COURT FILE NO.: 16-69656

DATE: 2020/10/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bharati Desai, Plaintiff

AND

Patrick P. Labelle, Defendant

BEFORE: Justice R. Ryan Bell

COUNSEL: David Cutler, for the Plaintiff

Michael Van Dusen, for the Defendant

HEARD: October 13, 2020 by ZOOM videoconference

ENDORSEMENT

Overview

[1] This action is currently scheduled to proceed to a four-week jury trial in Ottawa, commencing on March 8, 2021.

[2] The plaintiff moves for an order striking the defendant’s jury notice and directing that the action be heard by judge alone. She asserts that because of the COVID-19 pandemic and its impact on the administration of justice, the practical reality is that the trial will not proceed in March 2021 or at any time in the near future if the jury notice is not struck. The plaintiff submits that justice would be better served by allowing the action to be heard by judge alone as scheduled, or on a date to be determined at the next trial management court.

[3] The defendant disagrees. He says that the plaintiff’s motion is premature and falls into the realm of “prediction and prophecy” because there is no way for the court to know at the present time what the trial lists will be like after March 2021. The defendant’s position is that there is no evidence to support the plaintiff’s request that the jury notice be struck.

Nature of the Action and Chronology of the Proceedings

[4] This action arises from injuries alleged to have been suffered by the plaintiff as a result of a rear-end motor vehicle collision that occurred on August 20, 2014. Liability and damages will be issues at trial.

[5] The action was commenced on August 18, 2016. On December 1, 2016, the defendant served a jury notice.

[6] The action was set down for trial on August 23, 2018.

[7] The plaintiff attended a defence medical examination in March 2019.

[8] On October 16, 2019, a pre-trial conference was conducted. At the pre-trial conference, the action was scheduled to proceed to trial commencing March 8, 2021, with a jury, for a period of four weeks.

Leave under Rule 48

[9] Because the action has been set down for trial, the plaintiff requires leave to bring her motion under Rule 48 of the Rules of Civil Procedure. There are two tests for granting leave. The more established test requires the moving party show a substantial or unexpected change of circumstances subsequent to the filing of the trial record. Under the second, broader, approach, the court may grant leave where it is in the interests of justice to do so: BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, at para. 12. The defendant does not oppose the request for leave. On either test, I am satisfied that the plaintiff should be granted leave to bring this motion.

The Impact of COVID-19 on Court Operations in Ottawa

[10] Effective March 17, 2020, all but urgent matters in the Superior Court of Justice were suspended due to the COVID-19 pandemic.

[11] On May 13, 2020, the Chief Justice of the Superior Court of Justice issued a Notice to the Profession^1 regarding matters that would be heard virtually during the suspension of the Court’s in-person operations. In the Notice, Chief Justice Morawetz indicated that the Superior Court would not resume in-person hearings of any court matters until July 6, 2020, at the earliest, and would not recommence criminal or civil jury selection or jury trials until September 2020, at the earliest.

[12] On June 18, 2020, Justice Gomery, Local Administrative Judge, Civil, Ottawa, provided Directions to Parties for Re-scheduling 2020 Ottawa Civil Trials.^2 The Directions state that as of September 1, 2020, the Superior Court in Ottawa would resume hearing civil trials using remote technology, with the hope that “this will allow for the resolution of most matters set for trial in 2020 within the next six to twelve months.” The Directions also emphasize:

For the time being, in-person hearings in civil matters will be exceptional. As a result of the ongoing Covid-19 health crisis and the small number of courtrooms that will be available during the phased re-opening of courthouses, civil jury trials will not proceed in Ottawa until January 2021 at the earliest. [emphasis added]

[13] On October 9, 2020, in response to new restrictions announced by the Province for Ottawa, Toronto and Brampton, the Chief Justice announced a temporary scaling back of in-person court appearances, including the suspension of new jury selection in these locations for 28 days.^3

[14] On October 13, 2020 – the day of the hearing – Regional Senior Justice MacLeod stated in a Memorandum to the Profession and Public^4 that the most significant impact of the temporary restrictions on in-person court proceedings in Ottawa will be on new criminal jury trials,

which will have to be temporarily adjourned until it is considered safe to bring together sufficient numbers of people to complete jury selection. Civil jury trials have already been suspended for the rest of this year…

Until the rate of new COVID 19 infections in Ottawa can be brought under control, parties continue to be encouraged to conduct all court hearings virtually. Virtual courts are not affected by the restrictions. We continue to have capacity for in-court matters with appropriate protections in place...includ[ing]...Court rooms equipped with plexiglass barriers...Caps on the number in a court room or in the building. [emphasis added]

[15] Subsequent to the hearing, on October 16, 2020, new jury selection was also suspended in Newmarket for 28 days.

Law and Analysis

[16] In Belton v. Spencer, 2020 ONCA 623, at para. 26, Brown J.A. recently reaffirmed that the substantive right to a civil jury trial is a qualified right: a party’s entitlement to a jury trial is subject to the power of the court under s. 108(3) of the Courts of Justice Act to order that the action proceed without a jury. Relying on the Court of Appeal for Ontario’s decision in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA),[^5] Brown J.A. summarized:

While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”…This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible.”

[17] In Belton, the appellant – the defendant in a personal injury action brought by the plaintiff seeking damages for injuries allegedly suffered when the plaintiff was kicked by the defendant’s horse in May 2010 – moved for a stay of the order of Sheard J. (sitting in the Central East region) striking the jury notice (Belton v. Spencer, 2020 ONSC 5327). The only alleged error of law was that the motion judge did not adopt a “wait and see” approach to the motion to strike. Brown J.A. dismissed the motion for a stay. At para. 30, Brown J.A. relied on the Court’s description of the “wait and see” approach as set out at para. 70 of Cowles:

Over the years, courts have said that, in some cases, when confronted with a motion to strike a jury notice or discharge a jury, it is preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted. Experience has shown that in many instances the anticipated complexities of a case or other concerns giving rise to a motion to dismiss a jury do not materialize or at least not to the extent originally asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so.

[18] As the Court of Appeal observed in Cowles, at para. 71, there is merit to taking a "wait and see" approach in some cases, and perhaps in most. However, a “wait and see” approach is not a rule of law; the Courts of Justice Act and the Rules of Civil Procedure contemplate that i) a judge may strike a jury notice before trial, and ii) a trial judge may dismiss a jury before beginning to hear the evidence: Belton, at para. 31; Cowles, at para. 71. 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. The test confers a broad discretion on a court confronted with a motion to strike a jury notice because,

[a]fter 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: Cowles, at para. 38.

[19] In Girao v. Cunningham, 2020 ONCA 260, the Court of Appeal confirmed that the question for the trial judge is whether justice to the parties will be better served by dismissing or retaining the jury. Writing for the Court, Lauwers J.A. stated at para. 171, “[w]hile 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.”[^6] As Myers J. put it in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, at para. 29, the “right” to a jury trial “is a prima facie procedural entitlement that O’Connor ACJO [in Cowles] noted was not the unilateral preserve of any one party. Like all procedural rights, it yields to the overriding interests of justice it is intended to serve.”

[20] In Belton, Brown J.A. emphasized, at para. 32, that the principles on a motion to strike a jury notice must be applied “in light of calls by the Supreme Court of Canada to remedy the delays endemic to the Canadian civil justice system and implement a ‘necessary culture shift’ in the civil system: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 140; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.” As Myers J. succinctly stated in MacLeod, at para. 30, “[t]o be just a civil resolution of a dispute must not either take too long or be too expensive.”

[21] In addition to Belton, there are several decisions of this court made on motions to strike civil jury notices for pandemic-related reasons.

[22] In Higashi v. Shariot, 2020 ONSC 5523, Roger J. struck a jury notice in an Ottawa motor vehicle accident case that had originally been scheduled for a four-week civil jury trial to start March 23, 2020. The trial was adjourned because of the suspension of the court’s in-person operations. Roger J. considered the plaintiff prejudiced by the thirty per cent statutory loss for pre-trial loss of income, and by the unavailability of medical care and treatment prior to trial irrespective of an advance payment made the defendants. Roger J. focused on the state of uncertainty at that point in time (September 1, 2020) and concluded that it was not in the interest of justice to delay the trial with a resulting increase in expenses to both parties. He struck the jury notice without prejudice to the parties being able to return before him prior to trial should it be known by then when a jury trial could proceed, stating that if the delay in proceeding was not as long as he feared, he was prepared to review if the interests of justice would balance differently.

[23] In Louis v. Poitras, 2020 ONSC 5301 and Coban v. Declare, 2020 ONSC 5580, Beaudoin J. struck the jury notices. In Louis, released on September 9, 2020, Beaudoin J. noted that the plaintiffs had waited seven years for the trials of their actions, the parties were ready to proceed to trial, and any delay would likely require updated expert reports at additional expense. But for the pandemic, the trial of both actions would have proceeded on April 20, 2020. Beaudoin J. observed that in Ottawa, “[i]t is unknown when or how a new jury trial may be heard”; by contrast, at the most recent trial management court counsel were advised that the court could readily fix hearing dates for civil non-jury trials of three weeks or less within the next six months: Louis, at para. 59. Beaudoin J. concluded that unreasonable delay could, by itself, meet the burden of showing that justice to the parties will be better served by the discharge of the jury.

[24] Coban was also released on September 9, 2020. The action was scheduled to proceed to trial the week of November 16, 2020 for five weeks before a judge and jury. The plaintiff moved to strike the jury notice and the defendants moved to adjourn the trial. In Coban, the delay between the event giving rise to the cause of action and the trial date was less than two years; however, the plaintiffs were close to exhausting the financial benefits provided to them through their accident benefits insurer. Beaudoin J. concluded, at para. 59:

The plaintiffs should not be forced to compromise their claims because of their pressing financial needs. It is unknown when a civil jury trial can be heard in Ottawa. These plaintiffs do not need more uncertainty. The jury notice is struck.

[25] In Jiang v. Toronto Transit Commission, 2020 ONSC 5727, Wilson J., sitting in Toronto, declined to order that the plaintiff’s motion to strike the jury be heard on an urgent basis or prior to trial. Wilson J. distinguished Higashi, Louis, and Belton (ONSC) on the basis that in those cases, the prejudice to the plaintiff as a result of an undetermined delay had to be weighed against the defendant’s right to have the action tried by a jury. Wilson J. did not have to consider these same issues because there was no prejudice to the plaintiff and no access to justice issue to be balanced, “since civil jury trials are available in Toronto”: Jiang, at para. 7. Jiang was heard and released in late September, prior to the suspension of new jury selection in Toronto (as well as Ottawa and Brampton) on October 9, 2020.

[26] Finally, in Passero v. Doornkempt, 2020 ONSC 6384, Sheard J. ordered that the defendant’s jury notice be struck. Sheard J. observed that the plaintiffs had been ready for trial since October 2019; the trial would have proceeded in October 2019 but for the fact that a jury could not be assembled; the action would have been tried in October 2020 but for the pandemic; and there was good reason to doubt that the matter would be able to proceed by jury in March 2021.

[27] As in each of these cases, the issue before me is whether the plaintiff has shown that justice to the parties will be better served by striking the jury notice. Each case must be determined on its own facts and the entrenched principles must be applied to the reality the court now faces.

[28] In Higashi, Louis, and Passero, there had been previous adjournments because of the pandemic. The motions in Belton and Coban were heard within days or weeks, respectively, of the scheduled trial date. The parties in each case were ready to proceed to trial and further delay would have caused trial preparations to begin anew at considerable expense. The defendant before me argues that it remains to be seen whether this action will be ready for trial in March 2021, by jury or by judge alone.

[29] I do not accept the defendant’s argument. The plaintiff is ready to proceed to trial. She does not intend to deliver a loss of income report or any further expert reports.

[30] In support of his position, the defendant relies on an outstanding request that the plaintiff attend a defence medical physiatry examination. The plaintiff attended a defence medical examination in March 2019. The plaintiff points out that it was only after she put the defendant on notice in September of her intention to bring this motion that the defence made its request. The issue of whether the plaintiff should be required to attend a second examination may be the subject matter of a separate motion. It does not factor into whether the scheduling uncertainties caused by COVID-19 justify the striking of the jury notice.

[31] By March 2021, it will be more than six and a half years since the collision and four and a half years since the action was commenced. The action was set down for trial in August 2018. The defendant urges a “wait and see” approach and submits that the delay in this case does not justify depriving him of his substantive right to have this matter tried by a jury.

[32] The plaintiff asserts that she should not have to continue to wait for a determination of her claim. She also submits that an adjournment of the trial might lead to a degradation of the evidence. Liability remains an issue for trial. There were no independent witnesses to the accident; accordingly, the viva voce evidence of the parties will be important.

[33] In Ottawa, the reality the court now faces has four components. The first is the suspension of civil jury selection and civil jury trials that occurred on March 17, 2020. The second is the announcement in June 2020 that civil jury trials will not proceed in Ottawa until January 2021 at the earliest. The third is the October 9, 2020 suspension of new jury selection in Ottawa for a period of at least 28 days. The fourth is Regional Senior Justice MacLeod’s confirmation on October 13, 2020 that Ottawa continues to have capacity for in-court matters with appropriate protections in place.

[34] Given these realities, there is good reason to doubt that this matter would be able to proceed by jury in March 2021 or even within a short time thereafter. Conversely, Ottawa continues to have capacity for in-court, non-jury matters.

[35] If the jury notice is not struck and a “wait and see” approach is taken, it is almost certain that the March 8, 2021 trial date would have to be adjourned, creating further delay. By next March, the plaintiff will have already waited more than two and a half years since the action was set down for trial. The defendant’s prima facie entitlement to a jury trial must yield to the overriding interests of justice that include the just resolution of a civil dispute in a timely manner. The defendant’s entitlement must yield to the current realities faced by the court in Ottawa. Striking the jury notice will permit a just and more efficient determination of the action, in a reasonably timely manner.

Disposition

[36] For these reasons, I am satisfied that justice to the parties will be better served by striking the jury notice. The plaintiff’s motion is granted. The defendant’s jury notice is struck, and the trial will proceed before a judge alone.

[37] The parties are to attend the next trial management court and obtain the first available dates for trial.

[38] As agreed by the parties, costs of this motion shall be reserved to the trial judge.

Justice R. Ryan Bell

Date: October 30, 2020

COURT FILE NO.: 16-69656

DATE: 2020/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Bharati Desai, Plaintiff

AND

Patrick P. Labelle, Defendant

BEFORE: Justice R. Ryan Bell

COUNSEL: David Cutler, for the Plaintiff

Michael Van Dusen, for the Defendant

ENDORSEMENT

Ryan Bell J.

Released: October 30, 2020

[^5]: Leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32. [^6]: Cited by Brown J.A. in Belton, at para. 27.