COURT FILE NO.: CV-16-551371
DATE: 20201102
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTENA SAADI, Plaintiff
AND:
MANUEL SILVA AND STEVEN DA SILVA, Defendants
BEFORE: Kimmel J.
COUNSEL: Linda Wolanski and Alexandra Roman, for the Plaintiff
Alan Rachlin and Laleh Hedayati, for the Defendants
HEARD: October 26, 2020
ENDORSEMENT – PLAINTIFF’S Motion TO STRIKE JURY NOTICE
Procedural Background
[1] This case was called for trial to be heard during the October 2020 civil jury sittings in Toronto. A jury was picked on Monday, October 5, 2020 at the Metropolitan Toronto Convention Centre. Two motions concerning the expert evidence to be called at the trial were heard at the courthouse at 330 University Avenue in Toronto on October 6, 2020, in the absence of the jury.
[2] The trial was set to commence in the presence of the selected jury on Wednesday, October 14, 2020, when the courtroom, configured to be compliant with COVID-19 safety requirements and with sufficient capacity for this trial, was scheduled to become available following the anticipated completion of another ongoing civil jury trial.[^1]
[3] On Friday, October 9, 2020, Premier Ford announced that Toronto would be returning to modified stage two restrictions due to increases in COVID-19 cases. On that same day, the Honourable Chief Justice Morawetz of the Ontario Superior Court of Justice issued a Notice to the Profession and Public Regarding In-Person Operations in Toronto, Brampton and Ottawa. Among other things, the October 9, 2020 Notice to the Profession suspended jury selection for 28 days and only allowed (jury and non-jury) in-person trials in progress to continue in the discretion of the trial judge. Since no evidence had been called and no opening statements had been made, the trial of this action was not considered to be “in progress” and the jury was discharged.
The Jury Notice and Motion to Strike
[4] The plaintiff moves to strike the defendants’ jury notice under Rule 47.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiff contends that the action ought to be tried without a jury because of the impact that the COVID-19 pandemic has had on public health and the justice system in Ontario, and specifically the impact that the October 9, 2020 Notice to the Profession had on the trial of this action, which prevented the trial from commencing after the jury had been picked and all parties were ready to proceed.
[5] The plaintiff commenced this action, arising from an accident that occurred on December 18, 2014, by statement of claim issued on April 21, 2016. The plaintiff was a pedestrian. Her claims are for injuries she says she suffered as a result of being struck by a car that was turning left while she was crossing the street. The car was being driven by the defendant Manuel Silva and was owned by his son, the defendant Steven Dias da Silva.
[6] The defendants served a Rule 47.01 jury notice dated December 9, 2016 when they delivered their statement of defence. The issues of liability (contributory negligence), causation and damages all remain in dispute.
[7] The trial was scheduled for fifteen days by endorsement made in trial scheduling court on February 6, 2019 and set to commence on October 5, 2020 during the October 2020 civil jury sittings in Toronto.
[8] The defendants object to their jury notice being struck and request that the trial be adjourned to the next scheduled civil jury trial sittings in Toronto in June 2021.
Summary of Outcome
[9] I am not satisfied that the justice to the parties will be better served at this time by striking the defendants’ jury notice. The plaintiff’s motion to strike the jury notice is dismissed. The trial of this action is adjourned to the June 2021 civil jury sittings in Toronto and it will be placed on a priority list for those sittings.
[10] The defendants suggested the following conditions or restrictions on any order dismissing the plaintiff’s motion to alleviate some of the concerns about the delay and the uncertainty of whether the trial of this action will actually be able to proceed with a jury in June 2021. Plaintiff’s counsel were not opposed to these conditions (refined during oral argument), in the alternative to the primary relief sought - for the jury notice to be struck.
[11] I accept and adopt these proposed conditions as terms of my order dismissing the plaintiff’s motion:
a. The dismissal of the plaintiff’s motion to strike the jury notice now is without prejudice to any renewed motion to strike the jury notice that the plaintiff may decide to bring if the trial of this action cannot proceed with a jury in June 2021; and
b. Neither party will deliver any further expert reports for the purposes of a trial in June 2021 without the consent of the other side or leave of the court, to be sought in a timely manner before June 2021 so that the trial can proceed if called, allowing reasonable time for a response. A request for consent or leave would only be made in the event of a material change in the plaintiff’s physical or psychological health or her employability.
Rule 48.04(1) – Leave to Bring this Motion
[12] The plaintiff requires leave under Rule 48.04(1) to bring this motion. The plaintiff argues that the October 9, 2020 Notice to the Profession and resulting discharge of the jury after the case was called for trial was a substantial or unexpected change in circumstances and that it is just in the circumstances for the plaintiff to be granted leave to bring this motion. See BNL Entertainment Inc. v. Rickets, 2015 ONSC 1737, at paras. 12 and 14. I agree. It is necessary and in the interests of justice that leave be granted to the plaintiff to bring this motion in the circumstances of this case. See also Kaur v. Blue Cross, 2018 ONSC 3303, at paras. 21 and 23.
[13] The defendants do not oppose the plaintiff’s request for leave to bring this motion given the circumstances of the COVID-19 pandemic and the October 9, 2020 Notice to the Profession.
[14] Leave is granted to the plaintiff to bring this motion.
Should the Jury Notice be Struck?
The Legal Analytical Framework
[15] The parties are in agreement that the court has the discretion under Rule 47.02(2) and s. 108 of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“CJA”) to order that the issues of liability (including contributory negligence and causation) and damages to be decided be tried without a jury. See Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 43). The defendants concede that their right to a jury trial is not absolute.
[16] The test to be applied by the court on this Rule 47.02(2) motion to strike the jury notice is well established and not disputed by the parties. In the recent decision of Rolley v. MacDonell, 2018 ONSC 508, aff’d 2020 ONCA 642, the court affirmed and applied the principles that are to guide the court’s exercise of its discretion established in the Court of Appeal’s seminal decision in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37, namely:
a. consideration of the legal and/or factual issues to be resolved, the evidence at trial and the conduct of the trial; and
b. overriding consideration of whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.
[17] It is clear from the cases that the court’s discretion must not be exercised arbitrarily or on improper principles. A jury trial is an important substantive and statutory right that should not be interfered with lightly. See Kempf, at para. 43, and Cowles, at paras. 36-40.
[18] Courts have often adopted a “wait and see” approach when it comes to motions to strike a jury. This is thought to better allow courts to protect the substantive right of the party who wants a jury trial, and only to dismiss the jury if the circumstances at the time warrant it, and not based on anticipated circumstances that may not materialize (see Cowles and Kempf).
[19] The plaintiff relies on the recent observation of the Court of Appeal in Girao v. Cunningham, 2020 ONCA 260, at para. 171 that: “While… 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.”
[20] Roberts J. echoed the same sentiment in Higashi v. Chiarot, 2020 ONSC 5523, (at p. 9, line 7):
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.
[21] In Macleod v. Canadian Road Management Company, 2018 ONSC 2186, Myers J. emphasized (at para. 31) the vital component of proportionality “enshrined in Rule 1.04 (1.1) … as an omnipresent consideration in the assessment and balancing of all procedural issues.” Quite independent of the COVID-19 pandemic’s effects, he observed (at para. 32) that the systemic delays in getting a date for a civil jury trial may impair the parties’ access to civil justice, and if they do, “the right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is ‘just’ as we currently comprehend that term.”
The Plaintiff’s Onus
[22] The plaintiff has the onus of demonstrating that justice to the parties will be better served if this action is tried by a judge alone before June 2021, as opposed to adjourning it to the June 2021 civil jury sittings in Toronto presently scheduled but cannot be guaranteed to proceed.
[23] The plaintiff relies upon cases that have been decided since the COVID-19 pandemic in which jury notices were struck because of concerns about uncertainty and delay.
[24] The animating factors that were considered in the recent cases striking jury notices relied upon by the plaintiff are briefly summarized as follows:
Vacchiano v. Chen, 2020 BCSC 1035 [Reasons: July 10, 2020]
- 10-day trial scheduled to start 10 days after motion was argued
- Personal injury claim arising out of a motor vehicle accident that occurred in December 2015
- The next available dates for a 10-day jury trial were not expected to be until January of 2022
- This delay raised the following concerns:
- Risk of decaying memory of witnesses where both liability and damages are at issue
- Potential for significant costs to be incurred by the plaintiff and concerns about the plaintiff’s psychological and financial condition
- Additional costs for updated expert examinations and reports, and additional examinations for discovery
- The trial may be conducted under new rules for experts, which could mean that the plaintiff would not be able to recover costs of some of the experts that plaintiff presently relies on
Higashi v. Chiarot, 2020 ONSC 5523 [Ottawa, Oral reasons: September 1, 2020]
- Personal injury claim in an action commenced in 2014
- The trial was scheduled to commence March 23, 2020 and had already been delayed by almost six months due to the COVID-19 pandemic
- It was considered to be probable that civil jury trials will be delayed for some time (given the delays being experienced in Ottawa with the criminal jury trials and resulting backlogs)
- This delay introduced the following further concerns:
- The plaintiff will statutorily lose 30% of any pre-trial loss of income
- The expert reports were mostly dated 2019 and 2020 and the cost to update them was expected to increase as the delay got longer
- The state of uncertainty resulting from COVID-19 was very much unknown. There was no indication of when a 4-week civil trial with a jury could proceed in Ottawa. Considering the level of uncertainty about the availability of civil jury trials in Ottawa and adjournment to an unknown future date would not serve the interests of justice or the interests of the parties
- If civil jury trials become available before the judge alone trial commences, the parties could appear before Justice Rogers to determine whether the interests of justice then balanced differently. The possibility of a timely jury trial was not foreclosed
Belton v. Spencer, 2020 ONSC 5327 [Belton], aff’d 2020 ONCA 623 [Belton ONCA] [Central South Region (Hamilton), Trial decision heard: September 4, 2020; Appeal stay decision heard on September 29, 2020, released October 1, 2020. Motion for stay dismissed]
- 4-week trial
- Personal injury claim arising from an accident that occurred in May 2010
- Trial date had been previously adjourned four times
- It was not known when civil jury trials would resume in Hamilton
- The anticipated delay to trial was estimated to be at least 12-18 months
- Delay of the trial for more than one year in the circumstances of this case was found to be unconscionable
- Overall delay raised concerns about the fading memories of witnesses and the cost of having to update expert reports
- No evidence of specific prejudice to the defendant of a judge alone as opposed to jury trial was before the court
[25] At the time this motion was heard, there were no examples of cases where the court dismissed a motion to strike the jury notice in a situation such as this where jury trials were currently unavailable.[^2] The one identified case where such a motion was dismissed in Toronto was decided at a time when jury trials were being offered in Toronto. See Jiang v. TTC, 2020 ONSC 5727.
[26] In Jiang, Wilson J. acknowledged (at paras. 6 and 7) the need for the court to be “flexible and adaptable to accommodate the needs of the parties and to ensure that cases proceed in a fair and equitable fashion”, noting that we are fortunate in Toronto to have an off-site premise for jury selection and retrofitted courtrooms that allow for social distancing and have been approved by the public health authorities, as well as video-conferencing and e-filing protocols to reduce the number of people who need to be in the court house at any given time. The unavailability of these features in the other jurisdictions, resulting in undetermined delay for the jury trials at issue, was considered by Wilson J. to be a significant point of distinction.
[27] The plaintiff argues that the October 9, 2020 Notice to the Profession renders uncertain any new trial date with a jury and that the uncertainty and ensuing delay is the practical reality to which the defendants’ right to a jury trial must yield.
[28] The plaintiff claims that the delay (to at least June 2021 and possibly longer) is prejudicial to her for economic reasons. She contrasts that with the likelihood that a trial with a judge alone would be tried sooner and completed more quickly.
[29] The plaintiff also claims that the uncertainty of proceeding with a jury trial in these unprecedented times during a public health pandemic is prejudicial to her. The Notice to the Profession not only suspends civil jury trials in Toronto in the short term, but demonstrates first hand the disruption and uncertainty created by the COVID-19 pandemic for a case in Toronto that was not only ready for trial but had actually been called for trial and then had to be called off because of public health concerns. She contends that at a time when the pandemic is escalating and there is no certainty of when it will abate, or of when a vaccine will be widely available or of when jury trials will be able to resume, a jury trial generally carries a greater risk of further delay or interruption and the potential for a mistrial if jurors become reluctant to serve and/or unexpectedly are required to quarantine.
[30] The plaintiff argues that the interests of the parties are better served by the certainty and efficiency of a fixed trial date with a judge alone that can be conducted entirely, or almost entirely, virtually if need be.
[31] The defendants argue that the plaintiff’s onus goes beyond simply:
a. the delay and uncertainty created by the COVID-19 pandemic; and
b. the fact that a jury trial will often be more expensive and longer than a trial before a judge alone,
otherwise all jury notices in Toronto would have to be struck. The overriding consideration is the justice to the parties in the circumstances of this case, which requires the plaintiff to demonstrate some specific prejudice. I agree that the analysis must be case and circumstance specific.
The Plaintiff’s Assertions of Specific Prejudice and the Defendants’ Challenges to those Assertions
[32] The plaintiff alleges financial prejudice attributed to the delay of the trial. In support of this, the plaintiff relies on the affidavit evidence of her senior trial counsel, some of which was provided on information and belief from the plaintiff, and some of which was not initially particularized, to support her arguments that the eight month or more delay, if the trial is adjourned to the next jury sittings, will be costly and therefore prejudicial to the plaintiff.
[33] The defendants object to this evidence and ask the court to strike or disregard it, either because it is not compliant with the “best evidence” rule and was provided after cross-examination purportedly in response to an undertaking that was not requested, or because it is inadmissible evidence of counsel’s opinions and beliefs on the ultimate issue that the court must decide. The evidence objected to is contained in two affidavits sworn by Ms. Wolanski, the first on October 15, 2020 and the second on October 23, 2020.
[34] I will deal with the objections to the plaintiff’s evidence sequentially.
a. The evidence that is objected to because it is based on information and belief (e.g. hearsay evidence, not the “best evidence”) contained in a solicitor’s affidavit may not carry much weight, but it is permissible on a motion under Rule 39.01(4). This is distinguished from evidence in affidavits for use on applications which, by virtue of Rule 39.01(5) is not prima facie permitted to be tendered based on information and belief with respect to contentious facts. In the exercise of my discretion, I am not going to strike the portion of paragraph 13 of Ms. Wolanski’s October 15, 2020 affidavit regarding Ms. Saadi’s desire to get on with her life and put this behind her simply because it is based on information and belief.
b. Nor am I going to strike the balance of paragraph 13 and paragraph 14 dealing with the general financial prejudice to the plaintiff from the statutory reduction of past loss of income claimed, the duplication of costs to re-prepare experts, and the possibility of added expenses to update expert reports and medical records. However, the lack of any particulars of the amounts of these financial impacts and the acknowledgement on cross-examination that the need for updated expert reports was only speculative, renders these general statements about “significant” financial prejudice that the plaintiff will suffer if the trial is adjourned to be of little weight in the ultimate analysis.
c. The defendants’ objection to the supplementary affidavit of Ms. Wolanski that attaches correspondence and particulars of some of the potential expenses referred to in her original affidavit is a valid objection that I will give effect to. Having reviewed the transcript of the cross-examination, I agree with Mr. Rachlin that this information was not provided in response to a request on cross-examination.[^3] If the plaintiff had considered it to be important for the court to have the details of the expenses alluded to in Ms. Wolanski’s first affidavit (some of which were obtained from the experts after Ms. Wolanski’s first affidavit was sworn, but without any explanation as to why they could not have been obtained before the affidavit was sworn), they ought to have been provided before she was cross-examined, not afterwards. The supplementary affidavit of Ms. Wolanski sworn October 23, 2020 is therefore struck.
d. The defendants’ objection to evidence of opinions or beliefs or conclusions of Ms. Wolanski contained in her first affidavit is also a valid objection that I will give effect to. This applies to statements made in the last two sentences of paragraph 14 that the plaintiff will be at a financial disadvantage to an institutional defendant and that the delayed jury trial will be “unaffordable” for the plaintiff, and to the statements in the last sentence of paragraph 26, paragraph 27 and the last sentence of paragraph 28 containing Ms. Wolanski’s opinions about how the interests of justice can be best served. These statements are all struck as inadmissible opinion evidence. Opinion evidence should only be provided by a qualified expert. Rule 39.01(7) makes this clear, as do the other rules and jurisprudence concerning opinion evidence generally. See also Ismail v. Fleming, 2018 ONSC 6780, at paras. 19 and 23. Furthermore, the opinions proffered by Ms. Wolanski in these paragraphs for the most part are conclusions of fact or mixed fact and law that should be determined, if relevant, by the court based on Ontario law, about which the court does not require the assistance of an expert, even if she is an experienced counsel.
[35] My evidentiary rulings do not leave the plaintiff without any evidentiary foundation for her motion. The plaintiff is concerned about the cost of delay in terms of additional legal and expert fees if the case has to be prepared again for trial in eight or more months, which I accept will inevitably require some duplication of the professional time the farther away the trial is pushed out. Although the specific amounts of time spent and fees incurred for trial preparation by the experts and lawyers have been ruled to be inadmissible and are not properly in evidence before the court, common sense and experience lead to the obvious inference that there will be some unrecoverable costs thrown away by both sides if the trial is delayed for eight or more months. The plaintiff points out that this is consistent with how the court approached this issue in the Higashi case.
[36] The defendants point to their offer on October 3, 2020 to traverse the trial to the June 2021 jury sittings so as to avoid the uncertainty of proceeding in the fall (when the pandemic appeared to be worsening) to reduce the possibility of the wasted time and expense of preparing and starting, but not being able to finish, the trial. They say that they should not now be faced with an argument of prejudice for duplication of the plaintiff’s preparation costs incurred when at least some of them could have been avoided if their proposal had been accepted.
[37] The plaintiff says she may have to obtain updated expert reports and medical reports and will incur costs to re-prepare witnesses. This is only speculative right now. In any event, concern about having to update expert reports is alleviated by the defendants’ agreement that there be no updated reports, unless a need for them arises due to a material change in the mental or physical health of the plaintiff or in her employability. The mere passage of time between now and June 2021 will thus not put the financial burden of having to update expert reports on the plaintiff.
[38] The plaintiff is also concerned about the financial impact of a delayed trial on her claim for pre-trial loss of income which, by statute (under s. 267.5 of the Insurance Act, R.S.O. 1990 c. I.8) is 30% lower than any income that is allocated as lost future income, post-trial. This is an inherent cost of any delay of a trial that involves a claim for lost income. This was a concern for the plaintiff in Higashi (at pg. 11). The defendants have calculated this cost for the plaintiff in this case to be approximately $3,801.60 from October 2020 to June 2021. The plaintiff did not proffer any different calculation but notes that if the trial does not proceed in June 2021 then that amount will continue to increase.
[39] The plaintiff postulates other intangible costs, such as the fading memories of the plaintiff and other witnesses to the accident who are expected to testify because of the assertion of contributory negligence, given that the accident dates back almost five years already. The defendants argue that there is no evidence before the court of concerns about fading memories due to age or other reasons. The defendants further argue that this is not a compelling factor in the circumstances of this case (as it was in the case of Vacchiano) because in this case the plaintiff was a pedestrian and thus the defendants have the onus to disprove liability. The defendants contend that, to the extent that the fading memories of witnesses to the accident are a consideration at all on the liability question, the delay would be more prejudicial to the defendants than to the plaintiffs.
The Prejudice to the Defendants if Deprived of their Right to a Trial by Jury and the Plaintiff’s Challenges
[40] The defendants tied their litigation strategy to the exercise of their right early on in this case to have it tried by a jury. They explain that because chronic pain was a condition that was explicitly pleaded in the statement of claim, they elected for a trial by jury early on.
[41] The plaintiff raised at the outset of the hearing of this motion an objection to the paragraphs in the defendants’ affidavit that are proffered as support for the litigation strategy prejudice, arguing that they are inadmissible hearsay (adopting a position similar to that adopted by the defendants as part of their objection to the plaintiff’s evidence). The impugned paragraphs (18 and 19 of the affidavit of Laleh Hedayati sworn October 29, 2020) only contain one statement made on information and belief from Mr. Rachlin to the effect that juries assess chronic pain differently than judges. The rest of the statements in these paragraphs about the litigation strategy adopted and followed by the defendants is not based on information and belief.
[42] For the same reasons as I indicated in my earlier rulings regarding this “best evidence” objection to the plaintiff’s lawyer’s first affidavit, I do not find the evidence on information and belief to be inadmissible in this case. Further, the cases cited by the plaintiff on the “best evidence” rule and concerns about shielding the person with direct knowledge (in this case, the senior litigation lawyer for the defendants) are potentially outdated and, in any event, not particularly instructive in this case (see York Condominium Corporation Corp. No. 335 v. Cadillac Fairview Corp. (1983), 1983 CanLII 1734 (ON SC), 42 O.R. (2d) 219, (S.C.), at p. 222, and 539618 Ontario Inc. v. Olympic Foods (Thunder Bay) Ltd., 1987 CarswellOnt 189 (Registrar in Bankruptcy), at para. 55. The plaintiff did not ask to cross-examine either the affiant or to examine senior counsel pursuant to Rule 39.03 to challenge these statements about the litigation strategy.
[43] The plaintiff argues that the premise of this litigation strategy is faulty because a judge is equally capable of making findings of credibility; moreover, the evidentiary foundation and necessary findings of fact are the same whether the case is tried by a judge alone or by a jury. The defendants point out that the statement in the Hedayati affidavit about the difference in approach taken by judges and juries to the assessment of chronic pain is supported by the Ismail case in which Justice Leitch recognized (at paras. 43-45 and 56) that a jury might assess chronic pain differently than a judge.
[44] I accept that the defendants did adopt a particular litigation strategy that was reliant in part on their election of a trial by jury. This may be an argument that all litigants who elect a trial by jury could make, but in this case, there is specific evidence of the defendants having done so and that it has impacted their trial and settlement strategy.
Balancing the Rights and Interests of the Parties and the Interest of Justice in this Case
[45] Each must be considered having regard to its own facts and circumstances. In this case:
a. October 2020 was the first assigned trial date;
b. There is a scheduled civil jury sitting in Toronto in June 2021 and Toronto has demonstrated that it has the infrastructure and protocols in place to run jury trials during the COVID-19 pandemic — there have been both criminal and civil jury trials that were commenced and completed in Toronto since the pandemic began;
c. The anticipated eight month delay to June 2021 will not require updated expert reports, barring a material change in the plaintiff’s circumstances;
d. If there are jury trials being conducted in Toronto in June 2021 as anticipated, this case will be given priority so as to minimize the potential for other factors preventing it from proceeding, such as constraints due to availability of courtrooms or judicial resources;
e. While there may be some professional time and costs that will have to be duplicated after a delay of eight months when it comes time to prepare again for trial in June 2021, those costs have not been particularized in the admissible evidence before the court, nor would they be expected to be entirely lost; and
f. The cost of the statutory implication of a longer pre-trial loss of income claim has been calculated to June of 2021 to be approximately $3,8001.60; and
g. The defendants adopted and followed a litigation strategy based on the expectation that this action would be tried by a jury. This is the sort of case-specific evidence that Brown JA found to be lacking in the Belton ONCA case (at para. 55);
[46] I accept that the adjournment of this trial will result in some prejudice and inconvenience to the plaintiff. The court’s exercise of discretion must balance the plaintiff’s concerns about the financial and other implications of delay and uncertainty against the loss of the defendants’ substantive right to a trial by jury. Having regard to the specific circumstances of this case, I find that the established prejudice to the plaintiff (of some recognized additional expense to re-prepare experts for trial, the potential loss of $3,800.00 in loss of future income that will become past lost income subject to a 30% reduction and the general inconvenience of an eight-month delay) is not enough to justify depriving the defendants of the loss of their substantive right to a trial by jury after having conducted their defence of this action in reliance upon the existence of that right with the expectation that it will be heard by a jury and not a judge alone.
[47] The plaintiff argues that the unavailability of jury trials in Toronto at this time places this case closer on the spectrum of cases in which jury notices were struck in British Columbia, Ottawa and Hamilton. It is suggested that the October 9, 2020 Notice to the Profession introduces a comparable level of indeterminate delay and uncertainty to that which animated the decisions in Vacchiano, Belton and Higashi. I do not consider it to have had that effect. An additional (and distinguishing) feature of this case to be factored into the balance is that there is a scheduled sitting for civil jury trials in Toronto in June 2021 and there is an infrastructure in place that has already been proven to be successful for enabling jury trials to proceed in Toronto during the COVID-19 pandemic.
[48] This is not a situation of indeterminate delay (as was the case in Higashi). While recent public health guidelines have imposed temporary restrictions that have prevented new jury trials from starting right now, it is still anticipated that there will be a civil jury sitting in Toronto in June and there is the infrastructure in place in Toronto for them to take place, unlike in some other jurisdictions. There have been both criminal and civil juries picked in Toronto for trials that have been heard to conclusion with a jury since September 2020. Further, this case has been identified as one that will be given priority in the June 2021 civil jury sittings, so the general uncertainty about the availability of facilities and judges are not influencing factors in this case.
[49] Nor do I consider the delay of the start of this trial, if it is adjourned to the June 2021 jury sittings in Toronto, to be “unconscionable”, as was found to be the case in the circumstances of the greater than one year delay in the Belton case that had already been adjourned four times.
[50] In conclusion, I find that the plaintiff has not demonstrated it to be in the interest of justice and/or the interests of the parties to require that the trial proceed prior to June 2021 without a jury. In the exercise of my discretion and having considered the specific circumstances of this case, I am not prepared to deprive the defendants of their right to a trial by jury at this time.
[51] If, after waiting eight months until June 2021, a civil jury trial is not available, the interest of justice may balance differently if the plaintiff renews her request to strike the jury notice. She will be at liberty to do so at that time if she finds herself in that situation. The “wait and see” approach is appropriate in the circumstances of this case.
Summary of Disposition
[52] The plaintiff’s motion is dismissed, on the following conditions:
a. The dismissal of the plaintiff’s motion to strike the jury notice now is without prejudice to any renewed motion to strike the jury notice that the plaintiff may decide to bring if the trial of this action cannot proceed with a jury during the June 2021 Toronto civil jury sittings; and
b. Neither party will deliver any further expert reports for the purposes of a trial in June 2021 without the consent of the other side or leave of the court, to be sought in a timely manner before June 2021, allowing reasonable time for a response, so that the trial can proceed, if called. A request for consent or leave may only be made in the event of a material change in the plaintiff’s physical or psychological health or her employability.
[53] The trial of this action is adjourned to the June 2021 civil jury sittings in Toronto and it will be placed on a priority list for those sittings.
Costs and Implementation
[54] Both parties asked for costs of this motion in their factums, although no submissions were made about costs at the hearing. I have decided that the costs of this motion, and of the delay of the trial, are best reserved to the trial judge. Some or all of those costs may ultimately be determined to have been a function of the external forces and realities facing civil litigants in these unprecedented times. Whether or not they become costs “in the cause” that the successful party becomes entitled to should be decided in the context of the broader costs analysis. Given the unusual circumstances, I do not consider the plaintiff’s motion to have been unreasonable.
[55] Notwithstanding Rule 59.05, this endorsement is effective immediately and is enforceable without any need for entry and filing. In accordance with Rule 1.04, no formal Order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this decision may nonetheless submit a formal Order for original signing, entry and filing when the court returns to regular operations.
Kimmel J.
Date: November 2, 2020
[^1]: The other ongoing jury trial was completed as anticipated on Tuesday, October 13, 2020.
[^2]: After hearing this motion, and just before this decision was about to be released, it was brought to my attention that two cases had recently been decided by McKelvey J. in Newmarket, released on October 29, 2020, dismissing motions to strike civil jury notices in circumstances similar to this case, in that there was a temporary suspension of civil jury trials due to the increased COVID-19 restrictions but they were expected to resume in 2021. See MacDougall v. Sisley, 2020 ONSC 6632 (heard September 28 and October 23, 2020) and Piette v. Haskins, 2020 ONSC 6633 (heard October 1 and 23, 2020).
[^3]: Mr. Rachlin had asked on cross-examination about expenses incurred for a narrow time period, after October 3, 2020. The plaintiff did not agree that this particular time period was relevant and produced, instead, particulars of all trial preparation expert fees. If the plaintiff thought those particulars were relevant, they ought to have been sought out and provided before the cross-examination. Whether or not the time frame indicated by Mr. Rachlin was a relevant sub-set is not the issue before me, as that question was refused and no motion was brought, nor is any specific reliance placed on the fact that those particulars are not before the court (of expert preparation costs only after October 3, 2020).