COURT FILE NO.: CV-17-106
DATE: 20201113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DARLENE MACKENZIE
Plaintiff
– and –
CRYSTAL PALLISTER
Defendant
David A. Morin for the Plaintiff
Christopher R. Martyr for the Defendant
HEARD: October 21, 2020
Ruling on motion to strike the jury
C. boswell j.
[1] The plaintiff moves to strike the jury notice delivered by the defendant in this motor vehicle accident claim. The motion is based on the assertion that the COVID-19 pandemic has created great uncertainty about when in-person jury trials may be able to proceed. The plaintiff believes that she will have a much better chance of being heard in a timely way if the case proceeds as a judge-alone trial.
[2] This motion was heard simultaneously with an identical motion in a case called Kranjec v. Green. I released comprehensive reasons in Kranjec dismissing the plaintiffs’ motion on the basis that I believe a wait and see approach to the timing of civil jury trials is preferred in the Central East Region. My reasons in Kranjec are reported at 2020 ONSC 6910.
[3] I am similarly dismissing the plaintiff’s motion in this case, essentially for the same reasons as those expressed in Kranjec. For that reason, this ruling will be brief.
[4] The following chronology provides the necessary context for the ruling.
Chronology
[5] The plaintiff allegedly sustained injuries in a motor vehicle accident on July 19, 2015.
[6] The Statement of Claim was issued July 14, 2017 and served on August 2, 2017.
[7] A Statement of Defence was delivered on January 31, 2018.
[8] The plaintiff was examined for discovery on October 3, 2018.
[9] The action was set down for trial on January 15, 2019.
[10] A pre-trial conference was scheduled for April 15, 2020 and the matter was added to the spring 2020 civil trial list. Those dates were cancelled as a result of the impact of the COVID-19 pandemic.
[11] Mediation was scheduled for March 26, 2020. One day prior to the scheduled mediation, the plaintiff delivered the report of an expert orthopedic surgeon.
[12] In response to the plaintiff’s orthopedic report, defence counsel asked that the plaintiff attend a medical appointment with a defence expert. That appointment has been completed and the defendant is awaiting a report.
[13] The case has yet to be pre-tried, although I understand that a pre-trial is scheduled for the middle of November, 2020, so it should be proceeding imminently.
The Law
[14] The principles to be considered on a motion to strike a jury notice or to discharge a jury are straightforward. They were summarized recently by Brown J.A. in Belton v. Spencer, 2020 ONCA 623 at paras. 26-27. 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.
[15] Undoubtedly, timeliness is a core component of a just resolution of any proceeding, whether civil, criminal or family. See for instance the comments of Myers J. in MacLeod (Litigation Guardian of) v. Canadian Road Management Co., 2018 ONSC 2186, at para. 30 et. seq.
The Parties’ Positions
[16] The parties’ positions are also straightforward. The plaintiff is concerned that if this matter remains scheduled as a jury trial, there may be considerable delay before it can be heard, given the impact of the pandemic. That impact is not as profound on non-jury trials because the court has the ability to conduct those trials in a virtual courtroom.
[17] Defence counsel contends that this case is not yet even ready for trial. Moreover, counsel says, the plaintiff hasn’t exactly been diligent about moving the case along. The defence submits, in essence, that the plaintiff’s complaints about delay are disingenuous and reflect an attempt to take advantage of the pandemic to strike the jury.
Analysis
[18] When a plaintiff certifies that her claim is ready for trial, she is generally prohibited from bringing further motions without leave of the court. See Rule 48.04(1) of the Rules of Civil Procedure. Defence counsel took the position, at least in his factum, that leave should be denied. He did not press the leave issue in oral argument, no doubt because it is not his best argument. Given the pandemic raging in Ontario at the present time and its impact on the court’s operations, this is clearly an appropriate case for leave to be granted in the interests of justice.
[19] Though I grant leave for the motion to proceed, I am dismissing it on the basis that it is premature. I have reached that conclusion for two reasons.
[20] First, this case is not yet trial-ready. It has not even been pre-tried. Even in a world without the pandemic, the earliest this case could expect to be tried is the spring 2021 sittings. I appreciate that an argument might be raised that this case was meant to have been tried in the spring 2020 sittings and has been delayed because of the pandemic. But that argument ignores the fact that the plaintiff served a significant new medical report three weeks before the previously scheduled pre-trial. This case would not have been ready to be heard during the spring 2020 sittings.
[21] Second, as I noted in Kranjec, the resources to conduct in-person civil jury trials varies from region to region around the province. The Central East Region has been very active in preparing courtrooms to hear jury trials. While criminal trials will be prioritized in those courtrooms, there should be time available in the next several months at least to hear civil jury trials. This is not a case where we can yet say with any confidence that there is likely to be significant delay.
[22] For these reasons I concur with the approach of my colleague, McKelvey J., as expressed in MacDougall v. Sisley, 2020 ONSC 6632 and in Piette v. Haskins, 2020 ONSC 6633, that a wait and see approach is preferable in the circumstances that currently exist in the Central East Region.
[23] Having said that, I take judicial notice of the fact that the number of positive COVID-19 cases is rising dramatically in Ontario. It may be that the circumstances grounding the result of this motion change in the near future. For that reason, the plaintiff may re-initiate its motion in the event that:
(i) The court again suspends in-person hearings in Simcoe-Muskoka facilities; or,
(ii) This action has not been scheduled for trial prior to April 1, 2021.
[24] I encourage the parties to agree on the issue of costs. In the event they are unable to, they may make written submissions, not to exceed two pages in length. The defendant’s submissions are to be served and filed by November 27, 2020 and the plaintiff’s by December 11, 2020. They may be filed through my judicial assistant by email at Jennifer.Smart@Ontario.ca.
Boswell J.
Released: November 13, 2020