ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN KRANJEC, NORMA KRANJEC and JENNIFER KRANJEC
Plaintiffs
– and –
STEPHEN GREEN and INTACT INSURANCE COMPANY
Defendants
David A. Morin for the Plaintiffs
Ian Hu for the Defendants
Stephen Green not appearing
HEARD: October 21, 2020
Ruling on motion to strike the jury
C. Boswell J.
1The plaintiffs move to strike the jury notice delivered by the defendant, Intact Insurance. They assert that the interests of justice support converting this matter to a judge-alone trial because of uncertainty surrounding the court’s ability to hear civil jury matters in a timely way. They fear they will be in an indefinite holding pattern awaiting a jury trial in the face of the COVID-19 pandemic.
2I heard the plaintiffs’ motion by zoom conference together with an identical motion in a case called MacKenzie v. Pallister.
3For the reasons that follow, I am not prepared to strike the jury notice at this time in either this case or the MacKenzie case. In view of the efforts now underway in the Central East Region to accommodate civil jury trials, it is preferable, in my view, to take a wait and see approach.
CHRONOLOGY
4The plaintiffs are a wife, her husband and their daughter. Each sustained injuries in a motor vehicle accident in Orillia on September 5, 2014. Their vehicle was “t-boned” in an intersection by Mr. Green, an uninsured motorist.
5The plaintiffs commenced an action on September 3, 2015. They sued the other driver as well as their own insurer, Intact, under the uninsured motorist provision of their policy of automobile insurance. Intact was served with the claim on December 16, 2015.
6Mr. Green has not defended the action.
7Intact filed a defence on April 13, 2016, followed by a jury notice on May 19, 2016.
8Discoveries were completed by June 13, 2017.
9Mediation was attempted on August 21, 2018 but failed.
10The action was set down for trial on February 11, 2019. A pre-trial was held on October 22, 2019 and the matter scheduled for trial during the November 2020 civil trial sittings in Bracebridge. It requires an estimated four weeks to try.
THE COVID-19 IMPACT
11The first presumptive case of COVID-19 in Ontario was identified on January 25, 2020. One person, in a population of almost 15 million. Since then, more than 85,000 Ontarians have tested positive for the virus. More than 3,200 have died. As I write this ruling, positive cases are increasing at significantly more than 1,000 per day.
12The pandemic has had a profound impact on all aspects of daily living: work, leisure, family activities and community engagement. The virus has demonstrated a singular disinterest in the aspirations of the community, including the best laid plans of the administration of justice.
13The public health management of the pandemic has focused on “flattening the curve”. The basic premise involves a concession that we may not be able to eradicate the virus, but we must do everything we can to keep the number of infections from spiking beyond the ability of our health care system to manage.
14The central strategy to flatten the curve has always been the promotion of social distancing. That means keeping at least two metres apart from everyone else, other than those in one’s small social “bubble”.
15It can be very difficult to achieve social distancing in public gatherings. In the result, movie theatres, gyms, restaurants, sports facilities and event centers have been all but shuttered, at least in areas identified as “hot spots”.
16The effect on the courts has been profound. On March 15, 2020 the Chief Justice of the Superior Court suspended all normal operations of the courts, effective March 17, 2020. Initially only the most urgent matters were dealt with, generally in writing or through video or teleconferences. On July 27, 2020 the November civil trial sittings for the Central East Region were officially cancelled, leaving the status of this matter somewhat in limbo, awaiting further notification from the court.
17As time went on and the court’s ability to hear matters remotely advanced, significantly more hearings became feasible. Since March 17, 2020 the court has conducted well in excess of 50,000 remote hearings.
18Public safety remains the primary concern. Remote hearings, while challenging in some respects, are currently favoured by the court for safety reasons. Significant efforts have been taken to enable the court to conduct entire trials virtually. Recent proceedings have demonstrated that virtual trials can work and work well.
19At the same time, the court has no intention of becoming an all-virtual institution. In-person hearings are important and indeed necessary in a range of different matters. Jury trials are a classic example. And so Herculean efforts have been made to renovate court facilities to enable in-person hearings to proceed in a safe and secure environment.
20In Barrie, for instance, almost all of the courtrooms have been extensively outfitted with plexiglass, creating barriers separating the participants in the courtroom. Seating throughout the courthouse has been altered and marked to ensure social distancing. Hand sanitizer stations have been installed at numerous locations. And active screening is in place at the entrance.
21In the largest Barrie courtroom, extensive renovations have been undertaken to enlarge the jury box to ensure that up to fourteen jurors can occupy it and yet socially distance at the same time. Cameras and monitors have been set up throughout the room to ensure that all participants have quality sightlines to the witnesses and any documents on display. Protocols have been established for jury selection and deliberation, with public health and safety foremost in mind.
22Similar renovations have been undertaken throughout Central East Region, including in Newmarket, Oshawa and, most recently, in Midland.
23On September 17, 2020, the Regional Senior Justice for the Central East Region released a Notice to the Profession which confirmed that the fall 2020 civil trial sittings are cancelled in the Central East Region. It advised that the status of the spring 2021 sittings is uncertain. At the same time, however, it advised of the resumption of civil proceedings, including trials. It created a running civil trials list and established a protocol for parties to add their cases to the list. A copy of the relevant sections of the Notice is attached as Appendix “A” to this ruling.
24This case is, according to the protocol, eligible to be added to the running list. As of the date this motion was argued, counsel had not yet requested that it be added.
THE PARTIES’ POSITIONS
25The plaintiffs contend that it is in the interests of justice to strike the jury notice largely because not doing so will condemn this case to an indefinite, but undoubtedly lengthy, delay.
26They point to the fact that this case involves an accident that occurred in September 2014 – more than six years ago. It is unconscionable, in their view, that they should have to wait indefinitely for justice to be done.
27The plaintiffs’ concern is that even if the court has an ability to conduct in-person jury trials, that ability remains limited. What limited resources the court has will, they fear, be marshalled for the purpose of conducting criminal trials where delay takes on a constitutional dimension.
28Intact submits that the jury notice ought not to be struck. A trial by jury is a substantive right, they say, and ought not to be lightly interfered with. In this instance the plaintiffs have only themselves to blame for the length of time it has taken to get the case trial-ready. Now that it is, there is a reasonable prospect that the trial may proceed in a timely way. Intact urges the court to take a wait and see approach.
THE GOVERNING JURISPRUDENCE
29There have been a number of recent cases involving requests by plaintiffs to vacate jury notices due to pandemic-related delays.
30In Belton v. Spencer, 2020 ONSC 5327, Sheard J. struck out a defendant’s jury notice in a personal injury action that had been outstanding since May 2012 and set down for trial since May 2017. It had been bumped from trial lists in November 2018, May 2019 and November 2019. It was eventually scheduled to be heard in the November 2020 sittings at Hamilton.
31In June 2020, the parties were told by the Regional Senior Justice for the Central South Region that it was unlikely that civil jury trials would be heard in that region in 2020 and it was likely that the trial would be delayed 12-18 months.
32Sheard J. struck the jury notice on the basis that the defendant’s right to a trial by jury was outweighed by the need to provide the plaintiff with timely justice. The trial was almost immediately scheduled to proceed by judge-alone on October 5, 2020.
33The defendant appealed and sought a stay of Justice Sheard’s order pending the hearing of the appeal. Brown J.A. heard the motion and denied it. In doing so, he referenced a number of key principles that guide the decision-making process when a party seeks to strike a jury notice. They include:
(a) The right to a jury trial is a substantive right, but it is not an unqualified one. It must sometimes yield to practicality;
(b) While the court should not interfere with the right to a jury trial without just cause or cogent reasons, there remains a broad discretion to determine whether justice would be better served by the discharge of the jury; and,
(c) 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.
See Belton v. Spencer, 2020 ONCA 623 at paras. 26-27.
34Timeliness is an important ingredient of a just resolution. As Myers J. observed in MacLeod (Litigation Guardian of) v. Canadian Road Management Co., 2018 ONSC 2186, for a civil resolution to be a just resolution the dispute must not take too long or be too expensive. (Para. 30). He reasoned that if the presence of a jury is likely to result in disproportionate delay or cost, the interests of justice may not be served. “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’”. (Para. 32).
ANALYSIS
35The motion, as argued, focused on the issue of delay and the impact that the pandemic has had on the court’s ability to conduct civil jury trials in a timely way.
36But there is a preliminary issue that must be addressed. The plaintiffs require leave to bring this motion under Rule 48.04(1) of the Rules of Civil Procedure because they have certified that this action is ready for trial. Intact submitted in its factum that leave ought not to be granted. Counsel did not pursue that argument in oral submissions and in my view it can be dealt with briefly.
37The granting of leave under Rule 48.04(1) is discretionary. The rule does not, however, provide any guidance as to when leave should or should not be granted. Generally, when a rule provides no guidance for the exercise of a discretion, the interests of justice govern. It appears, however, that there is a split in the jurisprudence about what the appropriate test is under this provision.
38One line of authority would require the moving party to demonstrate a substantial and unexpected change in circumstances since the action was set down for trial. See, for instance, Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740. More recent authority would require only that a moving party establish that leave is necessary in the interests of justice. See, for instance, Kaur v. Blue Cross Insurance Co. of Canada, 2018 ONSC 3303.
39I prefer the reasoning in Kaur, largely because the straightforward language of r. 48 does not mandate a stringent test such as a substantial and unexpected change of circumstances. I see no reason to fetter the court’s discretion unnecessarily by importing such a requirement.
40Having said that, I find that COVID-19 is, in any event, a substantial and unexpected change in circumstances. I also find that due to the prevailing circumstances – in particular, the impact of the pandemic – it is necessary, in the interests of justice, that leave be granted. All that is to say, whichever test applies, I find it has been met. Leave is granted for the motion to proceed. I turn then to the central issue: will justice be best served by striking the defendant’s jury notice and permitting this trial to proceed before a judge alone?
41Delivering timely justice for civil litigants in Ontario has been a serious concern for some time. Already pervasive delays in the system were aggravated following the Supreme Court’s ruling in R. v. Jordan, 2016 SCC 27 which set strict time limits on the completion of criminal cases in this court. The ruling in Jordan resulted in the directing of greater judicial resources to the hearing of criminal matters to ensure constitutional timelines are observed. The civil justice system suffered a corresponding decline in judicial resources. And then came COVID-19.
42It is indisputable that the pandemic has had a profound impact on the already strained ability of the court to deliver timely justice in civil cases. For a number of months after the initial suspension of operations in March 2020, the court was unable to hear any civil trials anywhere throughout the province. But the court has mounted a serious counter-attack, as I noted above. Trials – both jury and non-jury – are beginning to be heard again. Some are being heard in person, more are being heard remotely or by a hybrid process.
43Still, uncertainty does remain about when civil jury trials will be regularly scheduled. That uncertainty has prompted a number of recent motions across the province to strike jury notices, based on the premise that the court will be able to conduct a non-jury trial much sooner than a jury trial. The results have been inconsistent, largely because the resources to conduct in-person civil jury trials varies across regions.
44Ontario cases where jury notices have been struck include:
(a) Belton v. Spencer, as above;
(b) Higashi v. Chiarot, 2020 ONSC 5523, a September 1, 2020 decision of Roger, J. in the East Region. Justice Roger noted that, as of the date of his ruling, it was entirely unclear when civil jury trials might resume in Ottawa. By contrast, a four-week judge-alone civil trial, conducted virtually, could be accommodated either before the end of this calendar year, or very early on in the new year. He concluded that the interests of justice required that uncertainty be left behind in favour of the timely resolution of the litigation by way of a non-jury trial;
(c) Louis v. Poitras, 2020 ONSC 5301, a September 9, 2020 decision of Beaudoin J. in the East Region. Justice Beaudoin noted that, as at the date of his ruling, no plan had been finalized for the hearing of jury trials in Ottawa and that criminal trials would remain a priority. The action arose from a motor vehicle accident that occurred in May 2013. The claim was commenced in May 2015. The trial could be heard within 6 months if it proceeded before a judge alone. Justice Beaudoin concluded that justice would be better served by the action proceeding in a timely way before a judge alone; and,
(d) Coban v. Declare, 2020 ONSC 5580, a September 17, 2020 decision, again by Justice Beaudoin of the East Region. The jury notice was struck for reasons similar to those expressed in Louis v. Poitras. Even though the underlying motor vehicle accident had only occurred two years prior, Justice Beaudoin found that the plaintiffs urgently needed a decision on their entitlement to compensation and they should not have to live with the uncertainty of a jury trial held in limbo by the pandemic.
45Ontario cases where courts have declined to strike jury notices include:
(a) Jiang v. TTC, 2020 ONSC 5727, a September 23, 2020 decision of Wilson J. out of Toronto. As the triage judge for scheduling civil motions, she declined to even schedule the plaintiffs’ motion to strike a jury notice. Her decision was grounded in the fact that civil jury trials are being scheduled in Toronto. In the result, this was not a case like Belton, Higashi or Louis where the court had to weigh the uncertainty of a suspended jury trial list against the timeliness of a non-jury trial;
(b) MacDougall v. Sisley, 2020 ONSC 6632, an October 29, 2020 decision of my Central East Region colleague, McKelvey J. He was asked to strike the jury notice in a personal injury action where the plaintiff suffered a traumatic brain injury when struck by an errant golf ball on May 30, 2016. The action was set down for trial in May 2017 and was scheduled to be heard in the May 2020 trial sittings in Barrie. Justice McKelvey canvassed the case law to date and concluded that a wait and see approach was preferable in this region. He reasoned that there may well be courtroom time available to conduct jury trials in the Central East Region over the next several months and beyond. Moreover, the recent establishment of the running list for jury and non-jury civil matters in the region creates some optimism that jury trials will be able to proceed throughout the region in the weeks to come. In his view, it was premature to conclude that a failure to strike the jury notice would lead to substantial delay and harm to the plaintiffs; and,
(c) Piette v. Haskins, 2020 ONSC 6633, another decision of Justice McKelvey, again dated October 29, 2020. This claim arose from a motor vehicle accident that occurred in March 2016. The plaintiff’s motion was dismissed for reasons similar to those expressed in MacDougall.
46There is a convention of horizontal precedent known as comity. It encourages courts of concurrent jurisdiction to respect each other’s decisions unless it can be said that a prior decision was plainly wrong. See R. v. Scarlett, 2013 ONSC 562.
47Cases that address similar issues can often be distinguished from one another on the facts. For instance, if the issue is whether a jury notice should be struck due to COVID- related delays, cases may be distinguished from one another on the basis of the varying resources available in the eight distinct judicial regions in this province. As McKelvey J. observed in MacDougall, “circumstances matter”. (Para. 33). When cases are not readily distinguishable on their facts, however, then the principle of judicial comity comes into play.
48The circumstances of the case at bar are not readily distinguishable from those that inform the decisions in MacDougall and Piette. In the result, I am, in my view, compelled to follow Justice McKelvey’s lead, unless I consider his conclusions to be plainly wrong. I do not. In fact, I entirely agree with him.
49Central East Region has the resources and the will to conduct civil jury trials and has established a running list of cases to proceed when courtrooms become available.
50The parties to this case were, in fact, offered, on October 22, 2020, four weeks of trial time in Barrie, to commence the week of November 23, 2020. Both sides indicated that they could not be ready on a month’s notice and requested a date in January, 2021.
51While I cannot provide them with a fixed date in January at this point, there is a reasonable basis to believe that the court will have the ability and the resources to conduct civil jury trials during the early part of 2021 and, hopefully, beyond. As of January 1, 2021 another remodeled jury courtroom will come on stream in Midland.
52Criminal jury trials will be prioritized for the courtrooms capable of conducting jury matters, but those courtrooms are not currently fully booked for the early part of 2021. Moreover, cases frequently resolve as trial dates approach. Other times accused persons will re-elect to a judge-alone trial. In other words, not every criminal trial scheduled to proceed before a jury will actually proceed as a jury trial. There will be opportunities for civil cases to fill the gaps, provided counsel take a flexible approach to scheduling.
53Courts are frequently called upon to balance competing rights. Here, the plaintiffs’ right to a timely trial is butting up against the defendant’s right to a jury trial. If this were a situation, like in Belton, where I could say with some confidence that the trial will be delayed another year to eighteen months if the jury notice is not struck, I would be inclined to follow Justice Sheard’s lead. But like Justice McKelvey, I am not presently satisfied that such a delay is inevitable in this region. Indeed, the parties have already been offered one opportunity to proceed with their trial. I anticipate that other opportunities will arise in the relatively near future.
54I am not prepared to grant the plaintiffs’ motion at this time, for the reasons I have expressed. While I am optimistic, I appreciate that the circumstances on the ground may shift. Ontario is now experiencing a significant rise in COVID cases as a second wave of the pandemic rolls over the province. The government may be compelled to re-introduce restrictions similar to those seen in the spring of 2020. The court’s executive may feel the need to restrict in-person hearings again.
55In the result, the plaintiffs may renew their request to strike the jury notice if either of the following events arises:
(i) The court again suspends in-person hearings in Simcoe-Muskoka facilities; or,
(ii) This case has not been scheduled for trial by April 1, 2021.
56In the meantime, counsel are encouraged to ensure that this case has been added to the running list and that they continue to monitor that list.
57The parties are encouraged to reach an agreement on the issue of costs. If they are unable to agree, then they may make written submissions, not to exceed two pages. Their submissions should be filed with my assistant, Jennifer.Smart@Ontario.ca on a fourteen day turnaround. The defendant’s submissions should be served and filed by November 27, 2020 and the plaintiffs’ by December 11, 2020.
Boswell J.
Released: November 13, 2020
APPENDIX “A”
Excerpt from the September 17, 2020 Notice to the Profession
PART B: THE RUNNING CIVIL TRIAL LIST
Eligibility of a Matter to Be Placed on The Running Civil Trial List
- Only cases that have been pre-tried and deemed ready for trial by a pre-trial judge will be eligible to be placed on The Running Civil Trial List. By implication, this will include all cases that were not reached in the November 2019 and May 2020 civil trial sittings. In addition, any case that has been pre-tried since March 15, 2020, and deemed ready for trial by the pre-trial judge will be eligible to be placed on The Running Civil Trial List. There will be no requirement to attend in the CETSC (Central East Trial Scheduling Court).
How Cases That Are Eligible Get Onto The Running Civil Trial List
Cases that are eligible as specified in paragraph 6 can get onto the running list in one of two ways, either on consent of the parties or by order of a triage judge.
If all parties consent to be placed on the running list, a letter of request confirming that the case was on the November 2019 or May 2020 trial sittings list, or that it has been pre-tried since March 15, 2020, and by whom, together with the written consent of all parties (which can be in the form of an email message), shall be sent to Stephen.Colomvakos@ontario.ca. The information will be forwarded to the triage judge. The triage judge will confirm that the case meets the definition of eligibility and the matter will then be placed on the running list.
In situations where all parties do not consent, the party seeking to be placed on the running list shall send a letter of request confirming that the case was on the November 2019 or May 2020 trial sittings list, or that it has been pre-tried since March 15, 2020, and by whom, to Stephen.Colomvakos@ontario.ca together with a memorandum not to exceed two pages in length detailing the history of the case and the reasons why it should be placed on the running list. Any party who opposes being placed on the running list shall provide their position in a responding memorandum not to exceed two pages in length, sent to Stephen.Colomvakos@ontario.ca no later than five days after receipt of the requesting party’s email.
If no responding memorandum is received before the expiry of the five days, the triage judge will deal with the request as an unopposed request.
If a responding memorandum is received before the expiry of the five days, the triage judge will consider whether they can decide the request to be placed on the running list on the basis of the parties’ memoranda, or whether there is a need to conduct a conference call with the parties.
The triage judge will advise the parties of the decision on the request to be placed on the running list, by email. In deciding whether to add a case to the running list, the triage judge may order that it not be called before a certain date, where a party has advised about issues concerning witness availability or other trial commitments of counsel.
Consequences of Being Placed on The Running Civil Trial List, and Adjournments
Once a matter has been placed on The Running Civil Trial List either on consent of the parties or by order of the triage judge, the parties will be expected to be available to commence the trial when called, unless there is a settlement. Cases will be called in on a minimum of three days’ notice prior to the trial commencement date.
Where there is an exceptional circumstance such that a party needs to seek an adjournment, the party must immediately send a request for adjournment to Stephen.Colomvakos@ontario.ca. The request will be put before the triage judge who will make an initial determination whether the request can be dealt with in writing or whether a conference call is required. While the granting of an adjournment is always discretionary, the Court will apply an “exceptional circumstances test” to any request for adjournment.
Counsel with Multiple Cases on The Running Civil Trial List
- Counsel who have multiple cases on The Running Civil Trial List will NOT be expected to try those cases back to back. In other words, if a case proceeds to trial and counsel has other cases on the list, they will not be expected to start another trial immediately upon completion of the first. The Court will extend an interval of three weeks before another of counsel’s cases is called in. This will allow counsel time to prepare the cases they have on the running list.
Status of The Running Civil Trial List
- The Court will attempt to provide updated copies of The Running Civil Trial List to the Local Bar Associations at regular intervals. It will be the responsibility of the parties to know where they are on the list. The parties are asked to avoid contacting the trial coordinators about where a particular case is on the running list. The trial coordinators are inundated with emails and phone calls and may be unable to respond promptly to queries about the running list.
In Person and Virtual Non-Jury Trials, and Documentary Evidence
Parties should be prepared to conduct non-jury civil trials virtually, via Zoom. When a request is made to add a non-jury case to The Running Civil Trial List, each party should indicate in their two page memorandum any reason why the case must be heard in person rather than via Zoom. The triage judge will decide the issue on the basis of the parties’ memoranda, unless the triage judge finds there is a need to conduct a conference call with the parties. In some cases, it may be determined that a hybrid trial is appropriate, i.e. that some part of the trial will be heard via ZOOM, and some part by in person appearances in a courtroom.
Whether a non-jury case proceeds in person or via Zoom, all parties should consider and discuss among themselves in advance of the trial what documents the trial judge needs to render a fair decision. The parties should have all documents available in an electronic format that is user-friendly. At the end of the evidence, the parties will be expected to present their closing arguments with the assistance of written submissions that are hyperlinked to the relevant documents and case law.