COURT FILE NO.: 3411/14

DATE: 20201221

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chandrabala Solanki and Sanjay Solanki, Plaintiffs

AND:

Beth Anne Reilly, Defendant

BEFORE: Justice S. Nicholson

COUNSEL: J. Mays and D. Wozniak, for the Plaintiffs

K. Dickson, for the Defendant

HEARD: December 16, 2020

Endorsement

[1] This is one of the many motions brought during the COVID-19 pandemic to strike a jury notice in order to preserve a trial date jeopardized if the jury notice remains.

[2] My decision on the same issue in Smith v. Muir, ONSC 8030 was also released on this date.

[3] The trial in this case is currently scheduled to commence on February 1, 2021, with a jury, in London.

[4] Prior to hearing the motion, I released to counsel a memo indicating the COVID-19 related facts of which I would take judicial notice, as follows:

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 “red” zone. (Since the hearing of the motion, it has been announced that Ontario will enter a province wide lockdown for 28 days commencing December 26^th).

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, although vaccinations have begun.

[5] Furthermore, after consulting the local administrative judge, I provided the following information about the current state of court operations in London:

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 did previously.

2. The COVID 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 has 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, 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, 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 the spring of 2021. The judicial resources are in place to do so. Having said that, we have now determined that no civil jury trials will take place in January 2021.

9. From an administrative perspective, there may be no advantage to getting called to trial by being a non-jury versus a jury trial. 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 more difficult to accommodate a longer trial.

Background:

[6] This case arises out of a motor vehicle accident that occurred on December 25, 2012. The statement of claim was issued on May 30, 2014. The defendant filed a jury notice with her statement of defence. The trial record was filed on December 4, 2015 and the matter was scheduled for a four-week trial commencing October 2, 2017. However, the trial was adjourned due to a material change in one of the plaintiff’s employment situation.

[7] The trial was then rescheduled for October 2018. It was not reached during that sitting and traversed to the trial running list commencing September 30, 2019. Once again, the trial was not reached and was rescheduled to commence on September 28, 2020. Thus, it has been adjourned on four occasions, only once at the behest of the parties.

[8] COVID-19 caused all the civil jury trials scheduled for the spring and fall of 2020 in London to be postponed. The trial in this matter was rescheduled to its current date of February 1, 2021.

[9] A brief discussion of the facts of the case is required to understand the parties’ arguments in favour of striking or retaining the jury notice. In reciting the evidence, I am not making any findings of its veracity.

[10] The plaintiffs are mother and son. Ms. Solanki was 62 years of age at the time of the accident and is now 70. Her son was 38 years old when the accident happened and is now 46.

[11] Mr. Solanki has advanced an income loss claim. He was the sole breadwinner for his family, supporting his wife, two children and his parents. He initially requested a demotion at work as a result of his alleged injuries from the collision. He left work in 2018 and has not returned to work since. His injuries are described in the motion record as involving chronic pain and psychological disorders. Mr. Solanki reportedly has obtained financial assistance through loans from his extended family. His children, now 16 and 12 years old, are described as financially unable to participate in extra-curricular activities.

[12] During oral argument, counsel for the plaintiffs emphasized that Mr. Solanki’s income loss claim is subject to section 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, which limits past income loss claims to 70% of gross income. There are financial consequences from delay. I have no specific evidence about the magnitude of that loss.

[13] Ms. Solanki’s claim is focused on her damages for pain and suffering, past attendant care services provided by her daughter-in-law and others, as well as loss of housekeeping and home maintenance capabilities.

[14] Since approximately 2017, Ms. Solanki has suffered from several health complications unrelated to the motor vehicle accident. In September 2020, she was hospitalized for urosepsis and bacteremia, as well as perforation of her gallbladder. Furthermore, she has moderate to severely reduced systolic function and is at high risk for a further heart attack. She is described as having type 2 diabetes, heart disease, cognitive decline, a previous stroke and hypertension. The plaintiffs have appended a report from a treating physician highlighting her medical conditions.

[15] Plaintiffs’ counsel has included some limited evidence with respect to settlement negotiations. Suffice it to say that the case appears unlikely to resolve without a trial.

[16] The plaintiffs estimate that with a jury this is a four-week trial and assert that it will be shorter if tried by a judge alone.

[17] The defendant did not file any responding motion material. No prejudice is accordingly alleged.

Leave to Bring this Motion:

[18] Counsel for the plaintiffs acknowledged that leave is required under rule 48.04 (1) for a party who set a matter down for trial to initiate a motion. The defendant took no issue with the plaintiffs’ request for leave. Clearly the pandemic presents a substantial and unexpected change of circumstances that justify granting leave. Leave is granted.

Striking a Jury during COVID-19:

[19] The Ontario Court of Appeal, in Cowles v. Balac, (2006) 2006 34916 (ON CA), 83 O.R. (3d) 660, 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.

[20] In Girao v Cunningham, 2020 ONCA 260, the Court of Appeal 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.

[21] There have been many recent motions to strike jury notices due to COVID-19. A review of those cases demonstrates that there are many factors considered by the motions judge in exercising his or her 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.

[22] In each case, the role of the motions judge is to determine whether justice to the parties will be better served by trying the case with or without a jury.

[23] 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 trial 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 v. Poitras, 2020 ONSC 6907 (Div. Ct.) (heard November 2, 2020) (Ottawa)

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

[24] 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)

[25] In Louis v. Poitras, supra, 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. Beaudoin, J., 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.

[26] The defendants in Louis appealed to the Divisional Court (Louis v. Poitras, 2020 ONSC 6907). 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. In the Court’s view, 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.

[27] On the day I had intended to release my decision in Smith v. Muir, and the day prior to the hearing of the within motion, 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’s ruling in Louis v. Poitras, 2020 ONCA 815. The plaintiffs on this motion rely heavily on Justice Brown’s reasons.

[28] One must recognize that Brown J.A. was hearing a motion to stay, as opposed to the actual appeal of the Divisional Court decision. Furthermore, I do not see Brown J.A., as rejecting the “wait and see” approach adopted by many courts during the pandemic. Instead, on my reading of his reasons, there is simply a recognition that not only did Beaudoin J. have the broad discretion to strike the jury, but that he did so with regards to the evidence before him. This included not only the evidence in the case, but with knowledge of the peculiar situation in Ottawa at that time.

[29] 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.

[30] Thereafter, Brown J.A. encourages motions judges, should the facts justify it, to strike jury notices in order to avoid contributing to the delay that has beset 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.

[31] 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.

[32] 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 an acknowledgement of the broad discretion conferred on a motions judge in these cases, 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.

[33] Brown J.A. granted a stay in Louis, and there is to be a motion for leave to appeal. Should leave be granted, the Court of Appeal will likely clarify how motions judges should deal with these motions. Unfortunately, the parties before me cannot wait for that decision.

Application to this case:

[34] I remain of the view that each case must be decided on its own circumstances.

[35] The only other decision in a COVID-19 related motion to strike a jury from London is Pietsch v. Lyons, supra, decided by Rady, J, prior to the release of the stay decision in Louis. Justice Rady was of the view that the “wait and see” approach espoused by the Divisional Court made the most sense 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. Accordingly, that case does not offer much guidance to this case, other than to support the “wait and see” approach.

[36] In the within case, London’s local administrative judge has already cancelled jury trials for January 2021. London is now in the “red” zone and it is now being reported that there will be a province wide lockdown commencing on December 26^th and lasting 28 days While the London courthouse facilities have been retrofitted, I am prepared to conclude that a civil jury trial will not realistically occur on February 1, 2021, and it is unlikely to occur shortly thereafter.

[37] The eight-year anniversary of this accident is upon us. The matter was set down for trial on December 4, 2015, over five years ago. The trial has been postponed on four occasions, three of which are not the fault of either party. It is time for this case to conclude, if possible.

[38] Beaudoin, J., in Louis, refrained from basing his decision on the fact that the plaintiff’s past income loss was awarded on a 70% of gross basis. Brown, J.A., in analyzing irreparable harm in the context of the stay motion, did describe that as a “non-compensable loss”.

[39] The legislature, as part of the trade-off for accident benefits and lower automobile insurance premiums, enacted s. 267.5 of the Insurance Act. The application of that rule may be a consideration for a motions judge in determining whether to strike a jury to expedite a trial, depending upon the facts of the case.

[40] I have no evidence of Mr. Solanki’s income. I do not know what the annual impact of that rule is on his claim. Accordingly, it is difficult to base my decision on that factor. However, there is evidence before me of financial hardship. Mr. Solanki has not worked since 2018. Since that time, the trial has been postponed multiple times. Mr. Solanki’s financial situation is a consideration in favour of striking the jury.

[41] The primary factor in my decision is Ms. Solanki’s age and health. She is now 70 years old, and her health is failing. The medical report appended to the record demonstrates a plethora of conditions that militate against further postponing a trial. Any meaningful access to justice from her perspective is fast eroding.

[42] In Coban, supra, the plaintiff was rendered a paraplegic and had immediate future care costs needs. His accident benefits were being depleted. Beaudoin, J., was justifiably concerned about the impact a delay would have on the plaintiff’s ability to fund his medical needs and struck the jury. Leave to appeal was denied by the Divisional Court (Coban v. Declare, 2020 ONSC 7537).

[43] While Ms. Solanki’s injuries do not place her in the same position as Mr. Coban, I find that her circumstances, like his, justify proceeding without a jury if it will expedite the trial.

[44] Counsel for the defendant argues that rather than strike the jury, the case can be put off until later in 2021 when jury trials can safely resume. The problem with that argument is that the pandemic has created a backlog of civil cases, along with at least the usual number of criminal and family cases. There is no guarantee when this trial will proceed, if it does not go ahead as scheduled in February.

[45] In a different context, but during the pandemic, that argument was specifically rejected by the Court of Appeal in Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244, where Paciocco, J.A., stated at para. 7:

Moreover, it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated.

[46] The difficulty is that there remains substantial uncertainty in London, regardless of COVID-19, whether this case will be reached even if the jury notice is struck. If for any reason, a non-jury trial cannot be heard in early February and the trial must be adjourned, it would be unfair for the defendant to have lost her substantive right to a jury, ultimately for no reason at all.

[47] The “wait and see” approach is attractive given its flexibility, but with the trial only five weeks away, it is no longer practical in this case. A motions judge is given a broad discretion on these motions. In my opinion, rule 1.04, which mandates that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits, provides a judge wide latitude to craft a novel solution when appropriate. Furthermore, this once in a lifetime pandemic justifies a creative approach.

[48] I do not read rule 47.02 as mandating a binary choice, that a judge either strike the jury notice or leave it in place. In my view, there is a middle ground which is consistent with rule 1.04, the principles enunciated in Hyrniak and Jordan as well as the challenge that COVID-19 currently poses.

[49] Accordingly, I hereby Order as follows:

1. The jury notice filed by the defendant shall be conditionally struck so that this trial will proceed as a non-jury trial, unless London is conducting jury trials when this case is called to trial;

2. If a judge-alone trial cannot be reached for any reason and the matter is traversed, then the defendant’s jury notice is automatically reinstated, without the need for a further motion;

3. This is without prejudice to the plaintiffs’ right to bring a further motion to strike the revived jury notice if the February 2021 non-jury trial does not proceed.

[50] Accordingly, the jury notice, in the context of the pandemic, will not once again prevent the plaintiffs from having their day in court. However, if the non-jury trial is unable to proceed, the defendant regains its right to a jury trial in the future.

[51] This conditional striking of the jury is necessary specifically due to Ms. Solanki’s medical situation, the length of time the case has taken to get to trial, the number of times it has been adjourned and, most importantly, the COVID-19 pandemic.

[52] If the parties are unable to resolve the issue of costs, the plaintiffs 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 defendant has ten days from receipt of the plaintiffs’ 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.

Justice Spencer Nicholson

Date: December 21, 2020