74]

[60] The judge had also sought the advice of court administration. At the hearing of the motion, he informed the counsel of what he had been told. Subject to consideration by a triage judge, cases that had been scheduled to be heard in November 2019 and May 2020 were to be given precedence. In the Central East Region three courtrooms had been renovated for jury trials during the pandemic. Criminal jury trials were to be given priority. However, if a criminal jury trial did not proceed for any reason, the courtroom was to be made available for a civil jury trial.[^75]

[61] Subsequent to the hearing more information was forthcoming. An anticipated criminal jury trial did not proceed. The courtroom was made available for a civil jury trial. It was to begin on October 19, 2020. There was a spike in Covid-19 cases. On October 16, 2020, the Chief Justice circulated a Notice to the Profession suspending jury selection in York Region for a period of 28 days. As a result, the civil jury action scheduled to start on October 19, 2020 did not proceed. In the meantime, two more courtrooms suitable for juries were to be made available early in the new year. Consideration was being given to dedicating one of them to the conduct of civil jury trials. As a result of these developments the judge heard further submissions from counsel.[^76]

[62] The motion judge considered the impact of the pandemic on the operations of the court at large:

While timely justice is important the unfortunate reality we face as a result of the pandemic is that significant delays in trying cases have occurred in all areas of the courts’ work. The result is a significant backlog of trials; both jury and non-jury. As courts re-open the justice system has had to set priorities as it allocates scarce resources. This in turn has meant that criminal and family cases are given a higher priority than civil. As a result, the delay in trying civil cases may be longer than criminal or family cases. Delays may also be longer for civil jury cases as opposed to non-jury cases because civil non-jury cases may be amendable to being tried via zoom. That does not necessarily mean that this case could be tried as a non-jury case without some further delay. It is apparent that the allocation of judicial resources is a zero sum game. The resources given to one area directly affects the resources available to the other areas of the courts work.[^77]

[63] In that case, the judge dismissed the motion but without prejudice to renewal of the request to strike the jury notice. He believed that by the early months of 2021 there will be a better understanding as to how the civil trial protocol is working and whether the courts in the Central East Region will be able to accommodate any civil jury trials. If it appears that there will be an inordinate delay in trying civil jury cases, then it may be appropriate to reconsider whether that delay merits striking the jury notice.

[64] For the purposes of these reasons what is important is that in coming to this conclusion the motion judge took into account the possibility that there would be a courtroom dedicated to civil jury trials made available in the new year, the civil trial running list, the triaging of those cases and the hope that those processes would be successful. This was information as to the particular circumstances. It was the sort of information that was not brought to bear on the case being appealed. 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.

[65] By these reasons, the basis upon which a jury notice may be struck, or a jury discharged may include a consideration of whether it is in the interest of the administration of justice that the trial proceed or continue without a jury. It is for the court to control its processes within the parameters set by its constitutional obligations, legislation and the common law. It must do so in a fashion that balances what is practical, given the available resources, facilities and judicial complement, and the requirement that it provide justice between the parties even in times of disruption and uncertainty.

The Necessary Information

[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. It was delay that implicated concerns for the administration of justice. How is that information to be proffered in the context of a motion to strike a jury notice.

[67] The cases reviewed reveal two sources that have been relied on: Notices to the Profession issued through the offices of the Chief Justice and Regional Senior Judges and immediate advice from local judges and other court officials responsible for the organization of the court and its proceedings. The first range from those that have general application across the province (the suspension of court services), to those directed to more specific locations (the Chief Justice has issued Notices collectively to the attention of Brampton, Ottawa and Toronto) and to those reflecting on the specific approach in a given Region (the Central East Region protocol establishing the running lists of civil trials). These notices are made public and, as matters of public record, are admissible in Court, on their own, without the need to be included as part of an affidavit.

[68] To this point the information from local administrative judges and officials has been collected by and made known by the judge hearing the motion to strike the jury; this was the case in Jiang v. Toronto Transit Commission, Belton v. Spencer, Higashi v. Chiarot and MacDougall v. Sisley. In Jiang v. Toronto Transit Commission, the judge, as a result of her administrative responsibilities, was aware of the availability of courtrooms, in Toronto. In Higashi v. Chiarot, at the outset of the hearing, the motion judge advised counsel of the information he had acquired, and without objection noted his intention to make use of it (to take judicial notice of it). In MacDougall v. Sisley the motions judge referred to and relied on notices from the Office of the Chief Justice, from the Regional Senior Judge and advice he received from Court Administration which no one questioned. In Belton v. Spencer the Regional Senior Judge had been directly involved through conference calls with counsel. He had “implicitly authorized the plaintiff to bring the motion”[^78] and, in June 2020 told the parties that “… if the action proceeded by judge alone it might be scheduled in late 2020 or early 2021, but if it was to be heard by jury, the trial would not likely be scheduled for at least a year and possibly 18 months.”[^79] It is unlikely, as we go forward, that Regional Senior Judges will be able to get directly involved in individual cases as in Belton. One would hope and expect, as was the case in Jiang, Higashi and MacDougall that information provided by the judge would be accepted without question or debate.

[69] This has allowed for these matters to be determined based upon information that addresses the specific circumstances, is up to date and brought forward in an expeditious manner that allows these procedural matters to be dealt with without reliance on the formality, time and expense associated with affidavits. It allows for a co-operative effort to determine how to proceed and to serve the interests of the administration of justice both as it concerns the parties and the administration of the court.

[70] Why raise this now? The Defendant/Appellant Security National Insurance Company filed a Reply Factum. It questions information relied on by the Plaintiff/Respondent through affidavits sworn in support of the application to strike the Jury Notice. But it does not stop there. The Reply Factum questions what was said by the motion judge. First it outlines the Plaintiffs’ statement as to their understanding of the Defendant’s acceptance of what the judge said:

The Defendants do not appear to challenge the accuracy of the description of the judicial resources in Ottawa provided by the motions judge.” [Paragraph 27]

In any event, the Defendants do not challenge the accuracy of the information regarding scheduling and judicial resources… [Paragraphs 67]

And then makes known the objection:

All of these statements are inaccurate based on the position of Security National in its Factum[^80]

[71] When it comes to understanding when a civil jury trial could be possible this Defendant/Appellant is unprepared, even in this constantly changing environment, to go beyond what is specifically said in the Notices to the Profession. The Reply Factum begins, again, with the Plaintiffs statement:

The situation such that an estimate as to when civil juries will resume cannot be given – not even by the court.

And goes on:

In fact, the only evidence in the Record is that “civil jury trials will not proceed in Ottawa until January 2021 at the earliest. …” [^81]

[72] The administration of justice is a shared responsibility. If in difficult times such as those we now confront, clients want to be treated with justice, the lawyers involved are going to have to take part. It is not for moving parties to embellish the record or responding parties to continue to refuse to acknowledge what is generally known or responsibly provided. It is not likely that every time a motion is brought to strike a jury notice, court officials are going to produce affidavits and subject themselves to cross-examination particularly in an ever-changing environment. Since this appeal began there has been a spike in the number of Covid-19 cases and the suspension of jury trials in some parts of the province. When this happens, it is not to be expected that this information will be ignored until an official publication is forthcoming. In the same vein it should not be expected that judges will seek out information from colleagues and court staff when its accuracy is likely to be challenged. We point out that in MacDougall v. Sisley the judge recognized fresh information, advised counsel and provided them with the opportunity to make further submissions. What would be the purpose if this opportunity was taken as an invitation to question the information provided?

[73] What is at stake here is an understanding of circumstances common to us all and the facts that support them. This does not need to be, should not be and has not been controversial.

[74] During the submissions in this case, counsel were asked if any of them had made inquiry of court administration as to the availability and timing of any prospective civil jury trial. They had not. It would have been helpful to the motion judge if they had. It would be best if this was done co-operatively and a common understanding arrived at. Where appropriate, with the assistance of court staff, it may be that it can be updated by the motion judge. Adversarial affidavits will not be helpful.

[75] The Reply Factum observes that the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either:

(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or

(2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy

[76] It is to be hoped that the information required by a judge to determine the impact of unusual circumstances such as those now upon us on the scheduling of trial dates and similar procedural issues can be co-operatively arrived at, but if not, as the judge involved may determine, subject to judicial notice.

“Wait and See”

[77] Finally, these reasons come to the question of how to respond in these circumstances. Throughout the submissions reference was made to a “wait and see” approach. This has been a common response to motions to strike jury notices or to discharge juries. In its typical form it is not directly responsive to the concerns raised in this case. Where the objection to a case being heard by a civil jury is its complexity, the court may well not dispense with the jury in advance of the trial, preferring to “wait” until the trial is underway and “see” if the concern for the jury’s ability to deal with the case actually arises.[^82] Obviously, this cannot work in this situation. As the motion judge in Belton v. Spencer noted if you wait for the trial judge the delay of concern will have already occurred.[^83] It follows that if you wait for the jury to be selected and the trial to begin, the risks involved are already being taken.

[78] In some of the cases that have considered the impact of Covid-19 amended forms of this approach have been adopted. It was rejected in Belton v. Spencer. In Higashi v. Chiarot the motion judge struck the jury but advised counsel that if circumstances changed, he was prepared to reconsider the matter. In MacDougall v. Sisely the judge dismissed the motion but without prejudice to it being renewed. The use of “wait and see” in this way demonstrates the willingness of the court to be flexible in its approach to the novel issues the pandemic has presented. It may be that where the overall administration of justice is the concern, this approach will not be appropriate. If the concern becomes the ability of the court to deal with an ever-mounting backlog, delaying the decision may not assist in responding to that growing concern. That is for another case, on another day.

[79] For this day, we follow suit.

[80] Before doing so we note that the order of the motion judge is interlocutory so leave to appeal is required. This has not been mentioned because at the outset of the hearing, after some discussion with the court, it became apparent that there was no longer any objection to leave being granted.

Conclusion

[81] Leave is granted. The appeal is granted without prejudice to the motion 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.

Costs

[82] Costs were reviewed with counsel. Pursuant to their agreement, cost to be paid by the plaintiff, in the following amounts: to Jacques Poitras $19,200 all in, to Security National $19,200 all in and to Security National in company with TD Insurance Meloche Monnex $8,500, all in.

Lederer, J.

I agree _______________________________

D. Wilson, J.

I agree _______________________________

Trimble, J.

Released: November 16, 2020

CITATION: Louis v. Poitras, 2020 ONSC 6907

DIVISIONAL COURT FILE NO.: 350/20

362/20

DATE: 20201116

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lederer, D. Wilson, Trimble JJ.

BETWEEN:

FIRMA LOUIS and MARCDERE LOUIS

Plaintiffs (Respondents)

– and –

JACQUES POITRAS and SECURITY NATIONAL INSURANCE COMPANY

Defendants (Appellants)

AND BETWEEN:

FIRMA LOUIS

Plaintiff (Respondent)

– and –

TD INSURANCE MELOCHE MONNEX and SECURITY NATIONAL NSURANCE

Defendants (Moving Parties/Appellants)

REASONS FOR JUDGMENT

Released: November 16, 2020

[^1]: Civil juries were established in 1792, through the second Act of the legislature of Upper Canada (An Act to establish trials by jury, 1792, 32 Geo. 3, c. 2 (Upper Can.)). Until 1856, the only form of civil trial available in the common law courts of Upper Canada was trial by jury. In that year the Common Law Procedure Act permitted a judge alone trial if the parties consented (1856, 19 Vict., c. 43). Even so the parties could still “require” trial by jury by serving notice to the court and to the opposite party (The Law Reform Act of 1868, 32 Vict., c. 6 (Ont.), s. 18(1).

[^2]: Girao v. Cunningham, 2020 ONCA 260 at para. 160 citing McDonald-Wright v. O’Herlihy 2007 ONCA 89, 220 O.A.C. 110 at para. 13 in turn citing Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. 2002 45019 (ONCA), 60 O.R. (3d) 665 (C.A.).

[^3]: King v. Colonial Homes Limited and Others, 1956 13 (SCC), [1956] SCR 528 at p. 533.

[^4]: The Charter of Rights and Freedoms ss. 2 and 7 state:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[^5]: McLeod v. Canadian Road Management Company, 2018 ONSC 2186 at para. 29.

[^6]: King v. Colonial Homes Limited and Others, supra (fn.3) at p. 533. In Vacchiano v. Chen 2020 BCSC 1035 the significance of the availability of a civil jury is described by the Master as follows:

Although not a “right” (see, e.g. Waymark v. Barnes (1995), 1995 1972 (BC CA), 3 B.C.L.R. (3d) 354 (C.A) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2017 BCCA 324), the importance of the availability of a jury trial in civil cases has been echoed in many decisions in our courts.

[^7]: R.S.O. 1990, c. C. 43.

[^8]: The Courts of Justice Act, ibid, S. 108 (2) states:

The issues of fact and the assessment of damages in an action shall be tried without a jury in respect of a claim for any of the following kinds of relief:

1. Injunction or mandatory order.

2. Partition or sale of real property.

3. Relief in proceedings referred to in the Schedule to section 21.8.

4. Dissolution of a partnership or taking of partnership or other accounts.

5. Foreclosure or redemption of a mortgage.

6. Sale and distribution of the proceeds of property subject to any lien or charge.

7. Execution of a trust.

8. Rectification, setting aside or cancellation of a deed or other written instrument.

9. Specific performance of a contract.

10. Declaratory relief.

11. Other equitable relief.

[^9]: The Courts of Justice Ac, supra (fn. 7), s. 108 (3).

[^10]: R.R.O. 1990, Reg. 194.

[^11]: 2006 34916 (ON CA), 83 O.R. (3d) 660 (ONSC).

[^12]: Cowles v. Balac, supra (fn. 11) at para. 37.

[^13]: Ibid at para. 38.

[^14]: Ibid at para. 48.

[^15]: Belton v. Spencer 2020 ONSC 5327 at para 25 referring to Vacciano v. Chen, supra (fn. 6) at para. 32.

[^16]: Ibid (both Belton at para. 25 and Vacchiano). In referring to Vacchiano the judge, in Ontario noted a difference in the applicable rules:

Rule 12-6 (5)(a) and (b) (iii) of the BC Rules provide guidelines on when a civil jury notice should be struck. It provides that a motion to strike the jury may be brought on the ground that “the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action.” There is no equivalent provision under r. 47.02 of Ontario’s Rules of Civil Procedure…

[^17]: Apart from Cowles v. Balac, ibid, see Kempf v. Nguyen, 2015 ONCA 114 at para. 119 referred to in Girao v. Cunnungham, supra (fn. 2) at para. 162 and see Graham v. Rourke, (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at para. 6 (under the heading “II. DID THE TRIAL JUDGE ERR IN DISCHARGING THE JURY?”).

[^18]: Cowles v. Balac, supra (fn. 11) at para. 36 referring to King v. Colonial Homes Limited and Others, supra (fn.3) at p. 533.

[^19]: Cowles v. Balac, ibid, at para. 40 and Graham v. Rourke, supra (fn. 17) at para. 7 (under the heading “II. DID THE TRIAL JUDGE ERR IN DISCHARGING THE JURY?”) both quoting Kostopoulos v. Jesshope (1985) 50 O.R. (2d) 54 at pp. 69-70, 1985 2047.

[^20]: The Charter of Rights and Freedoms s. 11(f) provides:

11. Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

[^21]: See fn. 12 herein and, in particular, the quotation from Cowles v. Balac, supra (fn. 11) at para. 36 found there.

[^22]: R.S.O. 1990, c. I.8.

[^23]: Ibid at ss. 267.5 (1), (2) and (3).

[^24]: Louis v. Poitras, 2020 ONSC 5301at paras. 13, 24 and 30.

[^25]: Insurance Act, supra (fn. 20) at ss. 267 (7), (8), (8.1), (8.1.1), (8.2), (8.3), (8.4) and (8.5).

[^26]: Louis v. Poitras, supra (fn. 22) at para. 15.

[^27]: Ibid at para. 17.

[^28]: Affidavit of Andrew Cottreau sworn on August 17, 2020 at para. 15.

[^29]: Rules of Civil Procedure r. 39.01 (4).

[^30]: Louis v. Poitras, supra (fn. 22) at para. 42.

[^31]: Supra (fn. 5).

[^32]: It was alleged that the mother suffered from “Munchausen syndrome by proxy”. This was described by the judge as “a rare mental health condition in which a parent or caregiver may actually make a person sick or appear sick in order for the caregiver to be seen as heroic or to garner sympathy and approval.” (see: McLeod v. Canadian Road Management Company, supra (fn. 5) at para. 18).

[^33]: McLeod v. Canadian Road Management Company, supra (fn. 5) at paras.23, 24 and 28.

[^34]: Ibid at para. 29.

[^35]: Supra (fn. 2).

[^36]: Ibid at paras. 169 and 172.

[^37]: Ibid at para. 171.

[^38]: Ibid at paras. 170 and 175.

[^39]: Ibid at para. 32.

[^40]: 2020 ONSC 5377.

[^41]: Ibid at para. 33.

[^42]: Ibid at para. 34.

[^43]: Ibid at para. 34 quoting Blencoe v. British Columbia (Human Rights Commission, 2000 SCC 44, 2 SCR 307 at para. 140.

[^44]: 2014 SCC 7, [2014] 1 SCR 87.

[^45]: Belton v. Spencer, supra (fn. 40) at para. 35 quoting Hryniak v. Mauldin, ibid (fn. 43) at para 22 (the title).

[^46]: Belton v. Spencer, ibid (fn. 40) at para. 35 quoting Hryniak v. Mauldin, ibid (fn. 43) at para. 25.

[^47]: Belton v. Spencer, ibid (fn. 40) at para. 35 quoting Hryniak v. Mauldin, ibid (fn. 43) at para. 28.

[^48]: Louis v. Poitras, supra (fn. 22) at para. 46.

[^49]: Online: Ministry of the Attorney General.

[^50]: Ibid Chapter 1, p. 1.

[^51]: Ibid (1.1 Setting the Stage: The need for the Review (3rd paragraph)).

[^52]: [1995] O.J. No. 3128 (Gen. Div.).

[^53]: 1990 45 (SCC), [1990] 2SCR 1199.

[^54]: Ibid at para. 26.

[^55]: Louis v. Poitras, supra (fn. 22) at para. 59.

[^56]: Ibid at para. 60.

[^57]: Ibid at para. 61.

[^58]: Cowles v. Balac, supra (fn. 11) at para. 42.

[^59]: Supra (fn. 17) at para. 6 (under the heading “II. DID THE TRIAL JUDGE ERR IN DISCHARGING THE JURY?”).

[^60]: See fn. 19 above.

[^61]: Black’s Law Dictionary Free Online Legal Dictionary, 2nd Ed. Referring to Treloar v. Biggs L.R. Exch. 155.

[^62]: Belton v. Spencer, 2020 ONCA 623 at para. 75.

[^63]: 2020 ONSC 5727.

[^64]: Ibid at paras. 2, 6 and 8.

[^65]: Belton v. Spencer, supra (fn. 62) at para. 75.

[^66]: Belton v. Spencer, supra (fn. 40) at para. 7.

[^67]: Ibid at paras. 8, 9, 10 and 11, the quotation is at para. 43.

[^68]: Ibid at para. 45.

[^69]: 2020 ONSC 5523.

[^70]: Ibid at p. 2 In making this observation the judge in Higashi v. Chiarot referred to Desbiens v, Mordini (incorrectly cited as Vesbiens v. Mordini) 2004 at paras. 31 and 35, MacLeod v. Canadian Road Management Company, supra (fn. 5) at para. 32 and Gervais v. Kapasi (incorrectly cited as Gerdis v. Kapasi), supra (fn. 52) and see the quote at fn. 54.

[^71]: Ibid at the second page.

[^72]: 2020 ONSC 6632.

[^73]: Ibid at para. 8.

[^74]: Ibid at paras. 11, 12 and 13.

[^75]: Ibid at paras. 14, 15 and 16.

[^76]: Ibid at para. 17.

[^77]: Ibid at para. 37.

[^78]: Belton v. Spencer, ibid (fn. 40) at para. 3.

[^79]: Ibid at para. 43.

[^80]: Reply Factum of the Appellant Security National at para. 2 (III).

[^81]: Ibid at para. 2 (II).

[^82]: MacLeod v. Canadian Road Management Company, supra (fn. 5) is an example.

[^83]: Belton v. Spencer, ibid (fn. 40) at para. 38.