MacDougall et al. v. Sisley

Barrie Court File No.: CV-16-1103 Date: 2020-10-29 Ontario Superior Court of Justice

Between: Charles Alexander MacDougall, Kristine Catherine Brigden, Charles Graeme MacDougall, by his Litigation Guardian, Kristine Catherine Brigden and Jackson Robert MacDougall, by his Litigation Guardian, Kristine Catherine Brigden Plaintiffs

– and –

Hugh Sisley Defendant

Counsel: James L. Vigmond and Brian M. Cameron, for the Plaintiffs Frank G. Csathy and Michael Cremasco, for the Defendant

Heard: September 28 and October 23, 2020

Reasons for Decision

McKelvey J.:

Introduction

[1] On May 30, 2016, the plaintiff in this action, Charles MacDougall, was playing in a golf tournament at the Eagles Nest Golf Course. He was playing in a foursome in a tournament which was a "scramble" format whereby all players hit from a location of the best shot amongst the foursome until the golf ball has been shot into the cup.

[2] The plaintiff alleges that the defendant, Hugh Sisley, decided to take a second shot on one of the holes, despite the plaintiff's back facing towards him as he hit the ball. It is further alleged that the defendant hit his golf ball directly into the back of the plaintiff's head which in turn caused a traumatic brain injury.

[3] Both liability and damages are in issue in the action.

[4] The plaintiff has brought a motion to increase the amount claimed for general and special damages from 3 million dollars to 6 million dollars. The plaintiff also has brought a motion to strike the jury. As the action has been set down for trial the plaintiff requires leave to bring this motion.

[5] The defendant agrees that leave to bring the motion should be granted. The defendant also consents to the proposed amendment to the statement of claim. As a result, I order that the motion to amend the statement of claim is granted. As leave to bring the motion is not disputed, the one remaining issue is the plaintiff's request to strike the jury notice. This request is opposed by the defence.

Applicable Legislation

[6] Section 108 of the Courts of Justice Act, RSO 1990, c C.43, provides that a party in a civil action may require that the issues of fact be tried or the damages assessed by a jury. There are some exclusions to this general principle set out under s. 108 which do not apply to this action. Thus, the defendant was well within his rights to file a jury notice requiring this case to be tried by a jury. Section 108(3) provides that on motion, the court may order that a case be tried without a jury.

[7] Rule 47.02 of the Rules of Civil Procedure provides for motions to be made to strike out a jury notice, "on the ground that the action ought to be tried without a jury".

[8] A considerable volume of case law has developed as to when it is appropriate to strike a jury notice. In the present case, the focus by the plaintiff is 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 arise out of the COVID-19 pandemic.

[9] For the reasons which follow, I have concluded that the plaintiff's motion to strike the jury should be dismissed, but without prejudice to the right of the plaintiff to renew this motion as the court's ability to try civil jury cases in this region becomes clearer.

Chronology

[10] The following is a chronology of the main events which have occurred in this litigation:

• May 30, 2016 – This is the date when the plaintiff suffered injuries as a result of an incident at the golf course.
• August 3, 2016 – Statement of Claim was issued.
• May 25, 2017 – The plaintiffs set the action down for trial.
• May 3, 2018 – A separate Statement of Claim was issued for long-term disability benefits.
• February 26, 2019 – An Order was obtained for the trial together of both the within action and the long-term disability action.
• July 16, 2019 – A mediation was held.
• August 12, 2019 – The long-term disability action was set down for trial.
• October 29, 2019 – A pre-trial was held.
• January 30, 2020 – At trial scheduling court the trial in this action was scheduled for Barrie's Spring 2020 Trial Sittings.

[11] As of March 17, 2020, the Superior Court suspended in person court operations. As of that date, criminal and civil jury trials were suspended until September 2020. Only urgent criminal, family and civil matters continued to be heard. As a result, the Spring Sittings in the Central East Region did not proceed as scheduled.

[12] On September 17, 2020, the Regional Senior Judge of the Central East Region issued a protocol for 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 is uncertain at this time.

[13] The protocol further provides that, as of October 5, 2020, the Central East Region will maintain two running lists. The first list deals with civil trials. Cases that have been pre-tried and deemed ready for trial will be eligible to be placed on the running civil trial list. This would include all cases which were not reached in the November 2019 and May 2020 Civil Trial Sittings. Cases that are eligible may be put on to the civil trial running list in one of two ways, either on consent of the parties or by the order of a triage judge. The civil trial running list includes both jury and non-jury cases. Non-jury trials may be conducted virtually, via Zoom.

[14] At the hearing of this motion I advised counsel of additional information I have received from the Court administration. I have been advised that all other factors being equal, cases that were scheduled to be tried in the November 2019 and May 2020 trial lists will be given preference. A triage judge may also receive submissions from counsel with respect to other factors which could affect the priority to be given to a case on the running trial list.

[15] In the Central East Region, the Ontario Government has renovated three courtrooms which can be used for jury trials during the pandemic. The renovations in these courtrooms are designed to minimize the risk of COVID-19 transmission. There is one jury room in the Barrie Courthouse, one in the Newmarket Courthouse and one in the Oshawa Courthouse.

[16] Criminal jury trials are being given priority for the use of the three jury courtrooms. However, in the event that a criminal jury trial does not proceed for any reason, the courtroom will be made available for a civil jury trial which will be called in from the civil jury trial running list.

[17] When this motion was originally argued on September 28, 2020, the information available suggested that criminal trials would likely require the use of all jury courtrooms until the end of the year. Subsequently, however, it turned out that a lengthy criminal jury trial did not proceed making a courtroom in Newmarket available for a civil jury trial which was scheduled to commence on October 19, 2020. Unfortunately, due to a spike in COVID-19 cases in York Region, 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 and limiting the number of people who can be in any courtroom to 10. As a result, the civil jury action scheduled to start on October 19, 2020 in Newmarket which is part of York Region could not proceed. Jury trials can continue in both Oshawa and Barrie which are not part of York Region. In addition, subsequent to the original hearing on September 28, I was advised that effective the beginning of January, 2021, it is expected that there will be two additional jury courtrooms available in the Central East Region; one in Midland and one in Lindsay. The Barrie courtroom will not be used for criminal jury trials after the end of this year. Consideration is being given to having a courtroom in Barrie dedicated to trying civil jury cases in Central East Region at the beginning of January 2021 but no firm decision about that has yet been taken. I heard further submissions on these developments from counsel on October 23, 2020.

The Parties Positions

[18] The plaintiff in this case seeks to strike the jury notice. The plaintiff's position is that delay in the trial is causing serious anxiety to him. In support of his position the plaintiff has filed an affidavit from a clinical psychologist, Dr. Steve Stewart, who has assessed Mr. MacDougal on eleven occasions between February and August of 2020. At paragraph 9 of his Affidavit, Dr. Stewart comments as follows:

9. From a psychological perspective, having had this "end date" in sight allowed him to retain a sense of hope, control, and a future-focus; key enablers of physical and psychological recovery. Having this taken away in unexpected fashion, with no clear end point, is considered a significant source of stress for Mr. MacDougall and will very likely have a negative impact on his rehabilitation. It is likely to add to the cognitive and emotional load he experiences (as described above). This, in turn, detracts from his capacity to focus on his health or make the most of any treatment. Thus should this uncertainty continue, there is a real risk of regression, compounding his sense of powerlessness and risking further entrenchment of his disability.

[19] Earlier in his Affidavit, Dr. Stewart makes reference to a concern by Mr. MacDougall about his finances. Dr. Stewart notes that the plaintiff reported that his savings are invested in the markets and he is fearful of losing his money in the event of a sudden downturn or correction. It should be noted, however, that financial constraints are not relied upon in support of the plaintiff's position that an urgent trial is required. Although the plaintiff has not worked since the time of the accident, he has recently settled his LTD claim and received a substantial payment from this settlement.

[20] Dr. Stewart was not cross-examined on his Affidavit and I accept that the plaintiff is experiencing significant stress resulting from the delay in this trial which is in turn, having a negative impact on his rehabilitation. I therefore accept that the plaintiff has established a need for the trial in this action to take place in a timely manner.

[21] The plaintiff's position is that there can be no assurance of a timely trial if the case remains on the jury trial list. The plaintiff also relies on the fact that memories of relevant witnesses may fade over time and that at least one of the witnesses to the incident has refused to speak with the plaintiff's counsel.

[22] The plaintiff therefore argues that the court should grant this motion because:

(a) Justice to the parties will be better served by striking the jury notice;

(b) Striking the jury notice will promote timely access to justice and promote Charles' focus on rehabilitation and recovery;

(c) Striking the jury notice will preserve the reliability of key liability evidence.

[23] The position of the defendant is that the motion should be dismissed and that the court should take a wait and see approach. The defendant states at paragraph 15 of his factum:

In consultation with the bar, the Central East Bench is putting into place a protocol for the resumption of civil trials in Central East. This includes eligibility of matters to be placed on a running trial list if they have already been pre-tried and have been deemed ready for trial. Placement on the running list can be on consent or by Order of a Triage Court Judge. While the ability of the Court to conduct civil jury trials is uncertain at the present time, the protocol is expected to identify means by which civil jury matters could be conducted. For example, if the Court is in the position to conduct criminal jury trials and a criminal jury trial collapses due to a plea of guilty, a re-election or an adjournment , the Court could then entertain conducting a civil jury trial in a time allotted for the vacated criminal jury trial utilizing the panel called in for the criminal jury trial(s).

[24] The defendant further relies on the principle that the right to a trial by a jury in a civil case is an important substantive right which should not be lightly interfered with.

Analysis

[25] In criminal litigation accused persons have an absolute right to be tried by a jury when charged with certain specified offences. In civil cases, the right to a jury is not absolute. However, appellate courts have affirmed that the right to trial by jury in civil cases is a substantive right of great importance and that a party ought not to be deprived of that right except for cogent reasons (See King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528).

[26] The principles governing the striking of a jury notice and the appellate review of such a decision were canvassed in the Ontario Court of Appeal decision in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 OR (3d) 660, as summarized in the Court of Appeal decision in Kempf v. Nguyen, 2015 ONCA 114. At para. 43 of that decision the Court of Appeal notes that a party moving to strike the jury notice 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, that merit the discharge of the jury". The overriding test is stated to be, "whether the moving party has shown that justice to the parties will be better served by the discharge of the jury".

[27] In the Cowles decision, Associate Chief Justice O'Connor comments that, a "wait and see" approach may be the preferable disposition on a motion to strike the jury. This view is echoed by the Court of Appeal in the Kempf decision where they note that experience has shown that in many instances the anticipated complexities of a case or other concerns 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.

[28] In Ontario, there have been a number of decisions which have considered whether juries should be struck in light of the delays occasioned by the COVID-19 pandemic. The results on these motions have not been consistent. For example, in Belton v. Spencer, 2020 ONSC 5327, Justice Sheard struck a jury notice. In that case, the evidence before Justice Sheard indicated that trying the case with a jury would likely delay the trial by at least a year and possibly as much as eighteen months. In that case, the jury trial was originally scheduled for July 20, 2020, but could not proceed because of the COVID-19 pandemic. Justice Sheard rejected the "wait and see" approach by noting the difficulty with that position is that the trial judge would not be appointed until the Friday afternoon before the commencement of the long trial. Thus, by taking the "wait and see approach" the delay in scheduling of the trial that the plaintiff sought to avoid would already have occurred. For that reason she felt that the "wait and see" approach was unsuitable. It was also significant to note in that case that the incident giving rise to the action occurred on May 31, 2010. Thus, there was already a very lengthy delay which had occurred in getting the case to trial. Justice Sheard therefore concluded that justice to the parties would be better served if that matter was brought to trial sooner rather than later and she granted the plaintiff's motion to strike the jury. That decision is currently under appeal, but the appeal has not yet been argued.

[29] A similar approach was taken by Justice Beaudoin in two decisions, Coban v. Declare, 2020 ONSC 5580 and Louis v. Poitras, 2020 ONSC 5301. In the Louis decision, the incident giving rise to the claim occurred on May 9, 2013 and the trial was scheduled to commence on April 20, 2020. In the Louis decision, Justice Beaudoin found there was real and substantial prejudice by reason of the anticipated delay in the trial.

[30] A different approach was taken by Justice Roger in Higashi v. Chiarot, 2020 ONSC 5523. In that case, the evidence was that a four week virtual trial without a jury could commence on January 25, 2021, whereas the estimate for a four week civil jury trial was unknown. Justice Roger granted the motion to strike the jury, but subject to the condition that the parties could return before him at a later time if it became known when a jury trial might occur prior to the case being tried without a judge. As part of his Reasons, Justice Roger stated,

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.

[31] A third approach was taken by Justice Wilson in Jiang v. Toronto Transit Commission, 2020 ONSC 5727. In that case, the plaintiff brought a motion to strike the jury. One of the grounds was the allegation of an "undetermined delay". That case had been fixed for trial to commence at the jury sittings on October 5, 2020. The plaintiff's counsel had sought to schedule an urgent motion to strike the jury notice in the action. It was sent to Justice Wilson who convened a case conference. Justice Wilson declined to order the motion be heard on an urgent basis or prior to the trial. In doing so, she commented on the issue of delay as follows:

I am aware that in other jurisdictions that cannot at the present time offer civil jury trials, my colleagues have granted motions striking juries: see Higashi v. Chiarot, 2020 ONSC 5523, Louis v. Poitras, 2020 ONSC 5301 and Belton v. Spencer, 2020 ONSC 5327. In all these decisions, the prejudice to the Plaintiff as a result of an undetermined delay had to be weighed against the right of the Defendant to have the action tried by a jury. In the case at hand, I do not have to consider these issues as there is no prejudice to the Plaintiff and no access to justice issue to be balanced since civil jury trials are available in Toronto.

[32] The decisions of my colleagues on the Superior Court of Justice are not binding on me. Nevertheless, as noted by Justice Strathy (as he then was) in R. v. Scarlett, 2013 ONSC 562, while those decisions are not binding they should be followed in the absence of cogent reasons to depart from them. In other words, a judgment should be followed unless the subsequent judge is satisfied that the decision was "plainly wrong". See also the decision of Justice Boswell in R. v. Sinnappillai, 2020 ONSC 1989, at para. 27.

[33] I do not consider the above noted decisions to be inconsistent. Instead they reflect the fact that circumstances matter. In the Belton case, the cause of action arose in May of 2010 and the trial had already been adjourned on two occasions. The evidence accepted by the court was that a jury trial would be delayed by somewhere between 12 to 18 months.

[34] In the Higashi case, the action was commenced in 2014. Justice Roger set out the information he received about when civil jury trials would resume as follows:

At some point, we will resume civil jury trials, but he did say that we don't know when that will be.

[35] The defendant in the Belton case appealed the court's decision to strike the jury to the Ontario Court of Appeal. The defendant in that case moved under Rule 63.02(1)(b) of the Rules of Civil Procedure for an Order staying the Court's Order that struck out the jury notices. In dismissing the motion, Justice Brown suggested that the Order appealed from was likely interlocutory and therefore the appeal should go to Divisional Court. However, he also went on to comment on the recent decisions involving motions to strike out civil jury notices. He rejected the suggestion that these were "conflicting decisions" among lower court judges as to the correct approach to be taken. In his decision Justice Brown states,

Third, 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. 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.

[36] The plaintiff, in its argument, refers to the notion that "justice delayed is justice denied" and that this principle "reaches back to the mists of time". More recently the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, commented that, "a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system."

[37] 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.

[38] It is clear that the COVID-19 pandemic has brought new and difficult challenges in all areas of the court's work. The court has been very cautious in protecting the health of litigants and staff who are involved in the justice system. That is not to say there can be an absolute guarantee of safety or that proceedings will not be affected by the pandemic. The suspension of starting new jury trials in York Region is the best evidence of that. Currently, there is a rise in the number of COVID-19 cases being reported in Ontario and concerns about a "second wave" of the pandemic affecting the health of Ontarians.

[39] Having said that, I have concluded that a wait and see approach should be adopted in the present case. We know that there are currently three jury courtrooms available in our Region (although the one in Newmarket cannot currently accommodate any new jury cases) and we also know that two additional jury courtrooms are planned for the beginning of the new year. It also seems likely that a dedicated civil jury courtroom in Barrie will be available in the new year. If for any reason a scheduled criminal jury trial does not proceed, there will be an opportunity for a civil jury trial to be called.

[40] It is significant in my view that Central East has set up a protocol to develop a rolling list for both jury and non-jury civil trials and that provision has been made for triaging civil cases and giving priority to those cases which need to be tried earlier than others.

[41] The civil trial protocol was only finalized and issued on September 17, 2020 and only came into effect on October 5, 2020. It is not clear at this point whether the court will be successful in prioritizing and trying urgent civil jury cases but I have concluded a wait and see approach is justified to see whether urgent civil jury trials can be accommodated. In my view, we should allow the protocol to evolve to see whether it is possible to provide resources to civil cases (including civil jury cases) consistent with a rational and reasonable allocation of scarce resources.

[42] The plaintiff also argues that it is unreasonable to expect jurors to fulfill their responsibilities and to pay attention to the evidence, "when their minds will be consumed with matters of life or death" and that, "it will do nothing to advance justice as between the parties to force people into a situation where they fear for their life or the life of a loved one." I disagree. There is no evidence before me that this has been an issue in criminal jury trials which have been held following the re-opening of our courts. Further, I believe it is reasonable to believe that concerns like these which may be expressed by potential jurors will be dealt with in an empathetic and sensible way by the trial judge during the jury selection process.

[43] In the end, this Court is required to balance the potential harm to the plaintiff if his trial is delayed against the substantive right of the defence to a trial by jury. While the plaintiff asserts that the anticipated delay and associated harm is going to be substantial, I have concluded that it is premature to draw such a conclusion. I believe that by the early months of 2021, we will have a better idea as to how the civil trial protocol is working and whether courts in the Central East Region can accommodate urgent civil jury trials as well as whether it is likely that the Spring 2021 sittings will proceed. If it appears that there will be an inordinate delay in trying urgent civil jury cases, then it would be appropriate to reconsider whether that delay merits striking a jury notice in this and other cases. I therefore decline to strike the jury notice at this point, but this decision is without prejudice to the right of the plaintiff to renew the motion to dismiss the jury notice at a later time.

Conclusion

[44] For the above reasons, the plaintiff's motion is dismissed. I would urge the parties to agree on the costs of the motion. However, if they are not able to then counsel should contact the Trial Coordinator within thirty days to schedule a further appearance before me. Concise briefs should be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

Justice M. McKelvey

Released: October 29, 2020