Court File and Parties
COURT FILE NO.: CV-15-00001909 DATE: 2020-12-08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Heinz Peter Pietsch and Lynne Beauparlant, Plaintiffs AND: Jacqualine Lyons, Defendant
BEFORE: Rady J.
COUNSEL: Jennifer Mitchell, for the plaintiffs Anne Davenport, for the defendant
HEARD: November 25, 2020
ENDORSEMENT
Introduction
[1] The plaintiffs seek an order striking the jury notice delivered by the defendant in this personal injury action because:
• the anticipated medical and biomedical expert evidence is too complex for a jury to properly understand in order to render a fair and just verdict; and
• the COVID-19 pandemic has made it unlikely that the case will be tried in a timely way and the plaintiffs are suffering prejudice due to the delay.
[2] I have concluded that the facts of this case compel the “wait and see” approach favoured in a number of decisions and most recently by the Divisional Court in Louis v. Poitras, 2020 ONSC 6907 (Div. Ct.).
Facts
[3] The lawsuit arises from an October 4, 2013 motor vehicle accident. The statement of claim was issued on September 14, 2015. The plaintiffs seek general damages and past and future economic losses.
[4] A statement of defence and jury notice followed. Liability has been admitted by the defendant.
[5] The action is trial ready and is currently scheduled to commence with jury selection September 7, 2021, some nine months hence.
[6] The case was previously scheduled to be heard on three occasions. As I understand it, the first two dates were adjourned due to a lack of judicial resources. On the second occasion, in September 2019, the parties had actually selected a jury, but the case had to be adjourned because a trial judge could not be made available. The third date was suspended and then rescheduled because of the impact of the pandemic on court operations.
[7] With that background, I turn to the plaintiffs’ submissions.
Complexity
[8] On the issue of complexity, the plaintiffs submit that the competing expert reports, both medical and biomedical, raise not only diagnostic and causation issues, but also questions about the experts’ respective methodology, the underlying science and their Rule 4.01 impartiality. So, for example, the engineering experts disagree over whether there is a biomechanical mechanism for the lead plaintiff’s injuries. The medical experts part company on whether he sustained a concussion and fundamentally, on how concussions are diagnosed. There are also questions raised about the plaintiff’s post-MVA medical care and the extent to which it affects his current condition. These issues are said to be too complex for a jury to properly evaluate.
[9] The plaintiffs submit that if the case is tried by a judge sitting without a jury, the trial will be shortened. For example, a number of pretrial motions, perhaps as many as six, will become unnecessary; the currently anticipated twenty witnesses will be reduced; and the six week trial estimate will become three making it probable that the trial will be heard as scheduled or possibly even earlier.
COVID-19
[10] The parties are agreed that the pandemic has had a profound effect on the legal system. The conduct of jury trials, both civil and criminal, has been suspended twice, most recently until January 4, 2021 (except in areas identified as green zones).
[11] The essence of the plaintiffs’ submission is that the prospect of having a trial proceed as scheduled or earlier is enhanced if conducted without a jury. They also suggest there is a “backlog caused by the COVID-19 pandemic” (see para. 23 of the plaintiffs’ factum) that will have an impact on the management of trial time next year.
[12] The defendant’s position is briefly stated. First, the case has been trial ready for some considerable time and no issue was raised previously about complexity. Second, the issues are not unusual in motor vehicle litigation. She advocates a “wait and see” approach.
Analysis
[13] I am not persuaded that the jury notice should be struck at this time on either ground individually, or cumulatively.
[14] It is significant that this is the first time that the issue of complexity has been raised, notwithstanding that the parties were poised for trial on three earlier occasions. That a jury was selected in September 2019 without complaint significantly undermines the plaintiffs’ argument.
[15] However, I am not prepared to rule on the merits of the complexity argument because to do so ignores that trials are dynamic processes. There are occasions during trial when it becomes clear that the issues are more or less complicated than was thought prior to trial. Litigators understand that witnesses, including experts, can be unpredictable and cross-examination can yield unexpected results.
[16] I note that Rule 47.02(3) reserves to the trial judge the discretion to strike a jury for a variety of reasons, which can include complexity – as the evidence unfolds or even at the outset of trial.
[17] With respect to the pandemic related issues, a preliminary observation is in order. An allegation of delay alone has been held to be an insufficient basis on which to strike a jury. See Louis at paras. 43 and 50.
[18] As a result, there must be a sufficient evidentiary record on which the court can rule. Much of the plaintiffs’ argument rested on conjecture about the state of the trial list, court facilities, and the allocation of resources. Counsel for the plaintiffs expressed what I consider to be considerable pessimism about the outlook for 2021. However, as I observed to counsel during the course of submissions, the court has made significant and rapid advances in its ability to adapt. Virtual hearings are now routine. They were practically unheard of prior to this year. An electronic filing system is in place.
[19] The plaintiffs made no reference to communications by the Local Administrative Judge, the most recent effective November 2, 2020. He spoke of the number of courtrooms that have already been or will be modified to abide COVID protocols, which obviously will enhance the ability to conduct hearings in person. I am aware that some in-person hearings have been conducted during the fall, including two criminal jury cases.
[20] I am not certain if inquiries were made of the Trial Coordination Office for relevant, region-specific information that would be of assistance. See Louis at para. 74. Most of the cases to which reference was made reflects the situation in centres such as Toronto, its surrounding area and Ottawa. I think it is fair to say that the experience varies from region-to-region. Local information is therefore necessary. By way of example, I do not know whether the plaintiffs’ contention that there is a backlog is true. Nor is it clear whether a non-jury case is more likely to be heard before a jury trial.
[21] However, leaving the deficiencies in the evidentiary record aside, it is notable that this case can hardly be said to be on the eve of trial. Much can happen between now and next fall, making even current information subject to change and the wait and see approach the most suitable. Consequently, this case bears more similarity to Saadi v. Silva, 2020 ONSC 6700 than many of the other decisions cited.
[22] In Saadi, the trial was scheduled to start in October 2020 and a jury was selected on October 5, 2020. The trial had not yet commenced and was adjourned after Premier Ford announced on October 9, 2020 that Toronto was returning to modified Stage Two restrictions due to increases in COVID-19 cases. On the same day, the Chief Justice suspended any in-person jury trials that were already in progress. Justice Kimmel dismissed the plaintiff’s motion to strike the jury notice on a without prejudice basis. The plaintiff will be at liberty to renew the motion if the trial cannot proceed as rescheduled, during the June 2021 sittings.
[23] In my view, the alleged prejudice to the plaintiffs caused by any delay is attenuated by the following:
the trial judge retains a discretion pursuant to s. 130 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 to modify the applicable prejudgment interest rate in appropriate circumstances;
the lead plaintiff is receiving a number of income replacement/supplements that undoubtedly ease financial pressures;
the yearly increase in the quantum of the monetary threshold is matched or offset by an increase in the cap on non-pecuniary general damages; and
in any event, if the plaintiffs prevail at trial on their theory of damages, the deductible is a non-issue.
Disposition
[24] For these reasons, the motion is dismissed as premature and without prejudice to it being renewed in future as circumstances may dictate.
[25] I invite the parties to resolve the issue of costs. If they are unable to agree, I will receive brief written submissions by January 8, 2021, according to a timetable I leave to counsel to arrange.
“Justice H.A. Rady”
Justice H. A. Rady
Date: December 8, 2020