REASONS FOR DECISION

MCKELVEY J.:

Introduction

[1] This action arises out of a motor vehicle accident which occurred on March 23, 2016. Both the plaintiff and the defendants served jury notices in the action. The action is now ready to proceed to trial. The plaintiff has brought a motion to strike the jury in this action. In MacDougall v. Sisley, 2020 ONSC 6632, I dealt with a very similar motion to strike a jury notice. In that decision I outlined the applicable legal principles together with the plans to establish a rolling list for civil jury and non-jury cases in the Central East Region. My reasons in this case will therefore be less detailed. In the MacDougall decision I dismissed the plaintiff’s motion to strike the jury and likewise in this case I have concluded that the plaintiff’s motion to strike the jury should be dismissed.

Factual Background

[2] The accident which is the subject matter of this action is a motor vehicle accident which occurred on March 23, 2016. This was a rear-end collision. The main issue appears to be causation. The plaintiff alleges that he suffered permanent and serious injuries to his neck and spine. The affidavit in support of the motion indicates that the plaintiff has not returned to work since the accident. He previously worked as a heavy equipment mechanic and earned $48,460 per annum. He has not worked since the accident and currently receives $2,500 per month in disability benefits as compared to the $4,000 per month he previously earned.

[3] The plaintiff asserts that he has been obliged to take out a litigation loan which is currently valued at $58,340.79 and which is increasing over time.

[4] The main issue in the action appears to be causation. Prior to the motor vehicle accident the plaintiff had suffered injuries to his back in unrelated incidents.

[5] The following is a summary of the chronology of significant events in the litigation:

• February 15, 2018 – Statement of Claim issued.

• May 11, 2018 – Statement of Defence delivered.

• January 31, 2019 – Discoveries completed.

• March 26, 2019 – Trial Record filed.

• July 23, 2020 – Mediation.

• August 5, 2020 – Pre-trial.

• September 4, 2020 – Date of Notice of Motion to Strike the Jury.

The Parties Positions

[6] The plaintiff’s position is that justice will be better served by the discharge of the jury. The plaintiff argues that civil jury trials will remain unavailable for the foreseeable future and there is urgency because of the plaintiff’s financial circumstances in having this case tried at an early date.

[7] The plaintiff also argues that even if a jury could be selected it would likely be comprised of young individuals with no underlying health or economic concerns and where the jurors have no childcare responsibilities. The plaintiff states that this would no longer constitute a cross-section of the community. The plaintiff states,

The profound skew that would arise from so narrow a selection would equally run counter to the rationales underlying the existence of the jury. The jury would no longer be a “representative cross-section of society”.

[8] The plaintiff also questions how the trial would be carried out if the jurors and/or witnesses were wearing masks and lawyers would therefore be deprived of seeing the jurors’ reactions to evidence and arguments. The plaintiff also questioned what would happen if a juror or other participant developed symptoms of COVID-19 during the trial. The plaintiff argues that all of these factors strongly support striking the jury in this case.

[9] The defence agrees that there is no basis to deny leave to the plaintiff to bring this motion. However, the defence maintains that this motion should be dismissed and the case should remain on the jury list. The defence points to the established caselaw which states that the right to a jury is an important substantive right which should not be lightly interfered with. The defence submits that the court should take a “wait and see” approach before agreeing to strike the jury.

Analysis

[10] As noted in the MacDougall decision, there are three recent cases where jury notices have been struck because of delays caused by the COVID-19 pandemic. These include Belton v. Spencer, 2020 ONSC 5327, Louis v. Poitras, 2020 ONSC 5301 and Coban v. Declare, 2020 ONSC 5580.

[11] In addition, Justice Roger struck a jury in Higashi v. Chiarot, 2020 ONSC 5523. In that case, however, Justice Roger in his decision provided that if it turned out that a jury trial would not be delayed as much as he feared, he would allow the parties to return to the court to review the matter again if the interests of justice might then balance differently.

[12] An opposite conclusion was released by Justice Wilson in Jiang v. Toronto Transit Commission, 2020 ONSC 5727. In that case, Justice Wilson dealt with a requisition for an urgent motion to strike the jury notice in the action. In dismissing this request Justice Wilson stated,

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.

[13] 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.

[14] In the Higashi case, the action was commenced in 2014. Justice Roger set out the plans for jury trials as follows,

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

[15] 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 about 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.

[16] I have concluded that it would not be appropriate to strike the jury in this case on the basis of delay. In order to be placed on a trial list in the Central East Region the case must first be pre-tried. There are two regular trial sittings in the Central East Region. These occur in May and November. As this case was not pre-tried until August 2020, the earliest date which could have been set for trial would have been the November 2020 Sittings which have now been cancelled.

[17] The plaintiff has pointed to the importance of timely justice. They refer to the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, where the court’s comment that, “a culture shift is required in order to create an environment providing timely and affordable access to the civil justice system.”

[18] I agree that timely justice is an important objective for our court system. However, we do not live in a perfect world. The unfortunate reality is that the COVID-19 pandemic has hit all aspects of our society very hard. This includes the justice system. In March, 2020, the Superior Court of Justice suspended all regular Superior Court operations indefinitely. On May 13, 2020, criminal and civil jury trials were suspended until September 2020 at the earliest. The Civil Trial Sittings for both May and November, 2020, were cancelled. The status of the May 2021 Civil Trial Sittings is uncertain at this time.

[19] It is apparent that as a result of the pandemic a large number of civil, family and criminal trials, both jury and non-jury have been delayed. These delays were necessitated by compelling public health concerns.

[20] Courts are in the process at this point of re-opening and dealing with significant backlogs in all areas. In doing so, Court’s have had to set priorities so that scarce resources can be deployed in a way that appropriately reflects the multiple demands on the judicial system. In doing so priorities must be established. This in turn means that family and criminal cases may demand and receive more resources than civil cases. The result will likely mean continuing delays in civil trials generally.

[21] The Central East Region protocol as summarized in the MacDougall decision is an attempt by the Regional Senior Justice to restart civil trials and to create a running civil trial list which encompasses both civil jury and non-jury trials. It is apparent that non-jury trials may be easier to schedule than jury trials because non-jury trials do not require a physical courtroom and many can be conducted by Zoom. On the jury side, criminal jury cases are being given priority. Nevertheless it seems likely that civil jury cases can be accommodated when a criminal jury case does not proceed or when a dedicated civil trial courtroom is setup in Barrie.

[22] In the present case the plaintiff’s solicitor has not yet placed this action on the running list for civil cases. I accept the explanation of plaintiff’s counsel that this was as a result of confusion about how the list was to be managed. I accept the assurance of both plaintiff and defence counsel that the case will be put on the running list shortly.

[23] The protocol developed for Central East Region is an attempt by the Regional Senior Justice to provide resources to both civil jury and non-jury cases consistent with the priorities of the court and taking into account individual circumstances for particular cases. The protocol commenced operation on October 5, 2020. The protocol may or may not be successful in getting the most urgent cases tried in the most timely way possible. If it is not successful in this regard, changes may need to be made, or, if there are urgent jury cases which are languishing on the jury list, it may be appropriate on motions like this to strike jury notices. In my view, however, we should allow the protocol to evolve to see whether it is possible to provide adequate resources to civil jury cases consistent with a rational and reasonable allocation. This supports my conclusion that a “wait and see approach” is the most appropriate in the circumstances.

[24] I believe that by the early months of 2021 we will have a better idea of whether the civil trial protocol is working and whether courts have been able to accommodate the most urgent civil jury trials as well as whether it seems likely that the May 2021 Sittings will proceed with jury trials. If it appears that there will be an inordinate delay in trying civil jury cases, then it would be appropriate to reconsider whether that delay merits striking a jury notice in this or other cases.

[25] I am not persuaded that the jury should be struck in this case based on the concern that juries will not reflect a cross-section of the community. We do know that criminal jury trials have restarted and appear to be successful in adjudicating criminal cases. There has been no evidence put before me to support the allegation that jury composition has deteriorated to the point where they are no longer representative of the community or that they are otherwise unfit to try serious cases. Our experience in the criminal area would suggest otherwise.

[26] In the Ontario Court of Appeal decision in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189-205, the court comments that a trial judge’s “doubts as to the efficiency and efficacy of the jury system are not judicial grounds for dispensing with a jury nor is his personal high regard for the litigant's right to a jury sufficient to reject a motion to discharge when the grounds in support of the motion are substantial.”

Conclusion

[27] For the above reasons, I have concluded that the plaintiff’s motion should be dismissed. The earliest that this case could have been tried in the Central East Region would have been at the November 2020 sittings which have now been cancelled. In the context of the pandemic which has affected all trials a wait and see approach is appropriate given that the resumption of both civil jury and non-jury trials is contemplated by the Central East Protocol which only came into effect on October 5, 2020. As with the MacDougall case, this decision is without prejudice to the right of the plaintiff to renew the motion to dismiss the jury at a later time.

[28] 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 to schedule a further appearance before me within 30 days. 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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Piette

Plaintiff

– and –

Eric Michael Haskins

Defendant

REASONS FOR DECISION

Justice M. McKelvey

Released: October 29, 2020

Piette v. Haskins, 2020 ONSC 6633

Case Summary

REASONS FOR DECISION

MCKELVEY J.:

Introduction

Factual Background

The Parties Positions

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues