Court File and Parties

COURT FILE NO.: CV-16-00000312

DATE: 2020-12-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Smith and Richard Boothroyd, Plaintiffs

AND:

Brian John Muir, Defendant

BEFORE: Justice S. Nicholson

COUNSEL: B. Legate, for the Plaintiffs

T. McCarthy, for the Defendants

HEARD: December 2, 2020

Endorsement

[1] This was one of the spate of motions being brought due to the COVID-19 pandemic to strike jury notices. In this case, both the plaintiffs and the defendant initially filed jury notices. The plaintiffs now move to strike the defendant’s jury notice and withdraw their own to preserve the trial date.

[2] Subsequent to the hearing of this motion, Brown J.A., sitting as a single motions judge on the Court of Appeal, granted a stay of the Divisional Court’s decision in Louis v. Poitras, 2020 ONSC, 6907; reported at 2020 ONCA 815. Accordingly, I invited each party to make written submissions on the import of that case to the within motion.

[3] Today I also released my decision on another motion to strike a jury notice due to COVID-19 in Solanki v. Reilly, ONSC 8031.

[4] The trial in this case is currently on the March 29, 2021 running list in London.

[5] Prior to the hearing of the motion, and in accordance with the guidance set out by the Divisional Court in Louis, supra, that these motions be heard with the most updated information available, I released a memo to both counsel. I advised them that I intended to take “judicial notice” of the following with respect to the pandemic:

1. There is currently a global pandemic which has resulted in a significant number of deaths and serious illnesses throughout Canada and the province of Ontario.

2. As a result of the pandemic, there has been significant hardship in various forms, including medical, psychological and economic.

3. The virus affects people of all ages and is particularly dangerous to older people and those with certain medical pre-conditions.

4. London has had a lower number of COVID cases than other parts of Ontario, but still has a significant number of cases.

5. London is currently considered to be in a “yellow” zone (however, see para. [8]).

6. There has been a recent increase in the number of cases throughout Ontario, including London, necessitating increased restrictions in many places, with essentially a lockdown in Toronto.

7. It is currently unknown how long the pandemic will last and whether we will see worsening or improvement in the short term.

8. However, there have been recent positive developments with respect to vaccines. The timing and the ability to widely administer the vaccine is not yet known.

[6] I invited counsel to comment upon that list. Counsel for the plaintiffs asked me to also consider that the number of COVID-19 cases is likely to get worse, not better, after holidays such as Christmas, Family Day and March Break, all of which will occur between now and the date of the trial. I accept that to be a likely scenario.

[7] Counsel for the plaintiffs also asked me to accept that no vaccine is expected prior to the scheduled trial date. I am not prepared to make that assumption based on recent positive news about vaccines, although that is clearly a possibility and as noted in #8, the ability to widely administer the vaccine is unknown. In fact, administration of the vaccine commenced between the hearing date and the release of these reasons. I also cannot assume that vaccinations will be widespread by March 29, 2021.

[8] Since the hearing of the motion, while my decision was pending, London has moved from yellow to orange and now to red. A province wide lockdown has just been announced, for a period of 28 days, commencing December 26th.

[9] I also reviewed the current state of London’s court operations with the local administrative judge, as per the suggestions in the case law, and advised counsel in advance of the hearing that I had been advised of the following:

1. With the most recent judicial appointments, the Southwest Region has a full complement of judges. There was a designated family judge appointed so that the “generalist” judges are not required to spend as much time in Family Court as they were previously.

2. The COVID-19 retrofitting of the courtrooms in London is expected to be completed by mid-December 2020. We expect to have all 13 courtrooms available for use in 2021.

3. We had, until recently, conducted criminal jury trials from September, without major concerns. This had involved flexibility in terms of where the jurors sat, using multiple courtrooms and the use of technology.

4. Jury selection, while done differently, has proceeded uneventfully.

5. We had been conducting non-jury criminal trials as well, again with allowances for COVID-19, without significant concerns.

6. At the discretion of the trial judge, technology can be used flexibly and likely includes witnesses participating virtually. A potential factor to consider would be that document heavy cases could be more problematic.

7. While criminal cases have priority due to R. v. Jordan, 2016 SCC 27, it is not accurate to say that we have a “criminal backlog”. There was a very significant criminal resolution rate in 2020.

8. We remain optimistic that we can have both jury and non-jury cases, criminal and civil in early 2021 (however, see para. [10]). The judicial resources are in place to do so. Physical limitations are being managed.

9. From an administrative perspective, there may be no advantage to getting called to trial by being non-jury versus jury in a trial of 3-4 weeks’ duration. In fact, historically, priority has often been given to jury matters in London such that there may be a better chance of getting reached if a matter is to proceed by jury because we want to use a jury that has been empaneled. However, it is easier to break up a trial in a non-jury trial.

10. One factor in whether a case proceeds is the availability of a judge and this depends on each judge’s individual schedule and who pre-tried the case.

11. Whether or not the pandemic was occurring, and whether a case was jury or non-jury, it is extremely difficult to accommodate a seven-week trial, unless scheduled well in advance and assigned a fixed date by the Regional Senior Justice.

[10] Since the hearing date, the local administrative judge has issued a new directive, dated December 11, 2020, adjourning all civil jury trials scheduled to commence in London, Ontario during the month of January 2021 to the January 22, 2021 civil assignment court when new trial dates will be set.

Background:

[11] This case arises out of a motor vehicle accident that occurred on April 30, 2015, resulting in personal injuries to Ms. Smith. Richard Boothroyd is Ms. Smith’s husband and claims damages pursuant to the Family Law Act, R.S.O. 1990, c. F. 3, as amended.

[12] Ms. Smith was born on May 1, 1963 and is now 57 years of age.

[13] The plaintiffs issued a statement of claim on February 1, 2016. Examinations for discovery were held in August of 2016. The plaintiffs delivered a trial record on March 14, 2017. The parties were given a trial date of January 7, 2019 based on an initial estimate that the trial would require three weeks. The first pre-trial was conducted on October 4, 2018.

[14] Following the first pre-trial, the defendant replaced his counsel. A second pre-trial was conducted on December 20, 2018 and at that time, the parties advised the court that the trial would take seven weeks. The trial scheduled for January 7, 2019 was adjourned on January 4, 2019 on the basis that there were no judges available to hear a lengthy seven-week jury trial.

[15] On January 4, 2019, the plaintiffs also brought a motion to remove defence counsel #2 on the basis that he had been in direct contact with Ms. Smith’s health practitioners. That motion was heard on March 18, 2019. That motion clearly meant that the trial scheduled for January 7, 2019 could not proceed even if a judge were available. Counsel #2 was not removed from the record at that time.

[16] The case was then heard in assignment court in April 2019 and given a new trial date for September 14, 2020. Since a fixed date was assigned, it was to be peremptory on all parties. The plaintiffs later learned of additional direct communications between counsel #2 and the plaintiffs’ treatment providers and brought a second motion to remove counsel #2. This motion was heard in February 2020 and did result in the removal of counsel #2.

[17] The defendant’s current lawyer was appointed on March 18, 2020 and undertook to be ready for the peremptory September 14, 2020 trial date.

[18] Then it is fair to say that the world changed with this once-in-a-lifetime pandemic. A province-wide suspension of court operations was announced on March 13, 2020 subsequently modified from time to time and with regional differences.

[19] The local administrative judge in London recognized that civil jury trials were not going to be occurring in September 2020 and on June 11, 2020, more than three months in advance of trial, advised the parties that the case could not proceed due to the pandemic. This ought to have assisted both parties in not incurring needless expenses preparing for trial.

[20] The trial date of September 14, 2020 was accordingly vacated and a new trial date was set for the week of March 29, 2021. A further pre-trial was conducted on December 3, 2020.

[21] The parties provided some evidence with respect to Ms. Smith’s injuries, although I do not intend to analyze that evidence in detail. However, a brief mention of some facts/allegations will assist in understanding the allegations of prejudice raised on this motion.

[22] Ms. Smith describes the following injuries:

(a) Scalp laceration on the right side above the hair line requiring staples;

(b) Concussion;

(c) Vestibular vertigo, nausea and vomiting;

(d) Constant headaches;

(e) Loss of sense of smell and taste;

(f) Vision—difficulty with tracking;

(g) Cognitive impairments—difficulties with word finding, speech, memory problems

(h) Impaired sleep;

(i) Fatigue

(j) Neck pain;

(k) Bruising to her sternum, knees, hands and wrists (from the seat belt and grasping the wheel)

(l) Mood impairment—increased anxiety and depression, and

(m) Driving anxiety.

[23] Ms. Smith deposes that her concussion symptoms affect her the most and that she has recently been determined by her accident benefits insurer to be entitled to income replacement benefits past the 104 week mark on the basis of suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

[24] The report commissioned by the accident benefits insurer dated September 8, 2020 is provided in the motion material. It was a multi-disciplinary assessment involving an orthopaedic surgeon, a neurologist, a psychiatrist, a vocational assessment and a functional abilities evaluation. Neither the orthopaedic assessor nor the neurologist felt that Ms. Smith met the post 104-week test of disability, with the neurologist concluding that there was no current objective neurologic impairment. The psychiatrist did conclude that Ms. Smith currently suffered a complete inability to engage in any suitable employment.

[25] Counsel for the defendant included in his responding material a psychiatric consultation report dated August 7, 2017 dealing with a hospitalization for suicidal ideation, depression and anxiety following the death of Ms. Smith’s mother. Counsel asks this court to not pre-suppose that the trier of fact will determine that any inability to work was caused by the motor vehicle accident.

[26] Ms. Smith was a high-income earner, in excess of $100,000 annually. She has arguments that she was in line for a promotion and her income could have increased to $125,000 annually. She returned to her employment following the accident in October of 2016, changing jobs in March of 2017 and working until her hospital admission in July of 2017. She has not returned to work since.

[27] Ms. Smith continues to receive income replacement benefits from her accident benefits insurer, long term disability benefits through her insurance available through her employment and Canada Pension Plan Disability benefits. Counsel for the plaintiffs concedes that this is not a case involving economic hardship given that Ms. Smith receives those collateral benefits.

[28] However, Ms. Smith submits that the provisions of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, make any further delay prejudicial to her. First, past loss of income claim is recoverable at 70% of gross income while future income loss is recoverable at 100% (s. 267.5). She submits that each year that this matter is delayed could cost her in excess of $30,000 due to that rule.

[29] Furthermore, the indexed statutory deductible, which increases annually, will result in a potentially greater reduction of her claim for each year that this matter is delayed, unless her non-pecuniary general damages are assessed at more than the amount set out in the regulations at which the deductible no longer applies. That figure also increases annually, making it more difficult for her to obtain an amount that exceeds it.

[30] I note that the 2020 deductible is $39,556.53, increased from 2019’s deductible of $38,818.97, a difference of $737.56. The figure at which there is no deductible in 2020 was $131,854.01, increased from $129,395.49 in 2019, for a difference of $2,458.52. I do not believe that the 2021 figures are yet available. The 2019 and 2020 figures provide some insight into the magnitude of the potential impact of further delay on Ms. Smith’s claim.

[31] Plaintiffs’ counsel also included in their affidavit material, that the current amount of the work-in-progress exceeds 1500 hours in docketed time and the disbursements incurred to the date of the motion are approximately $110,000. These figures are alarming to me even allowing for the adjournment on the eve of trial, a second adjournment and the interlocutory motions, for which costs have already been recovered. The plaintiff is concerned about incurring further expense if this case does not proceed. The amount of time and disbursements is clearly a major barrier to the parties settling this action without a trial.

[32] The parties now estimate that the trial of this action is likely to take three to four weeks, as opposed to the seven-week estimate given in January of 2019.

Leave to Bring this Motion:

[33] During argument both counsel acknowledged the technical requirement that leave is required under rule 48.04 (1) for a party who set a matter down for trial to initiate a motion. While raised in the defendant’s factum, the point was not seriously argued and clearly the pandemic presents a substantial and unexpected change of circumstances that justify granting leave. I do so.

Striking a Jury during COVID-19:

[34] In Cowles v. Balac, (2006) 2006 34916 (ON CA), 83 O.R. (3d) 660 (ONCA), the Ontario Court of Appeal noted that the right to have an action tried by a jury is important and should not be interfered with without just cause or cogent reason. The Court set out the following test for striking a jury notice (at paras. 37-38):

A party moving to strike a 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 which merits the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.

While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

[35] Recently, the Court of Appeal, in Girao v Cunningham, 2020 ONCA 260, stated at para. 171:

While I recognize that 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.

[36] The COVID-19 pandemic has resulted in many motions to strike jury notices. A review of those cases demonstrates that motions judges have weighed many case specific factors in exercising their discretion whether to strike a jury. These include:

(a) Regional or even local differences with respect to the resources available to the court;

(b) Regional differences in how the pandemic has affected the community where the trial is to be conducted;

(c) The date of the incident giving rise to the action;

(d) The time between the motion to strike and the trial date;

(e) The number of times a case has been previously adjourned; and

(f) The specific circumstances of the parties.

[37] The task of the motions judge in each case remains to determine whether justice to the parties will be better served by trying the case with or without a jury.

[38] One line of COVID-19 decisions has approached the issue in a “wait and see” fashion. The ultimate decision whether the jury will be struck has been postponed until such time as there is greater certainty as to whether the case can proceed with a jury. There have been many cases in which the motions judge adopted a “wait and see” approach, including:

• Jiang v. Toronto Transit Commission, 2020 ONSC 5727 (heard Sept. 21, 2020) (Toronto)

• Kranjec v. Green, 2020 ONSC 6910 (heard October 21, 2020) (Central East)

• MacKenzie v. Pallister, 2020 6914 (heard October 21, 2020) (Central East)

• MacDougall v. Sisley, 2020 ONSC 6632 (heard October 23, 2020) (Central East)

• Piette v. Haskins, 2020 ONSC 6633 (heard October 23, 2020) (Central East)

• Saadi v. Silva, 2020 ONSC 6700 (heard October 26, 2020) (Toronto)

• Louis, supra (heard November 2, 2020) (Ottawa)

• Pietsch v. Lyons, 2020 ONSC 7628 (heard November 25, 2020) (London)

[39] Cases in which the jury notice was struck include:

• Louis v. Poitras, 2020 ONSC 5301 (heard Aug. 26, 2020) (Ottawa) (rev’d)

• Coban v. Declare, 2020 ONSC 5580 (heard August 26, 2020) (Ottawa) (aff’d)

• Higashi v. Chiarot, 2020 ONSC 5523 (heard September 1, 2020) (Ottawa)

• Belton v. Spencer, 2020 ONSC 5327 (heard September 4, 2020) (Central South)

• Passero v. Doornkempf, 20 ONSC 6384 (heard September 21, 2020) (Central South)

• Desai v. Labelle, 2020 ONSC 6557 (heard October 13, 2020) (Ottawa)

[40] In Louis v. Poitras, supra, Beaudoin, J., the motions judge, struck the jury after considering the situation in the East Region and the delay that the parties would face if the jury notice remained. Jury trials were not being scheduled at that time in Ottawa, but judge alone trials were known to be available within the following six months. Justice Beaudoin adopted the reasoning of Justice Myers in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186 set out in paras 31 and 32:

31 Proportionality is a vital component of the civil justice system. It is enshrined in Rule 1.04 (1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 as an omnipresent consideration in the assessment and balancing of all procedural issues. Mr. Rachlin argues, with much logical force, that in addition to complexity alone, if it can be shown that a jury trial will take much longer or cost much more than a non-jury trial; or if, because of its added length or just because it is a jury trial, systemically, it will not be held until a much later date, then the use of a jury trial may fail to meet the interests of justice. I agree.

32 The court must react to the realities facing civil litigants and the civil justice system. It is not news to anyone that delays, and the high cost of civil proceedings impair access to justice. The Supreme Court has declared that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.” [3] Systemic issues like the insufficient judicial complement, resource deployment away from civil cases as a result of R. v. Jordan, 2016 SCC 27 and other pervasive funding concerns affect the realities facing civil litigants. The court’s ability to provide long civil jury trials in an expeditious, affordable, proportionate way may be suffering as a result. Where this is so, the systemic realities may impair access to civil justice. 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.

[41] The defendants in Louis appealed to the Divisional Court. After identifying the above noted principles which motions judges must consider in exercising their discretion, the Divisional Court held that Beaudoin J. had exercised his discretion in an arbitrary fashion and granted the appeal. A general assertion of delay was not enough for a motions judge to strike a jury. At paras. 78-79, the Court stated:

[78] The use of “wait and see” in this way demonstrates the willingness of the court to be flexible in its approach to the novel issues the pandemic has presented. It may be that where the overall administration of justice is the concern, this approach will not be appropriate. If the concern becomes the ability of the court to deal with an ever-mounting backlog, delaying the decision may not assist in responding to that growing concern. That is for another case, on another day.

[79] For this day, we follow suit.

[42] On the day I had intended to release this decision, Brown J.A., sitting as a single motions judge on the Court of Appeal, released his decision on a motion to stay the Divisional Court decision in Louis v. Poitras, 2020 ONCA 815.

[43] That was a motion to stay, as opposed to the actual appeal of the Divisional Court decision. Furthermore, I do not interpret Justice Brown’s decision as discarding the “wait and see” approach adopted by many judges on these motions. Instead there is an acknowledgement that Beaudoin J. had a broad discretion to determine whether to strike the jury and that he did so with regards to the evidence before him. This included both the evidence in the case, and with the knowledge of the peculiar situation in Ottawa.

[44] Justice Brown states as follows at para. 21:

Appellate review of the exercise of a judge’s discretion to dispense with a jury is limited: Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 40, leave to appeal refused, [2006] S.C.C.A. No. 496. This is not surprising, given the breadth of discretion afforded to a judge considering a motion to strike out jury notices. To justify appellate intervention, it must be shown that the motion judge’s “discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos, v. Jesshope (1985), 1985 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, leave to appeal refused, [1985] S.C.C.A. No. 93.

[45] Thereafter, Brown J.A. seemingly exhorts motions judges in appropriate cases to strike jury notices in order to address the delay that currently faces the administration of justice. Justice Brown states as follows (at paras 41-43):

[41] That “rather broad discretion” currently is exercised by judges in an environment influenced by two key factors, one external to the court system and one internal to it.

[42] The external factor is the reality of COVID-19’s profound effect on the means by which Ontario courts can continue to offer their services to the public.

[43] The internal factor stems from the Supreme Court of Canada’s description of our court system as one marked by a mind-set of “complacency” and a willingness “to tolerate excessive delays”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 4 and 29. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1S.C.R. 87, the Supreme Court called for a “cultural shift” (Hryniak, at para. 2) and a “change of direction” (Jordan, at para. 5). While the long duration of the pandemic has many actors in the civil justice system desiring to “return back to normal”, one must not forget that the “good old ways” caused unacceptable delays and are the very ways that the Supreme Court in Hryniak and Jordan has charged the court system to discard.

[46] Justice Brown than quotes from Justice Myers, in MacLeod, supra, at para. 32, before concluding at para. 45:

[45] To those realities must now be added the significant impact that the COVID-10 pandemic has had on the operations of Ontario’s courts.

[47] Brown J.A. had earlier heard a motion to stay an Order pending appeal in Belton v. Spencer, 2020 ONCA 623, another decision from a COVID-19 motion to strike a jury notice. In interpreting his decision in Louis not as a repudiation of the “wait and see” approach, but simply as a recognition that a motions judge has a broad discretion, I take comfort in his comments at paras. 75-76, of Belton, where he stated as follows:

[75] …the resources available for civil jury trials vary from region to region in this province. I do not regard the cases referred to by counsel as conflicting in principle. Instead, they reflect the exercise of judicial discretion in differing circumstances. I do not see it to be the role of this court to interfere with or micro-manage the diligent efforts of various Regional Senior Justices of the Superior Court of Justice to juggle and prioritize the allocation of their resources during this extraordinary time.

[76] For these reasons, I conclude that the balance of convenience overwhelmingly favours not granting a stay of the Order and allowing the trial of this far-too-old action to proceed.

[48] The Court of Appeal shall hear a motion for leave, and should leave be granted, an appeal in Louis which may clarify how motions judges should deal with these motions. That decision is likely to be rendered prior to the trial date in this case.

Application to this case:

[49] Counsel for the plaintiffs forcefully argued that further delay of this trial would be antithetical to the principles enunciated by the Supreme Court of Canada in Hryniak. Her arguments pre-dated Brown J.A.’s decision but were prescient of many of his comments. I agree that steps must be taken to improve the provision of timely justice to civil litigants. I disagree that striking the jury notice now accomplishes that goal.

[50] Each case must be decided on its own circumstances.

[51] In Pietsch v. Lyons, supra, another case arising from COVID-19 and in London, but decided prior to the release of the stay decision in Louis, Justice Rady was of the view that the “wait and see” approach was applicable in the circumstances before her. That case involved a trial scheduled for September 2021. She found that it would be premature to strike a jury notice when so much can transpire between now and next September. That case does not offer much guidance to this case, other than to support the “wait and see” approach, given the ten months between motion and trial date.

[52] In the Solanki, supra, decision that I am also releasing today, the trial is scheduled for February 1, 2021. The motor vehicle accident occurred 8 years ago. The case had been set down five years prior. The trial has been adjourned on four occasions, three of which were caused by the unavailability of judges. Importantly, one of the plaintiffs is 70 years old and has very significant health problems. In that case, I was of the view that the “wait and see” approach was not practical. I conditionally struck the jury notice in the hopes that the trial could proceed as scheduled.

[53] The within case falls awkwardly in between the Pietsch case and the Solanki case in terms of timing. I do not have a crystal ball. While I acknowledge that the COVID-19 pandemic has worsened in London I am not yet prepared to assume that three months from now we will be unable to accommodate civil jury trials. Our courtrooms are ready. We have conducted criminal jury trials, involving twice as many jurors as a civil trial, this past fall. Although the trials have required creativity and flexibility, they have not compromised the effective and fair administration of justice.

[54] I am not determining that the jury ought not to ultimately be struck in this case if jury trials cannot be held as of late March 2021. It may well be in the interests of justice by that time to strike the jury notice so that the case can proceed by judge alone. It is simply premature to decide that the only way that this case can proceed as scheduled is by judge alone.

[55] If jury trials are available as of late March 2021, or if for any reason this trial cannot proceed whether it be jury or non-jury, it would not be fair to the defendant to have struck its jury notice for no reason at all.

[56] Counsel for the plaintiffs raised several arguments for striking the jury notice that may prove compelling at the end of the day. I did consider the impact of the 70% of gross rule on Ms. Smith’s income loss claim, the time that has passed since the trial record was filed, the number of times this trial has been adjourned, the date of the underlying accident and the mounting legal expenses. Given my disposition of this motion, I do not wish to impose my views of those arguments on the judge that eventually determines whether the trial proceeds with a jury or by judge-alone.

[57] I will address, however, a few of the plaintiffs’ arguments specifically raised against the “wait and see” approach.

[58] The plaintiffs’ assert that they need to know now whether this is a jury or non-jury trial as it impacts their trial preparation. First of all, the comfort that parties may have in an early determination of the mode of trial ought not to trump the important, albeit not absolute, right of the defendant to a trial by jury. While I accept that there are differences in how jury and non-jury trials would be presented, this case has already been prepared for trial. Preparing for a jury trial is presumably more arduous than preparing for a judge-alone trial. If the jury notice remains, the parties will be, at worst, over-prepared. The jury notice ought not to be struck at this time for that reason.

[59] More importantly, counsel for the plaintiffs has raised the possibility that she may not be willing to conduct a jury trial in late March given her own concerns about COVID-19. Her associate has similar worries. I am satisfied that these are legitimate concerns with respect to the health and welfare of themselves and their dependants. I respect every person’s right to make such choices. I do not believe that the court would require counsel to place themselves in harm’s way.

[60] A trial judge has substantial flexibility in determining trial procedure. Witnesses can appear remotely if necessary. The jury may have to be situated in a different room than counsel. The trial judge has considerable tools to make the trial safe for its participants so long as fairness is maintained for all parties.

[61] I agree with the proposition that litigants are entitled to counsel of their choice but disagree that it be at the expense of the opposing party. I recognize that this trial has been adjourned multiple times. However, if counsel is not prepared to participate in a jury trial in late March, if such trials are deemed safe, a further adjournment is the appropriate remedy. The defendant ought not to lose its jury for that reason in my view.

[62] Finally, plaintiffs’ counsel fears that the “wait and see” approach will result in her clients’ case simply being removed from the trial list, with no opportunity to be heard on whether the jury notice ought to be ultimately struck. She cites that the September 2020 trial was vacated by the local administrative judge without giving her client the chance to present a case for striking the jury and proceeding by judge alone.

[63] I note that London was not conducting civil non-jury trials in September 2020. Thus, having an opportunity to make submissions about striking the jury was unwarranted then. I agree with plaintiffs’ counsel that the “wait and see” approach would be thwarted if this case were simply struck from the civil trial list without affording the plaintiffs an opportunity to revisit this issue. Accordingly, I intend to preserve that right as part of the exercise of my discretion.

Disposition:

[64] I am not prepared to deprive the defendant of his jury notice at this time and in the face of considerable uncertainty as to whether this trial can proceed with a jury, or at all, as scheduled. If I were to strike the jury notice and jury trials are possible in London as of March 29, 2021, I would be depriving the defendant of his important right, without cogent reason.

[65] Similarly, if I strike the jury notice and a judge alone trial cannot proceed for whatever reason on March 29, 2021, the jury will have been needlessly struck.

[66] The plaintiffs have advanced persuasive arguments on this motion such that at the appropriate time it may well be determined that striking the jury notice affords justice to the parties in the circumstances. It is also likely that the Court of Appeal will have provided some guidance on the issue by that time.

[67] The motion to strike the jury notice is accordingly dismissed. However, the plaintiffs shall have leave to renew this motion within 10 days of being advised that London jury trials are not proceeding for the period encompassing March 29, 2021 as a result of COVID-19. Following notification that jury cases are not proceeding and pending the decision of the judge that ultimately hears this motion, the case shall remain on the civil trial list for March 29, 2021.

[68] The parties will not be required to file new motion material but may supplement their motion records with updated written material, relating only to events that transpire since the release of this decision. A date and time for oral arguments will have to be arranged through the trial coordinator’s office.

[69] In my view, this result both preserves the defendant’s right to a jury, if possible, but still provides the plaintiffs an opportunity to have the trial proceed by judge alone if COVID-19 and justice demand it. It is consistent with the approach taken in cases dealing with similar motions, including my own decision in Solanki. In my view, it is also consistent with the comments by Brown, J.A. in Louis and in Belton.

[70] I encourage the parties to resolve the issue of costs on their own, especially given that the issue of whether the jury notice remains has not been finally determined. One consideration would be to leave it to the motions judge that ultimately decides if the case proceeds with or without a jury.

[71] However, if the parties are unable to resolve the issue of costs, the defendant may make written submissions, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within twenty days of the release of this decision. The plaintiffs have ten days from receipt of the defendant’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves

[72] I do not consider myself seized of this motion.

Justice Spencer Nicholson

Date: December 21, 2020