Court File No. CV-14-61439
SUPERIOR COURT OF JUSTICE
CIVIL COURT
B E T W E E N:
MELONIE HIGASHI
Plaintiff
-and-
ANDREA CHIAROT AND GUY CHIAROT
Defendants
REASONS FOR JUDGMENT
HEARD REMOTELY BY THE HONOURABLE JUSTICE P. ROGER
on September 1, 2020, for an OTTAWA, Superior Court proceeding
APPEARANCES:
J. Obagi Counsel for the Plaintiff
P. Santini Counsel for the Defendants
SUPERIOR COURT OF JUSTICE
CIVIL COURT
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR JUDGMENT
1
PLEASE NOTE: PROCEEDINGS WERE RECORDED VIA TELECONFERENCE. PORTIONS OF THIS TRANSCRIPT CONTAIN A HIGHER THAN USUAL NUMBER OF [INDISCERNIBLE] NOTATIONS DUE TO TECHNICAL FAILURE AND POOR QUALITY OF THE AUDIO, AND SOME WORDS MAY NOT HAVE BEEN CAPTURED ON AUDIO DUE TO INTERMITTENT FADING AND/OR MUFFLING OF MICROPHONE.
WITH THE EXCEPTION OF THE COURT STAFF AND PARTIES INVOLVED IN LIVE VIDEO LINK, ALL PARTIES ARE PARTICIPATING IN THIS HEARING VIA TELEPHONE CONNECTIONS FROM REMOTE LOCATIONS AND ARE SPEAKING THROUGH JUDICIAL MICROPHONE LOCATED ON ONE CHANNEL. AT TIMES AUDIO RECORDING DOES NOT MEET REQUIRED STANDARD AS DULY NOTED HEREIN.
Legend
[sic] – Indicates preceding word has been
reproduced verbatim and is not a transcription
error.
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Phonetically.
Transcript Ordered:. . . . . . . . . . . . . September 1, 2020
Transcript Completed:. . . . . . . . . . . . September 7, 2020
Transcript Submitted for Judicial Review: . September 7, 2020
Approved by Roger, J.:. . . . . . . . . . . .September 14, 2020
Ordering Party Notified: . . . . . . . . . . September 14, 2020
TUESDAY, SEPTEMBER 1, 2020
PLEASE NOTE: PROCEEDINGS WERE RECORDED VIA TELECONFERENCE. PORTIONS OF THIS TRANSCRIPT CONTAIN A HIGHER THAN USUAL NUMBER OF [INDISCERNIBLE] NOTATIONS DUE TO TECHNICAL FAILURE AND POOR QUALITY OF THE AUDIO, AND SOME WORDS MAY NOT HAVE BEEN CAPTURED ON AUDIO DUE TO INTERMITTENT FADING AND/OR MUFFLING OF MICROPHONE AND A FORM 2 CERTIFIED TRANSCRIPT OF THIS COURT HEARING CANNOT BE PRODUCED FOR REASONS AS DULY NOTED THROUGHOUT.
WITH THE EXCEPTION OF THE COURT STAFF AND PARTIES INVOLVED IN LIVE VIDEO LINK FROM POLICE STATION, ALL PARTIES ARE PARTICIPATING IN THIS HEARING VIA TELEPHONE CONNECTIONS FROM REMOTE LOCATIONS AND ARE SPEAKING THROUGH JUDICIAL MICROPHONE LOCATED ON ONE CHANNEL. AT TIMES AUDIO RECORDING DOES NOT MEET REQUIRED STANDARD AS DULY NOTED HEREIN.
R E A S O N S F O R J U D G M E N T
Transcribed verbatim as spoken on the record for
purposes of judicial review and can be checked for accuracy by listening to the Liberty DCR audio recording
0411_CR34_20200901_114737__10_ROGERP.dcr
ROGER, J. (Orally):
Leave is required in order to bring a motion once a party has set an action down for trial (Rule 48.04 of the Rules of Civil Procedure).
In this case, counsel for the Defendants indicated at the outset, in answer to my question, that they were not opposing leave being granted to hear this motion.
I agree because, in my view, no matter what test you apply on the leave question – whether you apply the substantial or unexpected change of circumstances since the filing of the trial record, or whether you apply whether it is necessary in the interest of justice, leave should be granted and is granted because determining how this action is to proceed to trial in view of the ongoing pandemic is in the interest of justice, and, in any event, the current pandemic has certainly created a substantial or unexpected change of circumstances since the filing of the trial record, and that is clearly undisputed.
Leave is therefore granted to proceed with this motion.
The second point that I will put on the record is that I informed the parties of certain facts that I consider taking judicial notice of and the parties did not object.
Indeed, at the outset of Mr. Santini’s presentation I told the parties what information I had from speaking with either court staff or my colleagues.
Particularly, I relayed to counsel that I spoke with RSJ MacLeod about this motion, and specifically about the probability of conducting a jury trial versus conducting a judge alone trial. RSJ MacLeod indicated that we are working hard to get criminal jury trials going. That we are doing all we can to try and get that going, such as exploring possibilities of extending the jury box, putting plexiglass, and so forth, and that we are building – there’s one built now, and we are building another adapted courtroom – well maybe two others – I am not sure from my notes - [indiscernible...audio quality is distorted] [indiscernible...audio quality is distorted] – two other criminal jury trial courtrooms where we would add extended jury box to allow two meters between each juror allowing for 12 jurors. So, we are working on that now and we’re hoping to have that ready by January.
I understand that once those courtrooms are ready, they will accommodate criminal jury trials, and that if ever there is some time in between that maybe we could then accommodate civil jury trial, but RSJ MacLeod indicated that he really doesn’t know if this would be possible. [indiscernible...audio quality is distorted]....
UNIDENTIFIED SPEAKER: Right.
THE COURT: So, at present the civil jury side is unknown. He 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 that this was very unlikely. He mentioned that right now there are no civil jury trial proceeding, but, of course, he said that this is not indefinite. At some point, we are working on this, we are trying to get them going, and this cannot be indefinite. At some point, we will resume civil jury trials, but he did say that we don’t know when that will be.
I also sent an email to Court staff and asked if she could assist by indicating when we could hear a four-week civil jury trial versus a judge alone civil trial. Her answer back to me was, essentially, four-week virtual trial non-jury, January 25, 2021, onward; four-week civil jury trial, unknown. Then I forwarded this information to RCJ MacLeod, simply asking if he agreed and his answer was that he did.
I also sent an email to my colleague, head of civil litigation in Ottawa, Justice Gomery. She called and informed me that she believes that in Ottawa we could hear a judge alone civil trial at any time in the near future. She indicated that she believes that we could hear it next week, or before the New Year, and so her information was that we could hear a judge alone civil trial four weeks in duration really any time.
She said judge alone trials anytime, civil jury trials, we don’t know. And I asked when we would know and she doesn’t know. I think that mirrors what Justice MacLeod said.
The lawyers did not oppose for the purpose of this motion the fact that I have this information and the lawyers did not argue that this was inappropriate judicial notice.
Both lawyers agreed that I could take judicial notice of this information. Indeed, Mr. Santini does not dispute that a judge alone civil trial could be heard now. What his clients dispute is that we don’t know when a civil jury trial could be heard, and that we need to know that in order to assess the difference.
R E C E S S (12:47 p.m.)
U P O N R E S U M I N G (2:55 p.m.)
THE COURT: I want to confirm that the reporter is able to hear me, and I will move my iPad closer Mr. Reporter, can you hear me correct?
CLERK REGISTRAR: Yes, I can hear you.
THE COURT: Okay, perfect, I want you to absolutely indicate if ever you can’t hear me, okay? Is that okay?
COURT REPORTER: Yeah.
THE COURT: Perfect. Thank you.
... COURT CONTINUES WITH REASONS FOR JUDGMENT
As indicated before we adjourned briefly, I granted leave to hear this motion, which was not opposed, and I explained what information I was taking judicial notice of, and that was not opposed.
The Plaintiff brings this motion seeking to strike the jury notice filed by the Defendants. The Plaintiff’s only argument on this motion relates to prejudice resulting from delays in the hearing of a four-week civil jury trial given the pandemic situation.
The Plaintiff argues that we do not know when civil jury trials will resume, and that this uncertainty constitutes sufficient prejudice for the striking of the jury notice. She also argues that she is prejudiced by the thirty percent statutory loss for loss of income prior to trial for motor vehicle accidents and that she is prejudiced as well in the availability of medical care and treatment prior to trial, because irrespective of the advance payment made by the Defendants, she will not be able to receive the medical care and treatment that she requires until after trial.
The Defendants argue that it is premature to decide the motion because although we do know that this matter could be heard – that this trial could be heard as a judge alone trial, either before the end of this year or very early in the new year, we do not know when this action could be heard as a jury trial, and therefore, we cannot compute the prejudice, and cannot properly conduct the required weighing exercise until we know the latter. The Defendants argue that we need to wait and see until we know when a jury trial could be heard by comparison to a judge alone trial.
On the issue of striking paragraphs from the affidavit filed by the Plaintiff, I say briefly what follows. The Defendants seek to strike paragraphs 4, 5, 6, 7, 8, 11, 13 and 14 of the affidavit filed by the Plaintiff on this motion. This affidavit was prepared by a paralegal in the office of Plaintiff’s counsel. The Defendants argue that these paragraphs should be struck because we do not know the source of the information, because their content is hearsay, because some of the information provided is provided by counsel who is arguing this motion and who will be counsel at trial, and because it is expert evidence inappropriately filed on such a motion.
I find, that the words “debilitating” and the words “for the remainder of her life”, at paragraph 4 of the affidavit relied upon by the Plaintiff are to be struck because they are inadmissible opinion evidence. Otherwise, I find that the disputed paragraphs are not offensive because that information is provided only for context, not for the truth of its content, and because if admitted for that limited purpose those paragraphs relate to uncontentious issues.
In that regard, I rely upon the decision of Justice MacLeod in Narouz v. Desjardins Financial Security, 2014 ONSC 4641, at paragraphs 17 and 18.
With regards to the motion seeking to strike the jury notice, I say what follows.
Both parties agree that the decision of the Ontario Court of Appeal in Cowles v. Balac, 2006 34916 (ON CA), 2006 83 OR 3rd 660 provides the applicable test.
As well, Section 108 of the Courts of Justice Act provides that a party may, in stated circumstances, require a trial by judge and jury and Rule 47.02 of our Rules of Civil Procedure allows for motions to strike a jury notice on stated grounds.
Indeed, the right to a jury trial in Ontario is a substantive right that should not be lightly interfered with unless there is just cause or cogent reasons to do so. I make reference to the decision of the Court of Appeal in Cowles, at paragraph 36.
The onus is on the party seeking to strike a jury notice to show to the court why the jury should be discharged. As indicated in Cowles, at paragraph 37,
“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.”
This discretion to the court makes it clear that a jury trial is, however, not an absolute right. The judicial discretion is subject to what is sensible, and in the appropriate case the right to a jury trial may have to yield to practicalities where that is in the interest of justice. Cowles informs us that it is a sensible test of assessing how best to do justice between the parties. The object of a civil trial is to do justice between the parties and, therefore, the court has discretion to decide whether, on the evidence of a specific case, justice requires the party’s action to be tried without a jury.
Rule 1.04 of our Rules of Civil Procedure informs us that we need to interpret the rules in a manner to secure the just, most expeditious and least expensive determination of every civil proceeding on its merit. These principles of doing what is just, as quickly as possible and as cheaply as possible are not new and are not applicable only to how we interpret our rules of civil procedure.
For example, in Cowles, at the end of paragraph 38, the Ontario Court of Appeal says,
“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 the case with or without a jury.”
Similar language of doing what is necessary to arrive at justice between the parties is mentioned by the Supreme Court of Canada in its decision in Hryniak v. Mauldin. Neither party to an action has an unfettered right to determine the mode of trial – it depends on what is the most just manner possible in the circumstances. Delay can result in the discharge of a jury, see for example the decisions in Vesbiens v. Mordini, at paragraphs 31 and 35, MacLeod v. CRMC, at paragraph 32, and Gerdis v. Kapasi.
Indeed, as indicated in Gerdis, there comes a time when disputes have to be resolved. The question in this case is whether we have reached that point in time, or whether we should wait and see until we know when a jury trial might be available.
For reasons that follow, I find that in the very specific circumstances of this case we have reached that point in time, but that, again in the very specific circumstances of this case, the parties may return before me if it becomes known when a jury trial might occur before this matter proceeds to a judge alone trial.
I arrive at the above conclusion, for the following reasons:
It is not known at present when a civil jury trial might be heard in Ottawa.
By opposition, it is known at present that a four week judge alone trial could be heard in Ottawa in the very near future either before the end of this year or early, very early next year.
Here the parties are ready for trial. The facts of this case are specific. This case was scheduled for a four-week civil jury trial to start March 23, 2020, and this trial was adjourned indefinitely because of the COVID pandemic. The parties, it’s not disputed, are both ready to proceed to trial.
Expert reports are, for the most part, dated 2019 and 2020 on both sides, and it would be much more costly to update all or some of these reports at a later date or to update them more significantly at a later date than it would be to do so in the very or near future.
The Plaintiff statutorily loses 30 percent of any pre-trial loss of income she may have prior to trial.
It seems more probable that civil jury trials will be delayed for quite some time, considering the delays with criminal jury trials to date, and considering the resulting backlogs.
The state of uncertainty resulting from COVID-19, for example, whether it will get better, whether it will get worse, whether there will be a second wave, how that will impact us here in Canada, more specifically in Ottawa, how that will impact the civil justice system, how that will impact the availability of a civil trial is very much unknown. This state of not knowing favours a trial by judge alone, at this point in time.
Balancing the risks and the rights of the parties, as well, seems to favour striking the jury notice, considering the existing state of uncertainty highlighted above.
Uncertainty or added uncertainty will result as well if we adjourn this motion for an unknown period of time while we wait and see when we may find out when jury trials will be available in Ottawa. This unknown or this uncertainty, or level of uncertainty is not in the interest of justice as it would probably delay the trial and result in more expenses to both parties.
As indicated by the Supreme Court of Canada in Hryniak, a fair trial requires a process that is proportionate, timely and affordable, and this high level of uncertainty about when a jury trial might proceed in the future would make the probability of achieving these goals much more unlikely.
The unknown delay vis-à-vis the availability of a civil jury trial in Ottawa could be substantial, and we cannot wait and see until we know precisely. We need to move forward with this case in the very specific factual circumstances of this case.
However, should it turn out that the wait and see until we know when a jury trial could occur in this matter (argued by the defendants) is not as long as I fear, then I will allow the parties, in the circumstances of this case, the possibility of returning before me to review if the interests of justice then balance differently, simply because I don’t know when that might be, and we can’t wait forever, yet, if it’s timely then the opportunity is available to the parties. If it’s untimely, it’s not.
As indicated, although we don’t know when a jury trial might be available in Ottawa, we do know that it is uncertain and probably not available in a timely way. However, I recognize that this is an emerging situation and, consequently, on the very specific facts of this case, my decision may be reviewed, as indicated above.
Consequently:
a) an order may issue striking the jury notice;
b) the above is without prejudice to the parties being able to return before me prior to trial should it then be known when a jury trial could proceed for me to consider whether knowing that information the interests of justice would then balance differently.
THE COURT: Is anything else required? If not, we’ll talk about costs.
MR. OBAGI: If I may, Your Honour, I’m wondering for case management purposes, could we add another bullet to your order, which is that the matter be referred forthwith to trial management as to discuss the trial date, and so that way we’ll know it – it’ll get to Justice Gomery so we can get rolling on the trial?
THE COURT: Thank you. And I apologize. That was my intention, and in my haste to deliver a speedy decision I forgot, but certainly I will add:
c) The parties shall forthwith attend at a trial management conference before Justice Gomery or another judge, if she is not available, which shall be scheduled at the earliest possible date. The purpose of this conference shall be to set a trial date for a four-week civil judge alone trial for this matter.
And maybe we’ll change the paragraphs numbering with (a) being the order striking the jury notice, (b) will be what I just dictated, and (c) will be – Mr. Reporter will type this up – (c) will be “the above is without prejudice to the party”, et cetera, et cetera, a), b) and c).
Is anything else required in order to make this order and ruling effective?
MR. OBAJI: I don’t believe so.
MR. SANTINI: I don’t think so, Your Honour.
THE COURT: Okay. My intent, and – and I hope it’s clear, but if it’s not my intent is that this proceed as quickly as possible to a judge alone trial. The parties are ready; so, we should set as early a date as is possible, given the circumstances of the parties, the lawyers, the court, and that we fix a date, and then the parties prepare for this date.
My intent is, as well, and maybe we need a paragraph, but my intent is, as well, that if ever it becomes known when a jury trial, a four-week jury trial could occur in this matter, if it’s ever – if ever it becomes known when it could occur, and, you know, if it’s in 2023, well maybe I won’t hear about it, or maybe I will. I don’t know. But depending on the [indiscernible...audio quality is distorted] – maybe you’ll wish to come back before me to have me re-balance [indiscernible...audio quality is distorted] – considering the circumstances to decide what’s just and fair in the circumstances. That’s my intent.
Now, the mechanics of this, how this should happen should be simple. You can just ask for an appointment before me and file motion materials. We could have a case conference. You could ask court staff for a quick case conference with me [indiscernible...audio quality is distorted] – timeline me to do, or you could ask for a return of a motion, and you can agree on the filing of your materials amongst yourself, and then just book an urgent time before me.
The intent is that [indiscernible...audio quality is distorted] we nonetheless consider the wait and see that’s argued by Mr. Santini and his clients. It’s just to allow for the very - in my judgment the very remote possibility that we’ll find out before trial. If I’m wrong, and it’s not remote and we find out before trial then it can be addressed, and the concerns of Mr. Santini’s client can be addressed, and to me that’s the balancing that I’m trying to achieve.
MR. OBAGI: Your Honour, I...
THE COURT: [Indiscernible...audio quality is distorted].
MR. OBAGI: ...I wonder if we could have a timeframe? We’re gonna have a new trial date, obviously, set. I wonder if the ability to come back before you should be limited in some way. That it’s to be brought back before you no – no later than 60 days prior to the commencement of the trial, and 30 days prior to the commencement of the trial so that if there’s gonna be that motion it doesn’t end up being the last minute, and I mean, I think I understand your intent, and I think Mr. Santini and I both get it, but I’m wondering if we maybe shouldn’t have a drop dead date in the sense that the motion’s gotta be brought to you. I don’t know Mr. Santini, 30 days before the commencement before the scheduled trial or 60 days before so that there’s no uncertainty going into the – the trial and everybody knows what they’re doing.
MR. SANTINI: I – I don’t have a problem setting a date, I’ve seen (ph) - 30 days before the commencement of the trial makes sense.
THE COURT: I don’t know. I don’t know what your schedule is, gentlemen, and I don’t know what if Justice Gomery says [indiscernible...audio quality is distorted] – we’re available in – in November, and then my difficulty with this is that I’m trying to respect this wait and see, and the right of a party to have a trial by jury. I’m trying to balance that interest as much as I can. I’m not prepared to wait for an unknown period of time, because we’ll wait, and wait, and wait, and wait, and wait until when? So, I’m not prepared to do that.
However, I do recognize that well, what if? I don’t know. Mr. Santini raised a number of arguments. What if the province comes out with a plan before trial? What if we are able to accommodate a civil jury trial? What if this happens a week before trial? What if a week before trial you find out that we could accommodate a four-week jury trial, you know, two months later? Two months later than the judge alone trial?
The wait and see contemplates that such a motion could be heard at the start of trial, or during the trial, or at the end of trial. So, in that sense, I’m not too concerned with the timing of the motion. I’m more concerned with the balancing of both parties’ rights and considering that I don’t know what the future holds, I’m reluctant to put a timeframe on it, because I don’t know. What if – what if we – the week before – the day before we find out we can do a jury trial a month after this trial is scheduled?
MR. OBAGI: [Indiscernible...audio quality is distorted] – point where – and – and if not Mr. Santini was agreeing with - [indiscernible...audio quality is distorted] – both of us are gonna be prepared at the trial. It doesn’t benefit anyone to have sort of an uncertainty out there, and if – if Mr. Santini’s content with the 30 days that gives him the comfort of knowing we’re going. Gives us the comfort of knowing we can line up our witnesses. We know we’re not gonna be hit with a last-minute motion, and it gives a certainty that everybody needs, and it balances the issue.
What’s the likelihood of something happening in those 30 days? Who knows? But it does seem to me that it would serve the purpose of the justice system for all parties, not just the Plaintiff but the Defendant, to have certainty. And all I’m saying is if Justice Gomery gives us a date, let’s say we agree on January 2nd, well then Mr. Santini and I both know if by December 2nd there’s nothing new on the horizon that would suggest that you may want to revisit your decision then we’re done. And we both know what we’re dealing with. We both have our witnesses ready. We both start the trial at some point, there should be sort of a point of no return so that we just deal with it.
And I thought Mr. Santini thought that was okay with you, and I think that gives us the certainty that we both require in order that there’s no uncertainty right up to the courtroom door. I mean, obviously, once the trial starts, I would think it goes, but I’m thinking if we have a 30-day period it gives everyone the ability. You recall it was not so long ago that you were in practice [indiscernible...audio quality is distorted] – trial, and lining up your witnesses, and everything. It’s – it’s a big endeavour. So, it’s not something people would want to have to redo if you can avoid it. That’s why I suggested 30 days.
We’ll see what Justice Gomery or [indiscernible...audio quality is distorted] – of the Trial Management can give us, as far as trial date goes, and then Mr. Santini and his client know that they’ve got that limited period of time to decide whether to bring this motion back before you if there’s something new, because we don’t want to be revisiting this and resulting in an adjournment. That’s sort of the antir (ph) - of your decision. Your decision is moving this thing forward, and I don’t want to build into it sort of an automatic adjournment potentially.
THE COURT: I see your point Mr. Obagi and I’m prepared to do this on consent. It certainly makes sense. I was reluctant to state it as a judicial principle that the motion can’t return before just because these motions to strike can be made at trial – but it’s true that it – it does – that the wait and see doesn’t usually contemplate that the trial is adjourned. In other circumstances the trial would proceed, and it would proceed at the same time, but it would proceed in a different format [indiscernible...audio quality is distorted]. It would proceed as a judge alone trial. There would be no adjournment, whereas here, you are right, there would be an adjournment. It’s very unlikely that the two dates would coincide with one another. That seems impossible.
So, you’re right. I do agree that it is different from that perspective, because usually the wait and see [indiscernible...audio quality is distorted] – contemplates that we start the trial at the same time. There’s no adjournment, the witnesses, nothing – nobody’s prejudiced by costs, and so on and so forth. It’s just the mode of trial because of the complexity known at that time [indiscernible...audio quality is distorted] or because something happened during trial that we need to address.
If you both agree that a certain number of days is reasonable, I’ll fix that time. It can be whatever time the two of you are prepared to agree on, or if you don’t agree I could – I could find that I could agree on – I could decide.
MR. SANTINI: Your Honour, may I? I see your point. I see Mr. Obagi’s point, and I did agree the 30 days would be reasonable. However, your point made me rethink it in that what if within 30 days we find out that we can have a jury trial within a month or two? Then they would handcuff my client; so, I – I – I’m gonna have to change my position on it, only because I don’t want to handcuff my client if the time period is short, and if it is within a month or two then the preparation won’t be wasted, ‘cause it’ll be a short period of time.
THE COURT: I think we can address this in this manner and let me know if you disagree. I [indiscernible...audio quality is distorted] – will not put a timeframe on it, and the circumstances will all be factors in the result of what happens if you ever come back before me, correct? If it’s a month delay; well, then the preparation costs might not be much more because you’ll remember what you’ve done, and it might not be a big factor, but if it’s, say, six months away then well, maybe and it – it requires, like, thousands of dollars of re-preparation cost, well then maybe that’s a factors where – factor where I don’t delay the judge alone trial.
So, we will have to weigh all of that. And so, I would rather – I would rather in the end not put a timeframe on it, and let you, the parties decide if you are going to bother with coming back before me, given the timing, given the cost implications, given the adjournment implications, given all of this, which would all be factors to consider whether in the interest of justice, the balancing requires that the mode of trial be different.
So, I’d rather leave it open for all of those reasons, considering what Mr. Santini has said, and Mr. Obagi, it’s going to be a factor, okay? And – and everything will be a factor, and it doesn’t mean that if there’s a – a jury trial (ph) – availability of a jury trial in three weeks, or three months later, or six months later, it doesn’t mean that relief will be granted. It means, as I’ve said, I will look at the circumstances to decide if the balancing exercise [indiscernible...audio quality is distorted] – resolves differently. But every ingredient going into the balancing exercise will then be looked at, which would [indiscernible...audio quality is distorted] – all of these new ingredients and factors vis-à-vis the cost of preparation, vis-à-vis when we’re adjourning to, vis-à-vis as well the availability of witnesses would be considered together with the known availability of a jury trial.
You might tell me that your experts are all available for those dates, but they’re all not available for the other dates, and so on, and so forth, and then I will decide [indiscernible...audio quality is distorted] as I may be able to, according to the law. But I would think that the two of you could decide that in your wisdom and decide if you’re going to bring that motion on the eve of trial, or if – if after 30 days you’re going swallow your pill and get instructions and make those decisions. But I would rather leave that with the two parties, because I think in that way, I am better balancing everybody’s interests, and I’m better balancing this “wait and see” approach, as well, which was my intent in doing what I did in recognizing that it’s true, we don’t know – the only thing we know for certain here is that we really don’t know when we will be able to conduct a civil jury trial in Ottawa, and so, I think that this would answer that issue.
Now, I’m wondering the mechanism. I mean, the information could be public, but when you attend before Justice Gomery, for example, in order to [indiscernible...audio quality is distorted] – set a judge alone trial for four weeks you could, as well, ask her again, at this point in time, whether she knows when we might be able to set a jury trial. And you could, as well, ask her then if that information ever changes if she or court staff could let you know, and maybe that’s something that I should add to my paragraph b), “that the parties shall forthwith attend to a conference, either a trial management conference or trial scheduling conference before Justice Gomery or another judge if she is not available for the purpose of confirming when a four-week judge alone trial may be heard, and we should add, maybe, “And for the purpose of asking Justice Gomery when could a – a four-week jury trial be heard, and asking the court to inform the parties should the information on the latter ever change.”
And I think, in that way, you would have the clearest possible balancing of everybody’s interests so that we would wait and see, as much as we can.
Without prejudice to the Plaintiff, in the sense that we’re not waiting forever, and nothing happens, we would have a date for a judge alone trial, and so the Plaintiff is not prejudiced. The Defendant is not prejudiced because they have a date and they’re going to trial, and if things change and we find out what we don’t know, when can a jury trial be heard – it can be addressed. The parties may decide not to address it if it’s on the eve of trial, or for other reasons, but at least they’ve got the option, considering the facts of this case, considering the importance of those issues, and the importance of the civil jury in our province.
Okay. So, anything else, or are we at the topic of costs?
MR. SANTINI: I – I think – I think, Your Honour, Mr. Obagi and I spoke on the issue of costs. If you could give us next week? Hopefully, we can resolve it between us, and if we can’t then we can make submissions for you. Is that fair?
THE COURT: Perfect. So, I’ll say paragraph d) will read, “Costs of this motion to be agreed upon between the parties, or else if an agreement between the parties is not possible within the next 10 days then the parties shall provide brief written submissions to me not exceeding five pages per party addressing the issue of costs”, and I would think that the Plaintiff’s submissions would go first, say within 15 days after the 8th, or so, and then the Defendant’s submissions would go thereafter within 20 days and then if there’s any reply by the Plaintiff within 25 days, and you can change that in the order as you prefer.
MR. SANTINI: Yes, that’s fine, Your Honour.
... SPEAKERS CANNOT BE SEPARATED WHEN SPEAKING ON ONE CHANNEL
... MATTER CONCLUDED
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Linda A. Lebeau, acknowledge the foregoing document of the court proceeding pertaining to the matter of Melonie Higashi v. Andrea Chiarot and Guy Chiarot held on September 1, 2020 with named participants conducted VIA TELECONFERENCE and live video feed from unidentified remote locations was produced to the best of my skills and ability and for the reasons set out on page one cannot be certified. Produced from one channel and live video feed recorded on LIBERTY file number 0411_CR34_20200901_114737__10_ROGERP.dcr certified in Form 1 by court-monitor by J. Gauthier.
Date Linda A. Lebeau
Authorized Court Transcriptionist (ACT)
Secretary
*This certification does not apply to the Reasons for Judgment which was judicially edited.