COURT FILE NO.: 14-61862
DATE: December 17, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angela Azaria, Tate Bashaw and Sabrina Bashaw
Plaintiffs/Moving parties
– and –
William Oldford
Defendant
Frank McNally for the plaintiffs
Pat Peloso for the defendant
HEARD: December 15, 2020
decision on motion to strike A JURY NOTICE
Justice S. Gomery
[1] Angela Azaria has sued William Oldford for personal injuries she says she suffered in a motor vehicle accident. Mr. Oldford has served a jury notice. The case is currently set to be tried for four weeks beginning January 18, 2021.
[2] On December 3, 2020, the plaintiffs served a motion to strike the jury notice. They contend that if the notice is not struck, the trial will have to be adjourned indefinitely due to restricted court operations in Ottawa during the Covid-19 pandemic. According to an affidavit sworn Janan Arafa, one of the plaintiffs’ lawyers, Ms. Azaria will suffer ongoing financial distress if the trial is postponed and her claim for future income loss will be eroded.
[3] The defendant contests the motion. He contends that Ms. Azaria has not established that she should be granted leave to make this motion or that she will suffer prejudice if the motion is dismissed. According to the defendant, the parties are not ready for trial. His psychiatric expert, Dr. Jeffrey McMaster, has not yet been provided with all of the records that he needs to complete his defence medical report. Without this report, a pre-trial conference commenced on November 30, 2020 cannot be completed. As a result, the trial is unlikely to proceed as currently scheduled, whether or not the notice is struck.
[4] I will briefly review the history of this action, then consider whether the parties will be ready to proceed to trial next month. My conclusion on this question will inform my decision on the plaintiff’s motion to strike the jury notice.
[5] The history of the action is set out in Ms. Arafa’s affidavit by Janan Arafa and an affidavit by Kyle Dow, a lawyer at the firm representing the defendant. The parties have also each produced, as exhibits to these affidavits, court endorsements, correspondence and other material.
[6] Mr. Oldford’s car hit Ms. Azaria’s car on November 1, 2012. She sued him in September 2014. The matter was set down for trial in June 2018. The trial was scheduled for January 2021 at a pre-trial conference before Master Fortier on August 2, 2019.
[7] At this same pre-trial conference, Master Fortier set a six-month deadline for defence medical examinations by a physiatrist and a psychiatrist. She ordered that a further pre-trial conference be held on September 9, 2020.
[8] The defence served an assessment report by a physiatrist on December 5, 2019. A few days later, defence counsel advised plaintiffs’ counsel that an appointment had been arranged for Ms. Azaria to be examined by a psychiatrist, Dr. Jeffrey McMaster, on February 27, 2020, in Toronto. This examination was fifteen days past the deadline set by Master Fortier.
[9] According to Mr. Dow, the plaintiffs disagreed with the choice of Dr. McMaster as a defence medical physician. They also wanted to set conditions about the conduct of the assessment. On February 18, 2020, plaintiffs’ counsel wrote to defence counsel requesting that Ms. Azaria be accompanied by a chaperone during her appointment with Dr. McMaster. They also apparently wanted the appointment to be videotaped. Dr. McMaster objected to conducting an assessment in the presence of a third party, or to having the examination videotaped. Since the parties could not agree on the terms of the examination, the February 27 appointment was cancelled.
[10] In March, the defendant booked a hearing date in August 2020 for his motion to determine the conditions of Ms. Azaria’s assessment by Dr. McMaster. There is no evidence that the defendant could have obtained an earlier hearing date for this motion, particularly given the limited court services available in Ottawa at the time as a result of the pandemic.
[11] On August 21, 2020, the defence presented its motion to compel Ms. Azaria to attend an unchaperoned, un-videotaped assessment by Dr. McMaster on October 7, 2020. Justice Kershman granted it. Ms. Azaria’s companion could accompany her to Dr. McMaster’s office, but was not permitted to be present during the assessment itself. He also ruled that the assessment did not need to be recorded. Kershman J. did grant some concessions to the plaintiffs: he ordered that a social worker be present during the examination, and that the defence pay the costs for Ms. Azaria’s companion to travel with her to Toronto. In awarding $4000 in costs to the defendants on the motion, however, he stated that the defence had been more successful than the plaintiffs.
[12] Kershman J. ordered that Dr. McMaster’s report should be served by November 20, 2020. He adjourned the pre-trial conference set for September 9 to a date to be set between November 22 and December 23, 2020. Finally, he ordered that the trial dates set for this matter would not be vacated without a further court order.
[13] Ms. Azaria went to Dr. McMaster’s office for the scheduled assessment on October 7, 2020. Due to restrictions related to the Covid-19 pandemic, he was unable to arrange for a social worker to attend during the examination. As a result, the assessment had to be re-scheduled again.
[14] Ms. Azaria re-attended Dr. McMaster’s Toronto office on October 29, 2020. A social worker was present, and he began his assessment. That afternoon, however, Ms. Azaria became very upset and left Dr. McMaster’s office. Arrangements were subsequently made for Dr. McMaster to complete his assessment on November 16 and 23, 2020 by videoconference.
[15] There was however another complication. On October 7 and again on November 3, 2020, defence counsel wrote to plaintiffs’ counsel to request that Dr. McMaster be provided with raw data collected by two of the plaintiffs’ experts, Dr. Reesor and Dr. Mousgaard, and by two accident benefits (AB) assessors.
[16] According to Mr. Dow’s affidavit, Dr. McMaster had not received any of the raw data he had requested as of December 14. This is contradicted by Ms. Arafa. She attaches an email from Dr. Reesor’s office confirming that its records were delivered to Dr. McMaster’s associate on December 8. Ms. Arafa acknowledges, however, that the remaining data has not been provided. She says that a law clerk with her office has requested the transmission of requested data to Dr. McMaster from their other expert and one of the AB assessors, and she expects that it will be forwarded shortly. Ms. Arafa says that the plaintiffs’ counsel has refused to request data from the other AB assessor, and that the defendant is no longer insisting that it be provided.
[17] On November 30, 2020, the parties attended a pre-trial conference with Justice McNamara. This is the pre-trial that Master Fortier ordered the parties to attend in August 2019, and which was postponed by Kershman J.’s order in August 2020. Justice McNamara adjourned the conference and directed the parties to speak to the case at the December 16 trial management court. He indicated that he would make himself available to complete the pre-trial conference once Dr. McMaster’s report has been served.
Are the parties ready for trial?
[18] The defence takes the position that the parties are not ready for trial. Dr. McMaster is not able to complete his defence medical report without the data requested from Dr. Mousgaard and the AB assessor. Without the report, the parties cannot complete their pre-trial conference with Justice McNamara or try the case on the merits.
[19] The plaintiffs contend that they expect Dr. McMaster’s report to be served before Christmas, and there will therefore be enough time for the parties to complete trial preparation before January 18, 2021.
[20] Having reviewed the evidence on the motion, I find that the parties are not currently ready for trial, and they likely will not be ready proceed to trial four weeks from now.
[21] In her affidavit, Ms. Arafa says that she expects Dr. McMaster’s report to be served within the next week because her law clerk has received assurances that the requested data will be sent to him “shortly”. This is vague, third hand information uncorroborated by any correspondence between the plaintiffs’ law firm and the assessors whose data has been requested. At the trial management court on December 16, 2020, plaintiffs’ counsel acknowledged that he could not say when the data would be provided to Dr. McMaster. As a result, defence counsel could not say when they expected to receive Dr. McMaster’s report.
[22] Through their conduct, the plaintiffs have effectively conceded the outstanding data is relevant to Dr. McMaster’s assessment of Ms. Azaria. If they did not think so, they would not have taken steps to obtain it. They would have instead taken the same position with respect to this data as they did regarding the data from the second AB assessor.
[23] I further find that Dr. McMaster’s assessment report is critical to the resolution of this case. That is why Kershman J. adjourned the pre-trial conference set for September 2020; in his view, a meaningful settlement discussion could not take place in the absence of this report. Justice McNamara adjourned the pre-trial conference again on November 30 for the same reason. I have no reason not to accept Mr. Dow’s assertion, in his affidavit, that Mr. Oldford needs Dr. McMaster’s report to defend himself at trial. Ms. Arafa does not say otherwise.
Should the plaintiff be granted leave to bring this motion?
[24] Since this motion has been brought after the action has been set down for trial, the plaintiff must obtain the court’s leave to present it; r. 48.04(1). Leave is granted where the moving party can show that there has been a substantial and unexpected change of circumstances, such that hearing the motion is in the interests of justice; Denis v. Lalonde, 2016 ONSC 5960, at paras. 10-12.
[25] The plaintiffs rely on recent decisions on similar motions, where judges have found that the Covid-19 pandemic gives rise to a substantial and unexpected change of circumstances: Coban v. Declare, 2020 ONSC 5580, at para. 29; Higashi v. Chiarot, 2020 ONSC 5523, at p. 2.
[26] The defendant acknowledges that the Covid-19 pandemic has had an impact on court services in Ottawa, and does not make any attempt to distinguish the situation in this case from the situations in Coban and Higashi. He contends, however, that there is “no indication” that the January 18, 2021 trial date is in jeopardy.
[27] The defendant’s argument on this issue does not withstand serious scrutiny. No civil jury trials have taken place in Ottawa since March 2020, when court operations were curtailed due to the Covid-19 pandemic. On October 13, 2020, RSJ MacLeod noted that civil jury trials were suspended for the rest of the year. On November 6, 2020, he directed that civil jury trials remain suspended until further notice and stated that it is “unlikely there will be any capacity for civil jury trials for at least the first six months of next year”. As stated by the Court of Appeal two days ago in Louis v. Poitras, 2020 ONCA 815, it is currently unknown when or how a civil jury trial may be heard in Ottawa.
[28] I therefore find, as did the motion judges in Coban, Higashi, and Louis v. Poitras, that the reduction of court services in Ottawa due to the Covid-19 pandemic is a substantial and unexpected change of circumstances and that it is in the interests of justice that the plaintiffs are granted leave to present this motion.
Should the jury notice be struck?
Legal framework
[29] On motion under s. 108(3) of the Courts of Justice Act, RSO 1990, c. C-43 and r. 47.02 of the Rules of Civil Procedure, a judge may order that a jury notice be struck.
[30] The right to trial by jury in a civil case is a substantive, fundamental right and should not be limited without just cause or cogent reasons; Graham v. Rourke (1990) CarswellOnt 2676 (CA), at p. 625; King v. Colonial Homes Ltd., 1956 13 (SCC), [1956] S.C.R. 528; and Cowles v. Balac, 2006 34916, 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 596, at para. 36. The right to a jury trial in a civil action is not, however, absolute and must “sometimes yield to practicality”; Girao v. Cunningham, 2020 ONCA 260, at para. 171.
[31] In Kempf v. Nguyen, 2015 ONCA 114, at para. 37, the Court of Appeal summarized the appropriate approach to be taken on a motion to strike a jury, based on its earlier decisions in Cowles and other cases:
A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.
[32] In Cowles, at para. 38, the Court of Appeal characterized the test for striking a jury as a “sensible test” that confers broad discretion on the judge who hears the motion. As reiterated by the Court of Appeal in Louis v. Poitras, at para. 21, citing its earlier decision in Kostopoulos v. Jesshope (1985), 1985 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, an appellate court can intervene with the judge’s exercise of discretion only if it find that it was exercised “arbitrarily or capriciously or … based upon a wrong or inapplicable principle of law”.
[33] Recently, there have been a whole series of recent decisions on motions to strike jury notices based on delays caused by the Covid-19 pandemic. Judges have repeatedly emphasized that these delays can cause serious and even irreparable harm to plaintiffs; see, notably, Louis v. Poitras, at paras. 57 to 58; and Belton v. Spencer, 2020 ONSC 527, stay denied, 2020 ONCA 623. Pandemic delays do not however mandate that every motion to strike a jury notice should be granted. Each case must be considered on its own facts.
Application of the principles in this case
[34] In my view, the plaintiffs’ motion must fail for one simple reason. As I have already found, the parties are not ready to proceed to trial, and it is unclear that they will be ready four weeks from now. We do not know:
- when the plaintiffs’ expert, Dr.. Mousgaard, and the AB assessor will provide Dr. McMaster with the remaining data he requires to complete his assessment of Ms. Azaria;
- how long he will need, once he gets this data, to complete his report; or
- when a continuation of the parties’ pre-trial may be held before Justice McNamara once that report is served on the plaintiffs.
[35] I also cannot ignore the possibility that, once the plaintiffs receive the long-awaited report from Dr. McMaster, they will need to ask their own experts to respond to it. Ms. Azaria’s lawyer mentioned, during his submissions, that he may take steps to obtain further assessments if the trial is delayed for any length of time. Compounding all of these timing issues is the upcoming Christmas season, when many businesses close for a week or more.
[36] In these circumstances, I conclude that it is not in the interests of justice to strike the jury notice. It is likely that the January 18, 2021 trial date will have to be adjourned in any event. By the time the parties are ready to proceed, it may be possible to schedule a new jury trial.
[37] I recognize that, if the jury notice remains in effect, the trial dates available for this action may be later than the dates available for a non-jury trial. The plaintiffs argue that any delay works to the financial prejudice of Ms. Azaria, both in terms of perpetuating her current straitened circumstances and reducing her overall claim for income loss. According to an expert income loss report attached to Ms. Arafa’s affidavit, she is currently receiving only 40% of her pre-accident income. Her overall claim for income loss will be reduced if the trial is delayed, because she can only recover 70% of her past income loss. Her lawyer argues that the costs of the action will increase with any further delay.
[38] This argument supports the scheduling of this case for the earliest possible dates that can be obtained, once the parties are ready to proceed. It does not however support displacing the defendant’s choice of a jury trial.
[39] The absence of detailed evidence on the impact of a delay in trial on Ms. Azaria is another problem. She has not filed her own affidavit. No calculation of the cost of delay has been provided.
[40] In short, I cannot weigh the potential prejudice to Ms. Azaria against the prejudice the defendant will suffer if he is deprived of a trial with a jury, because I do not know how long the trial may be delayed in any event or what impact any delay may have, concretely, on Ms. Azaria.
[41] The plaintiffs contend that I should not deny their motion due to the delay in obtaining Dr. McMaster’s report, because the defendant is responsible for the delay in completing the defence medical report. In my view, both parties, as well as the current public health crisis, have given rise to the current situation.
[42] The defendant did not comply with r. 53.03(2), because he did not serve all of his expert reports prior to the August 2019 pre-trial conference, But there is no indication that, at the time, the plaintiffs contested the defendant’s request for Ms. Azaria to attend independent medical assessments after the conference. The trial date was still a year and a half away, and the schedule set by Master Fortier should have allowed the defence ample time to complete the assessments ahead of another pre-trial conference in September 2020.
[43] The defendant also did not comply with the six-month deadline for the conduct of its defence medicals set by Master Fortier. The first appointment with Dr. McMaster was scheduled 15 days after the deadline. According to Mr. Dow, that was the first date that Dr. McMaster was available. Once again, however, the plaintiffs raised no objection to the timing of the appointment when they received notice of it.
[44] Plaintiffs’ counsel criticizes Dr. McMaster’s failure to request raw data prior to October 2020. There is however no evidence that he knew about the data earlier. There is also no evidence about what steps the plaintiffs’ counsel took to respond to the initial October 7, 2020 request. All that is known is that defence counsel had to make a second request on November 3, 2020.
[45] Some of the delay after February 27 is attributable to the plaintiff. Ms. Azaria wanted to impose certain conditions on the way that Dr. McMaster conducted his examination. These conditions were not communicated to the defence until a few weeks prior to the February 2020 appointment. This meant that the appointment had to be postponed until October 2020. Kershman J. found that the conditions Ms. Azaria demanded — requiring that the assessment be videotaped, and that her companion be in the room during the assessment — were unreasonable, although he ordered the defendant to accommodate her in other ways.
[46] Ms. Azaria also chose to cut the October 29 assessment short, forcing Dr. McMaster to complete it remotely just three weeks ago. There is no evidence as to when the plaintiffs’ counsel forwarded Dr. McMaster’s requests for data to Dr. Reesor, Dr. Mousgaard and the two AB assessors.
[47] The Covid-19 pandemic also gave rise to delay in this case, as it has in many others. Dr. McMaster had trouble arranging for a social worker to attend the assessment, delaying the assessment in October by three weeks. It is also quite possible that the pandemic may have also slowed the delivery of the data requested by Dr. McMaster.
[48] Since I cannot conclude that the parties’ lack of readiness for trial is attributable solely to the defendant, the defendant’s delay is not a conclusive factor in favour of granting the motion, as the plaintiffs’ contend.
[49] I conclude that the plaintiff has not met the burden of showing that striking the jury notice is in the interests of justice in this case. I recognize that this is an old case. Everyone involved must work to ensure that the trial takes place as soon as possible. This is not however a case where the plaintiff is being denied a trial due to the inability of the courts to accommodate civil jury trials during a pandemic. The trial is delayed because the case is not ready to be tried.
Disposition
[50] The plaintiffs’ motion to strike the jury is dismissed. This action shall be listed for the trial management court in April 2021 and shall be given priority if the parties are ready to proceed at that time and a new trial date can be fixed.
[51] Although the defendant did not bring a motion to vacate the January 2021 trial dates, I order that they be vacated, as no civil jury trials will be held in Ottawa at that time.
[52] The dismissal of the motion is without prejudice to the plaintiffs’ right to bring another such motion if, at the April 2021 trial management court, the trial of this action cannot be scheduled for hearing in 2021, despite the parties’ readiness to proceed.
[53] If the parties cannot agree on costs of the motion, the defendant shall serve and file cost submissions by January 5, 2021. The plaintiffs shall serve and file responding submissions by January 22, 2021. Each set of submissions shall be no longer than three pages in length, and attach a draft bill of costs as well as any other document directly relevant to a determination of costs on the motion. The submissions shall be filed using the Civil Submissions Online portal.
Justice Sally Gomery
Released: December 17, 2020
COURT FILE NO.: 14-61862
DATE: December 17, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angela Azaria, Tate Bashaw and Sabrina Bashaw
Plaintiffs/Moving parties
– and –
William Oldford
Defendant
decision on motion to strike A JURY NOTICE
Justice Sally Gomery
Released: December 17, 2020