NEWMARKET COURT FILE NO.: CV-18-135217-00 DATE: 20210208 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lerna Francisco Plaintiff – and – Zhang Li and Xiao Fei Defendants

Counsel: Ms. L. Harrison, for the Plaintiff/Moving Party Mr. B. Chambers, for the Defendants/Responding Parties

HEARD: January 20, 2021

REASONS FOR DECISION ON MOTION

Casullo J.:

Overview

[1] The Plaintiff brings this motion for an order striking the defendant’s jury notice pursuant to r. 47.02 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194. Given that the Plaintiff has set the action down for trial, leave of the court is required: r. 48.04(1).

[2] The Defendants concede, appropriately so, that a procedural objection would be unlikely to succeed in light of the COVID-19 pandemic and the current, unprecedented circumstances. The Defendants, however, oppose the relief sought by the Plaintiff.

[3] On January 12, 2021, the Province of Ontario declared a second provincial emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act. Effective January 14, 2021, the government issued a stay-at-home order, mandating that citizens remain at home with certain exceptions. The province’s earlier, colour-coded framework has been suspended, and all of Ontario is in the grey zone.

[4] In view of the stay-at-home order, the Chief Justice of the Ontario Superior Court of Justice issued a Notice to the Profession effective January 13, 2021, suspending jury trials in the province until May 3, 2021, at the earliest.

Scheduling History

[5] This action arises from a motor vehicle collision on August 8, 2013, when the Plaintiff was rear-ended while stopped at a red light. The Statement of Claim was issued on April 10, 2015, and the Statement of Defence and Jury Notice were served on May 22, 2015.

[6] The action was set down for trial in October 2017 in Toronto, and thereafter transferred from Toronto to Newmarket. Following a pre-trial in August 2019, the matter was placed on the May 2020 Trial Sittings list.

[7] As a result of the March 2020 suspension of all in-person court operations, and the suspension of jury selection and civil jury trials until September 2020, the trial was adjourned to be heard during the November 2020 Trial Sittings.

[8] On July 27, 2020 the November 2020 Trial Sittings were again cancelled. The Notice to the Profession stated it was uncertain whether any civil jury trials would be proceeding prior to May 2021.

[9] On September 17, 2020, the Central East Region implemented a supplementary Protocol establishing a Running Civil Trial List as of October 5, 2020, permitting cases which had been pre-tried, and deemed ready for trial by a pre-trial judge, to be added to the Running Civil Trial list.

Positions of the Parties

Plaintiff

[10] The Plaintiff submits the ongoing adjournment of her trial has, and will continue to have, a prejudicial effect on her. For example, in anticipation of the May 2020 trial, the Plaintiff obtained multiple expert reports. The longer the Plaintiff has to wait for her matter to be heard, the more likely it is that she will be required to incur additional costs to have these reports updated.

[11] The delay is also eroding her claim for past income loss/loss of earning capacity. Pursuant to s. 267.5(1) 2 and 267.5(1)3 of the Insurance Act, R.S.O. 1990, c. I.8, 30% of all income loss suffered before the trial of an action is unrecoverable. The collision happened over seven years ago, and further delay will continue to erode her damages. This particular head of damage, if accepted by the trier of fact, represents $18,000-$19,000 per year.

Defendant

[12] The Defendants submit that the right to a jury trial is a substantive right that should not be interfered with lightly.

[13] The Defendants further submit that the Plaintiff has not offered specific evidence of how much longer it would take to obtain a jury trial in Newmarket, as compared to a judge alone trial. Nor has the Plaintiff provided evidence of specific prejudice that would be suffered by such a delay.

[14] The Defendants advocate for a “wait and see” approach, which properly balances the rights of the parties. If it becomes obvious that the resumption of jury trials will be significantly delayed, then the Plaintiff can bring her motion back on, with more “compelling evidence that justice will be served by striking the jury notice”.

Legal Principles

[15] A party moving to strike a 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, 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: Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), at para. 37.

[16] Judges considering motions to strike have a broad discretion to determine how the trial will proceed: Cowles, at para. 38.

[17] Myers J., in MacLeod v. Canadian Road Management, held that on motions to strike, the court must engage in a search for the process that most justly resolves the litigation. In so holding, Myers J. elucidated the following principles:

• Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
• Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.
• The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, at paras. 28 & 30

[18] This approach was most recently affirmed by the Court of Appeal in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, 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.

[19] As the pandemic wears on the number of motions to strike jury notices has been growing. These decisions have resulted in two lines of reasoning: where the motion is successful (Belton v. Spencer, 2020 ONSC 5327, leave to stay refused 2020 ONSC 623; Desai v. Labelle, 2020 ONSC 6557), or the motion is dismissed without prejudice to the moving party bringing the motion back on (Smith et al. v. Muir, 2020 ONSC 8030; MacDougall v. Sisley, 2020 ONSC 663).

[20] The Court of Appeal recently provided welcome guidance on motions to strike jury notices in Louis v. Poitras, 2021 ONCA 49. A brief history is instructive:

• The plaintiff brought a motion to strike the jury notices. In light of COVID-19, Justice Beaudoin granted the plaintiff’s motion to strike the jury so the trial could go forward without a jury (Louis v. Poitras, ONSC 5301);
• The defendants successfully appealed to the Divisional Court, which set aside the motion judge’s order (Louis v. Poitras, ONSC 6907);
• The Court of Appeal granted the plaintiff’s motion to stay the Divisional Court’s order pending appeal (Louis v. Poitras, 2020 ONCA 815).

[21] The unanimous appeal panel, led by Hourigan J.A., identified the crisis facing the justice system in Ontario, which is overwhelmed, and striving to meet the demands it faces from all factions: criminal, family, and civil.

[22] Louis underscores a judge’s inherent discretion to control proceedings:

A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75.

[23] As the Court of Appeal indicated in Louis, there is no “one size fits all” provincial solution as to when jury notices should be struck (at para. 3):

[l]ocal conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.

[24] I have made enquiries of Central East’s Regional Senior Judge, as well as the triage judge in charge of civil litigation. Their message is unequivocal: judges should assume that civil jury trials will not be resuming until November 2021, and even this date is optimistic.

[25] Contrast this with the Running Civil Trial List, where there is a real possibility that a ten-day, judge alone trial could be accommodated well prior to November 2021, depending on the availability of counsel.

[26] While there is concrete evidence of financial loss to the Plaintiff the longer it takes to reach trial, post- Louis I need not base my decision on prejudice alone. As Brown J.A. held in the plaintiff’s stay motion: “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice”: Louis v. Poitras, 2020 ONCA 815, at para. 33.

[27] In Central East, the landscape in respect of jury trials is uncertain. What is certain is that when our courthouses are up and running, and parties are once again competing for scare judicial resources, the imperative will tip the balance in favour of criminal jury trials over civil jury trials.

[28] The eight-year anniversary of the subject collision is nigh. The matter was set down for trial in 2017. But for COVID-19, it would have been heard in May 2020. It has now been adjourned twice. It is patently obvious that the resumption of civil jury trials in Central East Region will be significantly delayed, and if the jury notice is not struck, the Plaintiff’s matter may not be heard until 2022.

Disposition

[29] This is an appropriate situation where justice to the parties will be better served by trying the case without a jury.

[30] Leave is granted to bring this motion, and the relief sought by the Plaintiff is granted. The jury notice is struck, and the matter shall be placed on the Running Civil Trial List, to be heard by a judge sitting without a jury.

Costs

[31] Counsel are encouraged to agree on the costs of the motion. If they are unable to do so, they may arrange a short costs hearing, before me, through the Trial Coordinator. Concise briefs are to be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

CASULLO J.

Released: February 8, 2021