Ozimkowski v. Raymond 2020 ONSC 8092

COURT FILE NO.: 14-59881

DATE: 2020-12-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARGARET OZIMKOWSKI, Plaintiff

AND

LUC RAYMOND, Defendant

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Shawn J. O’Connor for the Plaintiff

Michael J.L. White for the Defendant

HEARD:

ENDORSEMENT

H. J. williams, J.

Overview

1This is another in the expanding collection of motions in which a party seeks to strike a jury notice because of (a) the suspension of most civil jury trials in Ontario due to the COVID-19 pandemic, and (b) the uncertainty over when civil trials with juries will be scheduled in the future.

2As has been the case with most, although not all, of these motions, this one is in the context of a motor vehicle accident action and the plaintiff is the moving party.

3In this case, the plaintiff’s accident took place almost nine years ago, on January 23, 2012. The plaintiff commenced her action two years later, in January 2014.

4The trial was scheduled to be heard by a judge and jury in Ottawa over two weeks beginning June 20, 2020. The pandemic intervened and the trial did not proceed at that time.

5On November 6, 2020, the East Region’s Regional Senior Justice, Calum MacLeod, released a memorandum to lawyers and litigants in Ottawa in which he said that civil jury trials in Ottawa would remain suspended until further notice. In his memorandum, RSJ MacLeod wrote: “There may be some limited capacity for in-person civil jury trials in other centres towards the end of the year, but this will be dependent on circumstances. It is unlikely there will be any capacity for civil jury trials for at least the first six months of next year, but we are continuing to monitor the situation.”

6I heard argument on the motion on December 9, 2020. Counsel appeared before me again briefly on December 14, 2020 to make submissions about two cases that had come to their attention after the December 9, 2020 hearing.

7On December 9, 2020, I informed counsel that, shortly before their appearance that morning, I had communicated with RSJ MacLeod and the Local Administrative Judge for civil cases, Gomery J. As a result of that communication, I understood there was no expectation that dates for civil jury trials in Ottawa would be set during the first six months of 2021. I also understood that a two-week non-jury trial could be scheduled as early as January 4, 2021.

8The plaintiff’s action is to be spoken to at a trial management court on January 27, 2021.

Chronology

9As stated above, the plaintiff’s accident happened on January 23, 2012.

10The plaintiff’s statement of claim was issued January 21, 2014. A statement of defence was served March 14, 2012 and a reply on March 20, 2014.

11Examinations for discovery were conducted in May 2015.

12The defendant added a municipality as a third party in October 2015.

13The third party conducted examinations for discovery of the plaintiff and the defendant in April 2016.

14The plaintiff served experts’ reports in 2016 and early 2017. Defence medical examinations were conducted in September 2017.

15The plaintiff brought a motion for summary judgment on the issue of liability which was heard in June 2018. The motion had first been scheduled for February 2018, but the defendant requested an adjournment to obtain an expert’s report. At a case conference in March 2018, the defendant asked that the summary judgment motion not be permitted to proceed; the defendant’s request was denied.

16The decision in the plaintiff’s summary judgment motion was released in September 2018.

17The action was pre-tried in October 2018. The trial was scheduled for September 8, 2020 for five weeks. The defendant had indicated that it would be appealing the decision in the summary judgment motion. The five-week estimate for the trial assumed that both the issues of liability and damages would be tried.

18The third party claim was dismissed in November 2018, on consent.

19The defendant’s appeal of the decision in the summary judgment motion was heard and dismissed in May 2019.

20In August 2019, the anticipated length of the trial was adjusted to two weeks from five weeks and, on consent, the trial was moved to an earlier date, June 2020.

21In April 2020, the plaintiff served the defendant with CAT (catastrophic injury) reports from the plaintiff’s accident benefits insurer.

22The trial did not proceed in June 2020 as scheduled.

23In July 2020, plaintiff’s counsel informed defendant’s counsel that he had been instructed to request a trial by a judge alone, instead of with a jury. Defendant’s counsel replied the same day that the defendant’s instructions remained to proceed with a jury.

24The parties attended a case conference with Master Fortier on August 17, 2020 at which a timetable was set for the exchange of materials for this motion to strike the jury notice.

25On August 27, 2020, plaintiff’s counsel served productions, which included the clinical notes and records of an orthopaedic surgeon.

26A further examination for discovery of the plaintiff was conducted in September 2020.

27In November 2020, the parties’ lawyers discussed whether they could agree to strike the jury notice on certain terms. They were unable to reach an agreement.

28The plaintiff’s action was added to the list for a trial management court December 16, 2020 but was then transferred to the January 27, 2021 list. The defendant’s lawyer said that, after receiving notice of the December 16, 2020 date, he asked the court’s administration about alternative dates, because of a scheduling conflict. The action was then moved to the January 27, 2021 list. The defendant’s lawyer said he had never asked for the trial management court date to be changed and that, if necessary, he would have been able to make himself available on December 16, 2020.

The positions of the parties

The plaintiff

29The plaintiff argues that the need to set a trial date in this action is more important than the defendant’s right to a trial with a jury.

30The plaintiff requests an order striking the jury notice, with leave to the defendant to revisit the issue, should circumstances change.

31The plaintiff argues that such an order would enable a trial date to be set at the January 27, 2021 trial management conference but, if civil jury trials have resumed by the time the trial is to begin, the defendant could ask for the action to be placed on the jury trial list.

32The plaintiff argues that she is individually prejudiced by the delay because the Insurance Act, R.S.O. 1990, c. I.8, limits her recovery to pre-trial lost income to 70 per cent of her actual loss and because both the threshold for and the amount of the deductible for non-pecuniary damages increase each year.

33The plaintiff argues that delay increases the cost of litigation and makes it impossible for litigants to plan their lives.

34The plaintiff also argues that delay is not in the interest of the justice system, which should provide an adjudication of all cases in an accessible, timely and affordable manner.

The defendant

35The defendant argues that the plaintiff’s motion is premature because the action is not ready for trial.

36The defendant argues that the right to a trial with a jury is a substantive right, that plaintiff has not met the evidentiary onus on a party seeking to strike a jury notice and that, in this case, a “wait and see” approach would balance the interests of the parties.

Analysis

Should the plaintiff have leave to bring this motion?

37The plaintiff requires leave to bring this motion because her action has been set down for trial.

38On consent, leave shall be granted.

The law

39The statutory right to a civil jury trial under s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is a qualified, not an absolute, statutory right. (Louis v. Poitras, 2020 ONCA 815, at para. 67; Belton v. Spencer, 2020 ONCA 623, at para. 26.)

40On motion, the court may order that issues of fact be tried, or damages assessed, or both, without a jury. (Courts of Justice Act, R.S.O 1990, c. C-43, s. 108(3).)

41Rule 47.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a judge may hear a motion to strike out a jury notice on the ground that the action ought to be tried without a jury.

42In their first appearance before me on December 9, 2020, counsel relied on the following decisions in pandemic-related motions to strike jury notices: Belton v. Spencer, supra; Higashi v. Chiarot, 2020 ONSC 5523; Coban v. Declare, 2020 ONSC 5580; Desai v. Labelle, 2020 ONSC 6557; MacDougall v. Sisely, 2020 ONSC 6632; and Louis v. Poitras, 2020 ONSC 6907 (Div. Ct.)

43After the Divisional Court’s decision in Coban v. Declare (2020 ONSC 7537) and the decision in Pietsch v. Lyons, 2020 ONSC 7628 came to their attention, counsel made further submissions on December 14, 2020. Counsel also referred to the December 14, 2020 Notice to the Profession and Public Regarding Court Proceedings, in which Chief Justice Geoffrey B. Morawetz extended the suspension of jury trials in all areas of Ontario, other than Green Zones, until at least January 29, 2021.

44The Court of Appeal’s decision in Louis v. Poitras, 2020 ONCA 815 was released December 15, 2020. Counsel did not make submissions about this decision at the Court of Appeal level, but I am satisfied that the underlying considerations in that decision were ably canvassed during their appearances before me.

45The pandemic-related motions to strike jury notices have involved a balancing of the parties’ interests. These interests include: (a) the prejudice to plaintiffs, who, through no fault of their own, face unanticipated delays in their trial dates; and (b) the prejudice to defendants who wish to preserve their substantive, if not absolute, right to a trial with a jury.

46The particular circumstances of each case must be carefully considered. In Louis v. Poitras, the Court of Appeal agreed with the finding of the motions judge, Beaudoin J., that real and substantial prejudice may arise simply by reason of delay. The Court of Appeal concluded, at para. 33, that delay in obtaining a trial date can, by itself, constitute prejudice and justify striking out a jury notice. The Court of Appeal added that part of the “service guarantee” to the public is that “courts will work to provide the ‘most expeditious…determination of every civil proceeding on its merits’ (emphasis added)”.

Should the jury notice be struck in this case?

47The plaintiff, as the party moving to strike the jury notice, 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 merit the discharge of the jury. In the end, the court must decide whether the moving party has shown that justice to the parties would be better served through a trial with a judge, without a jury. (Cowles v. Balac; 83 O.R. (3d) 600 at para. 37.)

48The plaintiff has been waiting a long time to be able to put her lawsuit behind her; her accident happened almost nine years ago. The march of the plaintiff’s action to a trial date was bogged down somewhat by a third party claim that was subsequently discontinued and by the plaintiff’s successful motion for partial summary judgment which was subsequently appealed, unsuccessfully.

49The plaintiff argues that a delay in the trial of her action costs her money. She argues she is prejudiced by the annual increase in the monetary threshold for a deductible applied to non-pecuniary damages and by the amount of the deductible under the Insurance Act, s. 267.5(8.3) and Court Proceedings for Automobile Accidents That Occur on or after November 1, 1996 (O. Reg. 461/96.), s. 5.1(1). The plaintiff also argues that the passage of time whittles away her claim for income loss, because only 70 per cent of pre-trial income loss is recoverable through the operation of sections 267.5(1)2 and 267.5(1)3 of the Insurance Act. The plaintiff also argues that a delay in the trial of her action increases the cost of the action, creates uncertainty in her life and makes it impossible for her to plan for her future.

50The parties agree, however, that they are not ready for trial. Because of the accident benefits insurer’s CAT reports, which the defendant’s lawyer described as lengthy and complex, the plaintiff requires updated medical reports, an updated actuarial report and an updated loss of future care report. The defendant will then require updated responding reports. The plaintiff also has outstanding undertakings from her September 2020 examination for discovery.

51The parties agree on the steps they will need to take to be ready for trial; they disagree only by a month or two as to how much time they will need to complete the necessary steps. Plaintiff’s counsel estimates they will be ready for trial by April or May 2021; defendant’s counsel submits that June 2021 is a more realistic estimate.

52There is no evidence before the court on this motion as to the availability of the experts who will be preparing the updated reports or whether any such reports have been promised by a certain date. There is also no indication that counsel have agreed to a timetable for the exchange of reports and the provision of answers to undertakings.

53There are too many unknowns at present to enable me to conduct the required balancing exercise between the prejudice to the plaintiff if the jury notice is not struck and the defendant’s substantive, if not absolute, right to a trial with a jury. While it appears likely to me that the action would proceed to trial earlier without a jury, I am unable to determine whether this would actually be the case and, if so, how much earlier the trial would be heard if by a judge alone.

54The parties are to appear at a trial management court on January 27, 2021. At that trial management court, judge-alone trial dates in early 2021 are expected to be on offer. However, if I were to strike the jury notice, the parties would be unable to lay claim to a date in early 2021 because they will not be ready for trial in time. As I noted above, plaintiff’s counsel expects they will be ready by April or May and defendant’s counsel says June is more likely.

55Depending on how long it takes the parties to become trial-ready, the state of the pandemic in Ottawa in 2021, the number of actions competing for spring 2021 trial dates and the settlement rates of those cases, it is possible that striking the jury notice would make little or even no difference to the timing of the trial in this case. What we know about civil jury trials at present is that dates for these trials in Ottawa will not be set in the first six months of 2021.

56I cannot weigh the prejudice to a plaintiff who argues her trial will be delayed because of a defendant’s jury notice, when I am unable to quantify or even estimate the length of the delay.

57The plaintiff argues that she is prejudiced by any delay. Almost nine years have passed since her accident took place. Although she points to the annual increase in the deductible threshold and the deductible for non-pecuniary damages in the Insurance Act, the numbers will remain the same whether her action is tried in June of 2021 or December of 2021. Further, I agree with the observation of Rady J. at para. 24 of Pietsch v. Lyons, that these annual increases are matched or offset by an increase in the cap on non-pecuniary general damages. Although the plaintiff argues that she is prejudiced by the limit on pre-trial loss of income damages, she offered no evidence that, in her case, this limit translates into a quantifiable loss. The plaintiff’s case is also different from some of the decisions in which jury notices have been struck. For example, there was no evidence that the plaintiff is not continuing to receive accident benefits. The plaintiff’s case also is not one in which there had been one or more pre-pandemic adjournments of the trial date.

58I find that the plaintiff has not met the burden she bears to demonstrate that justice to the parties would be better served if the jury notice were struck at this time. For the reasons set out above, I find that the plaintiff’s motion is premature.

Disposition

59The plaintiffs’ motion to strike the jury notice is dismissed, without prejudice to the plaintiff’s right to bring a similar motion after the January 27, 2021 trial management court, depending on the circumstances at the time.

Costs

60The parties agreed on $4,000.00 in partial indemnity costs. However, the defendant said there may be factors to persuade me to order costs on a substantial indemnity basis.

61If the parties cannot agree on costs, the defendant shall deliver written submissions of no more than three pages in length within three weeks of the date of this endorsement. The plaintiff shall then deliver responding submissions, also of no more than three pages in length, within two weeks of receipt of the defendant’s submissions. The defendant may deliver reply submissions of no more than two pages in length within one week of receipt of the plaintiff’s submissions.