Desando v. Canadian Transit Company, 2017 ONSC 667

Desando v. Canadian Transit Company, 2017 ONSC 667

CITATION: Desando v. Canadian Transit Company, 2017 ONSC 667

COURT FILE NO.: CV-13-19777

DATE: 20170126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Giuseppe Desando, Immacolota Desando, Raffaele Desando, Giulio Desando, Joseph Anthony Desando and Stephen Chaborek

Plaintiffs/Responding Parties

– and –

The Canadian Transit Company

Defendant/Moving Party

William V. Sasso and Sharon R. Strosberg, for the Plaintiffs/Responding Parties

Sheila Block, Rachael Saab and Emily Sherkey, for the Defendant/Moving Party

HEARD: January 4, 2017

reasons on motion to strike jury notice

carey j.:

1The defendants, The Canadian Transit Company (“CTC”) have moved to strike the jury notice in this matter that is set to proceed before me on March 6, 2017. CTC says that the court cannot be assured the jury in this case would be impartial in making factual determinations regarding CTC’s conduct and motives because of a “myriad of negative, defamatory and accusatory statements about CTC, its owners and employees” that have dominated public discussion in Windsor for many years. The plaintiffs have resisted the motion and oppose it as lacking a foundation and, in any event, being premature.

2For reasons set out below, I have concluded that the motion should be granted and the jury notice struck.

FACTS

3The plaintiff Chaborek is a resident of the Old Sandwich Town area of Windsor and the five Desandos together own two rental properties in the same area. They are suing in nuisance the CTC, a privately owned corporation, which operates and maintains the Ambassador Bridge. The plaintiffs claim that the defendant has unlawfully allowed the properties that they purchased in the vicinity of the bridge to deteriorate and thus reduced their property values and harmed the entire neighbourhood. They seek punitive damages in the amount of $15 million in addition to other relief.

4The defendant corporation states that they purchased all of the properties they currently own in the area for fair market value from willing purchasers, between 1995 and 2013, and have maintained the properties within standards set by the municipality. They acquired the properties for the purpose of expanding the bridge and intended to demolish all of the houses and appropriately landscape the area upon the completion of the second bridge span. They say that they have been stopped from completing demolition by the City refusing to issue permits.

5Counsel for the CTC has produced on this motion a three volume motion record consisting of the affidavit of Dan Stamper, president of the CTC and the Detroit International Bridge Company (“DIBC”) with attachments. It sets out some of the history of the CTC’s plans for the bridge expansion and the reasons for their acquisition of property in the Old Sandwich Town area.

6The CTC maintains that the properties were purchased in order to fulfill its mandate to maintain and operate the bridge. They say they need the properties for “maintenance, operation, security and repair and expansion needs and obligations” with respect to the Ambassador Bridge. They say it has always been their intention to demolish the homes and replace many of them with a landscaped green space. This has not happened, they argue, because of steps the City of Windsor has taken to prevent them from demolishing the buildings on the property. By-laws passed by the City which have had the effect of preventing demolition of the houses have been challenged in the courts in ongoing litigation that has gone to the Supreme Court of Canada. Meanwhile, the houses owned by the CTC remain unoccupied and boarded up. The defendant says that the buildings are being maintained in accordance with the City’s property standards by-laws. They say, as well, that there are multiple reasons that they will argue at trial that have had an effect on property values in the area. They say that they have made multiple attempts to purchase the properties owned by the plaintiffs at fair and above fair market value.

7The Stamper affidavit and multiple attachments (running to 1,427 pages) sets out in detail the CTC’s project for constructing a new six lane bridge to replace the existing four lane bridge. The affidavit stresses the obligations the CTC sees that it has to: 1) maintain and update the bridge; 2) develop and expand the customs plaza; and 3) address security considerations associated with operating the bridge. The affidavit sets out in detail the three phase construction enhancement plan which culminates in the proposed construction of a six lane cable stage bridge span to the west of the existing span.

8At paragraph 29 of the affidavit, Mr. Stamper details letters in 1999 from the then mayor of the City of Windsor and the Province of Ontario that he asserts supported the need for the strategy that the bridge expansion plan is part of. The affidavit sets out the CTC’s position that it will be necessary for the trier of fact to understand the complex history of this strategy in order to resolve if the defendant is liable for damages due to the present state of the houses that they own in Old Sandwich Town.

9In October 2013, after the issuance of this action, the City of Windsor issued 114 orders to repair buildings owned by the CTC. When those orders were appealed to the Property Standards Committee of the City, they were amended unanimously by the committee and the CTC was ordered to demolish buildings on 83 of the properties and remediate 31 of the properties previously designated as having heritage value by the City. The City has appealed the Property Standards Committee’s order relating to the demolition of certain properties and the CTC has appealed the remediation order on the remaining heritage designated properties.

10Those orders are set out at tab OO and PP of the Stamper affidavit (Vol. 2). The reaction from the local councillor, Mr. Jones, and then mayor Francis is set in The Windsor Star column of Anne Jarvis of October 29, 2013, “Who do they think they are?” at tab QQ. The Windsor Star cartoon depicting the Windsor Property Standards Committee as trained seals and a prison outfit clad Matty Moroun as the trainer is at tab RR.

11Volume 3 of the motion record has attachments to Mr. Stamper’s affidavit of articles, columns, editorial cartoons, editorials, numerous letters to the editor and social media comment that the applicant, CTC, files in support of their argument that the local public discussion has been dominated by a myriad of negative defamatory, one-sided and unfair depiction of the CTC and its position about the expansion of the bridge.

12The plaintiffs dispute the methodology for the selection of these articles by the plaintiffs and that it is representative of widely held opinions in Essex County. It points out that some of the articles go back over ten years. It says that there is not sufficient evidence to demonstrate that an unbiased jury could be found for these issues. It says that many of the articles deal with matters not in issue in this litigation.

13The plaintiffs also rely on the decision earlier in this litigation by Gates J. refusing consolidation of this case and others brought by residents of Sandwich Town which he emphasized preserving the plaintiffs here right to a jury trial. He was also concerned about the delay that a consolidation of this claim with the others might bring, especially in light of the age of Mr. Chaborek (94). He did not have before him in that case the argument and the evidence brought in this motion by the defendant regarding difficulty in finding an impartial jury.

ANALYSIS

14A right to trial by jury is an important substantive right for civil cases but not an absolute right. The onus is on the moving party to demonstrate “that justice to the parties will be better served by the discharge of the jury”: see Cowles v. Balac, 2006 CanLII 34916 (ON CA), [2006] O.J. No. 4177, at

para. 37. The Ontario Court of Appeal confirmed that the court on such a motion as this is given rather broad discretion but that the test is a sensible one. At para. 38 of its decision, the court stated:

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.

15I am satisfied that the material set out in three volumes filed as the moving party’s motion record confirms a steady portrayal of the principals behind the CTC, the owner of the Ambassador Bridge, as dishonest, criminal and motivated by greed. The Ontario Court of Appeal in Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59, at para. 175, noted the potential for jurors to be adversely affected by prejudicial information heard outside of the courts as something that must be guarded against the interests of fair trial and justice:

Clearly some jurors will be able to follow their oaths and disabuse themselves of prior information they may have learned about the accused or the case. Our faith in juries is based on their willingness to do so. However, some jurors may not be able to do so, or may not realize that they have been influenced or affected by pre-trial publicity. Further, in some instances, depending on the nature of the prejudicial information, it may be impossible for even the most conscientious jurors to disabuse themselves of that information.

16Our nation’s highest court dealt with the risk of pre-trial publicity in a case involving a television program “The Boys of St. Vincent” to be broadcast during the trial of Mr. Dagenais for charges similar to those depicted in the fictional program. The Supreme Court of Canada distinguished cases involving “a period of sustained pre-trial publicity concerning matters that would be the subject of the trial” from cases involving “identifiable and finite sources of pre-trial publicity.” In Dagenais v. Canadian Broadcasting Corp., 2015 QCCQ 1091, the court stated at para. 92:

In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

17The Quebec Court of Appeal subsequently in Flahiff and Lavoie v. Macdonell, 1998 CanLII 13149 (QC CA), [1998] R.J.Q. 327, stated at para. 38:

I would, respectfully, go somewhat further. The “fairness” of a trial is not limited to a fair outcome or verdict, although that, of course, is critically important. A fair trial also involves the fairness of the process in which it is to be conducted. No accused should have to face his trial in an ongoing torrent of unfair publicity. No judge or jury should have to strain to banish unfair and unsupported publicity from their minds so that they can reach an impartial verdict based on the evidence. Fairness in a trial involves, in some measure, the impartiality and serenity of the atmosphere in which the trial is conducted.

18Civil parties are not able to challenge a juror for cause as in criminal context in Ontario which has led to the resort to motions for striking the jury notice. In the criminal context, the Supreme Court of Canada in R. v. Find, 2001 SCC 32, set out a two-fold test when juror impartiality was questioned:

As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality.

CONCLUSION

19I am satisfied that CTC has addressed and met the two requirements to establish juror partiality and that justice would be better served by striking the notice. On the basis of the material before me, it is clear that there is a widespread negativity and animosity in the Windsor and Essex community against the owners of the bridge and its principals, especially Mr. Matty Moroun. It would not be a stretch to conclude that many people in the community regard Mr. Moroun as “public enemy number 1”. After their brief imprisonment on contempt charges in the United States, he and Mr. Stamper, his associate have seldom been displayed in the editorial cartoon pages of the Windsor Star not attired in classical prison uniforms. Criticism and public ridicule have not been limited to the press but is widespread in social media based on the material before me. The animosity in the community has arisen not only in the context of the Ambassador Bridge but over the long time ownership of the former Amtrak railway station prominently visible from Windsor and, in Windsor itself, the ownership and demolition of the former Abar’s Tavern. The latter property has brought more negative criticism of the CTC and Mr. Moroun and the fencing surrounding that property has been the object of much comment.

20The reaction to the Property Standards Committee decision is illustrative of the level of feeling in the community regarding the fate of the houses adjacent to the bridge. The Jarvis article challenged the legitimacy of the committee’s decision and their qualifications. They are referred to in the article as the “Four Stooges” and the meeting as a “circus”. In an editorial cartoon they were depicted as trained seals. Subsequently, one member of the committee resigned. Then councillor, now mayor, Dilkens summarized the decision as “incomprehensible” and the local councillor Ron Jones commented that “If I didn’t know any better, I’d say (the committee vice chair) was reading from somebody else’s playbook”. Mayor Francis was clear that the committee “was influenced by the Ambassador Bridge.” The whole episode prompted Ms. Jarvis to ask, “Has he (in reference to the committee vice chair) been living under a rock? Or has he been co-opted by the bridge.”

21This motion is not about who is right in the long-running battle between the City of Windsor and the bridge. Nor is it about the freedom of the media to comment and critique. Rather, it is about the likely cumulative effect of the predominately negative coverage on the pre-disposition of potential jurors on issues central to this litigation. There is substantial evidence before me that could lead to the conclusion that to use Ms. Jarvis’s phrase, one would have to be “living under a rock” in this community not to have been exposed to a negative opinion of the defendant and its position.

22I am satisfied that there is a real danger that the cumulative effect of all of the negative commentary over more than a decade could very well lead members of a jury to be predisposed against the defendants. Without any mechanism to appropriately measure or guard against the effect this might have on jurors, it would be difficult to be certain if a verdict against the defendants and significant punitive damages was a result of pre-disposition. This is not a situation where the court will be assisted by taking a ‘wait and see’ position. I have concluded that the interests of justice are best served by granting the defendant’s motion.

23The jury has a place to play in our civil justice system but it is not the exclusive method for trying cases that may involve the application of community standards. Judges sitting alone have long had the obligation and responsibility of interpreting and applying community standards in a variety of different cases. I am satisfied that this case continuing as a trial before myself sitting alone can properly do justice to both parties and ensure a trial regarded by both as a fair one. Given that this is an ongoing trial issue, I consider it appropriate to deal with any costs sought at the completion of the trial.