Court File and Parties
COURT FILE NO.: CV-18-75765 DATE: 2021-02-22 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WAEL MUSA, Plaintiff AND CARLETON CONDOMINIUM CORPORATION NO. 255 and 666981 CANADA INC. c.o.b. as EXACT POST OTTAWA INC., Defendants
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Brenda Hollingsworth, for the Plaintiff Douglas Treilhard, for the Defendants
HEARD: February 16, 2021
Endorsement
Overview
[1] The plaintiff brings a motion to strike the jury notice delivered by the defendants.
[2] This is a slip and fall case. The parties agreed on damages; they agreed in January 2020 on $65,000 plus interests. The remaining issue for trial is liability (whether that amount is payable and by whom).
[3] A ten-day judge and jury trial was scheduled to start on June 15, 2020. The parties were ready. However, because of the ongoing COVID-19 pandemic, many things changed in March 2020. Initially, all trials were adjourned. As soon as was possible, judge alone civil trials resumed, and in Ottawa, civil jury trials have not yet recommenced and it is not presently known when they will.
[4] As a result, the plaintiff brings this motion to strike the jury notice in order to proceed more expeditiously to a judge alone trial. The defendants strongly oppose the motion, arguing that, in the circumstances of this case, the test to strike a jury notice has not been met and arguing as well the importance of civil jury trials as factors to consider when assessing what is in the interests of justice.
Factual Background
[5] The plaintiff was injured in a slip-and-fall incident on December 5, 2016. He commenced this action by statement of claim on March 7, 2018.
[6] The defendants are the owner of the premises where the incident took place and the independent contractor retained to clear snow and ice from those premises. They are being defended and indemnified by their liability insurer and represented by the same lawyer.
[7] The defendants delivered a notice of intent to defend and jury notice on April 9, 2018.
[8] On September 4, 2018, the plaintiff was examined for discovery, as was a representative of 6669981 Canada Inc. On October 23, 2018, a representative of Carleton Condominium Corporation No. 255 was examined for discovery.
[9] The plaintiff served a trial record on May 7, 2019 and a mediation was held on May 14, 2019.
[10] By order of Mr. Justice MacLeod dated September 25, 2019, a pre-trial conference was scheduled for April 7, 2020 and a ten-day judge and jury trial was scheduled to commence on June 15, 2020.
[11] When one considers the above, although its always possible to do better, one must admit that things proceeded relatively effectively as this matter was scheduled to proceed to trial within about two years after the action was started. There was a thirteen months delay between when the action was set down for trial by the plaintiff in May 2019 and when a jury trial was available to the court and the parties in June 2020.
[12] The parties continued to work together in order to proceed efficiently, and the issue of damages was settled on January 28, 2020, such that liability (including contributory negligence, if any, and apportionment) is the only issue that remains to be determined at trial. The plaintiff’s total damages were agreed to be $65,000. Of the total amount, $50,000 was specified to be on account of general damages. As provided by s. 128 (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA) and rule 53.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), pre-judgment interest at the rate of five per cent continues to run on general damages until the date of judgment (if any).
[13] All parties were ready to proceed to trial as scheduled on June 15, 2020. However, as a result of the COVID-19 pandemic, the trial was adjourned indefinitely on April 3, 2020.
[14] On September 1, 2020, trials by judge alone resumed in Ottawa using remote technology. Trials by judge alone, primarily using remote technology, have since remained available in Ottawa. Criminal, family, and civil trials have been heard. However, no civil jury trial has been heard in Ottawa since the start of the pandemic, and it is still unknown when they will resume. Parties (including accused in criminal matters), lawyers, and judges are finding creative ways to proceed to trial expeditiously.
[15] On October 7, 2020, a pre-trial conference was held. Because of the settlement of damages, the time for trial was shortened to five days with a jury, or about four days without a jury, and the plaintiff was given leave to bring this motion to strike the jury notice. Dates for a jury trial could however not be given to the parties.
[16] On November 18, 2020, the parties attended Trial Management Court (“TMC”) and Justice Gomery ordered that “[t]he case is adjourned to trial management court in March 2021 or, if no decision has yet been made on the plaintiff’s pending motion, to the next TMC after a decision has been issued.”
[17] There is presently no timeline for the resumption of civil jury trials in Ottawa. On or about January 13, 2021, the worsening pandemic prompted the declaration of a provincewide State of Emergency. In response, on January 13, 2021, Chief Justice Morawetz extended the provincewide suspension of all jury trials until May 3, 2021 at the earliest.
[18] As I explained to counsel during the hearing of this motion, as a judge sitting in Ottawa and from information obtained just prior to the hearing of this motion from the Ottawa Regional Senior Justice (“RSJ”) and the Local Administrative Judge (“LAJ”) Civil (Justices MacLeod and Gomery), I am informed and aware of certain administrative facts affecting the local scheduling of trials and jury trials. I am informed by RSJ MacLeod and LAJ Gomery that there is no likelihood of any new civil jury trials being scheduled or heard in Ottawa in 2021. I am informed by LAJ Gomery and RSJ MacLeod that it is presently unknown when civil jury trials will resume in Ottawa because we have a limited number of courtrooms that can accommodate a jury trial and because priority will have to be given to criminal trials and to civil jury trials already scheduled to be heard at such available time. I am also informed by them that, by opposition, a five-day judge alone civil trial could be heard either before the summer 2021, or during the fall 2021. Justice Gomery informed me that no dates in 2021 are being provided for civil jury trials and that she is very confident that at upcoming TMC judge alone civil trial dates will remain available certainly for the second half of this year. Finally, I am informed by them that Chief Justice Morawetz’s most recent Notice to the Profession, dated January 13, 2021, which advises that “the suspension of jury trials will be extended until May 3, 2021 at the earliest” relates, in Ottawa, to criminal jury trials. Civil jury trials will not be heard in Ottawa in 2021 and we do not presently know when they will be heard in Ottawa. Given the source of the information, I consider such facts sufficiently accurate to justify that I take judicial notice of them. Indeed, as indicated recently by the Court of Appeal, I do not know who would be better positioned to appreciate the circumstances affecting local scheduling of civil jury trials than the Ottawa RSJ and the LAJ Civil.
Issue
[19] The issue on this motion is whether the defendants’ jury notice should be struck. Simply put, the resolution of this issue involves an exercise of discretionary by the motion judge that consists of considering all relevant circumstances to determine what, in the interests of justice, is best, recognizing however that the right to a jury trial in Ontario is a substantive right that should not be lightly interfered with unless there is just cause or cogent reasons to do so.
[20] The plaintiff argues prejudice as a result of delay and as a result of ongoing uncertainty caused by the COVID-19 pandemic. As an aside, the plaintiff argues the witnesses’ fading memory, but this was not pushed when the motion was argued. This is really all about delay and uncertainty. The plaintiff argues that civil jury trials are not proceeding in Ottawa, that it is unknown when they will resume, and that requiring this action to proceed before a jury creates real and substantial prejudice in the form of delay and unjustifiable uncertainty.
[21] The defendants argue that there is no evidence of prejudice and that when considering what is just, the Court must appropriately balance the many advantages of a jury trial which would obviously be lost if this matter is ordered to be heard by a judge alone.
[22] They argue that recent decisions focusing on the pandemic erroneously rely on systemic delay as a reason for striking a jury notice. They argue that the established factors for striking a jury notice are about the trial procedure best suited to the merits of the particular case, and that systemic delay has nothing to do with the trial procedure best suited to the merits of the particular case. They argue that although there are no doubt logistical challenges associated with civil jury trials in the context of a pandemic—“those are challenges that can be overcome and that the executive and the courts are legally obliged to overcome”, that to hold otherwise would be to countenance the de facto abolition of civil jury trials by operation of the failure or refusal of the government and the courts to provide them—notwithstanding their statutory obligation to do so.
[23] They also argue the absence of a proper evidentiary record. They allege that earlier decisions relied on some combination of general public knowledge about the existence of a pandemic, public announcements by the court regarding suspension of jury trials, and private communications by court officials to the parties or to the motion judge regarding the future prospects of scheduling a jury trial, arguing that this is not evidence given under oath and subject to cross-examination challenging why appropriate facilities could not be arranged to accommodate civil jury trials.
[24] They also argue that pandemic decisions failed to consider the prejudice associated with striking the jury notice. Specifically, they cite Brown J.A. in Louis v. Poitras, 2020 ONCA 815, at paras. 68-69, and provide information to answer the question he asks:
At present, the debate about what loss a party suffers by having its jury notice struck is carried out largely by resorting to labels … Cases variously describe the right to a jury trial under CJA s. 108 as fundamental, substantive, statutory, qualified, or procedural. Such labels add little precision to the analysis required where a party opposes its selection of a civil trial by a jury. By their nature, civil jury trials take longer than civil judge-alone trials and, since they take longer, the parties incur more legal expenses. What goes unexplained is what legitimate benefit a party seeking a civil jury trial obtains that it would not obtain in a trial before a judge alone.
…The appellant has not explained, in specific functional terms, what litigation disadvantage she might suffer if her rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury.
[25] To answer the above question, the defendants cite early commentaries, some going back to 1768 and 1865, about the benefits of civil jury trials. They cite jurists and argue that juries are superior to judges as finders of fact, and that juries ensure rigour and the efficacy of the law of evidence because they do not consider inadmissible evidence. By way of example, the defendants will oppose the admissibility of the plaintiff’s expert opinion on liability and would prefer for the trier of fact not to have seen the impugned report. They argue also that juries preserve the independence of the bar because members of the bar do not have to tailor their arguments to suit the known inclinations of an individual judge. They argue that community participation encourages public respect for the law and for the judiciary by increasing both the perception and the reality of impartial justice. They argue that anti-jury advocates have published articles arguing that civil jury trials should be abolished because doing so would allow judges, sitting alone, to inflate damages by relying on irrelevant considerations.
[26] Finally, they argue that the plaintiff has proven no prejudice, that this action is not yet three years old, that the court will presumably be in a position to set a trial date at the next trial management court in March 2021, that the plaintiff does not propose to tender any fact evidence beyond his own testimony, that his recollection of events has already been given under oath at his examination for discovery, that there is no concern here about the value of the plaintiff’s claim diminishing over time or the plaintiff requiring a judgment to fund ongoing medical care, and that a delay in judgment (if any) is arguably a net benefit to the plaintiff, given that five per cent interest will continue to run on his general damages in the interim likely exceeds any return that he might have hoped to gain from investing the money. They also argue that the interests of the parties and of the administration of justice therefore favour the trial of this action by a jury.
Applicable Law and Analysis
[27] In a civil action, the court retains the discretion to strike a jury notice. The CJA permits the court, on motion, to order that the issues of fact be tried without a jury.
[28] The test to be met was set out by the Ontario Court of Appeal in Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), at paras. 38, leave to appeal refused, [2006] S.C.C.A. No. 496. The overarching concern is to provide justice, and “a court must decide whether the moving party has shown that justice to the parties will be better served” without a jury.
[29] In setting out the test to strike a jury notice, the Court of Appeal in Cowles v. Balac said at paras. 37 and 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 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.
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.
[30] 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.
[31] In considering the importance of jury trials and the many arguments raised by the defendants in support thereof, I am mindful that damages have been settled for $65,000, and that effective January 1, 2020, damages available under simplified procedure, set out under rule 76.02, were doubled to $200,000, and that for most such claims the availability of a jury trial was automatically removed under rule 76.02.01 (see rules 76.02 and 76.02.1 of the Rules). While this is not a simplified procedure action, the agreed upon damages are certainly within that monetary range.
[32] Furthermore, as I indicated in Higashi v. Chiarot, 2020 ONSC 5523, this discretion given to the court to decide if a jury notice should be struck, makes it clear that a jury trial is not an absolute right. The judicial discretion is subject to what is sensible, and in the appropriate case the right to a jury trial may have to yield to practicalities where that is in the interest of justice. Cowles informs us that it is a sensible test of assessing how best to do justice between the parties. The object of a civil trial is to do justice between the parties and, therefore, the court has discretion to decide whether, on the evidence of a specific case, justice requires the party’s action to be tried without a jury.
[33] Indeed, while the right to a civil jury trial should not be lightly interfered with, it is settled law that this right is “far from absolute” and must, where appropriate, “yield to practicality.” (See Girao v. Cunningham, 2020 ONCA 260, 2020 CarswellOnt 5363, at para. 163 and Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241 at para. 119).
[34] The “right” to a civil jury trial is neither a constitutional nor a quasi-constitutional right, but a prima facie procedural entitlement that is not “the unilateral preserve of any one party,” but yields to the overriding interests of justice that it serves (see MacLeod (Litigation guardian of) v. Canadian Road Management Co., 2018 ONSC 2186, 2018 CarswellOnt 5386 at para. 29).
[35] If a jury trial will take much longer than a non-jury trial, or if a jury trial cannot be held until much later, the use of a jury trial may fail to meet the interests of justice. When the court’s ability to provide jury trials expeditiously suffers as a result of systemic realities that impair access to justice, the right to a civil jury trial may have to yield to provide parties with an expeditious and “just” resolution. (See MacLeod, at paras. 31-32).
[36] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 24, 25 and 28, the Supreme Court of Canada emphasized the importance of prompt resolution in allowing people to get on with their lives. If costs or delays become too great, people seek alternatives or simply give up on justice. The principal goal is a fair and just adjudication, but this process is illusory unless it is proportionate, timely and affordable.
[37] As indicated by Justice Brown in Louis v. Poitras, 2020 ONCA 815, at para. 33, providing the most expeditious determination of every civil proceeding on its merit is part of our service guarantee to the public (see also rule 1.04 of the Rules).
[38] In Gervais v. Kapasi, [1995] O.J. No. 3128 (Ont. Ct. Gen. Div.), the court held that where the parties are prepared for trial, an inordinate delay occasioned solely by a jury requirement would not do justice to the parties:
They have come here prepared and ready to go and ready to present their respective cases to a tribunal for decision. I am prepared to allow them to proceed forthwith. The jury is struck.
[39] The leading case on striking a jury notice in the context of COVID-19 is now Louis v. Poitras, 2020 ONSC 5301 (aff’d 2021 ONCA 49). At para. 46, Justice Beaudoin found delay to be determinative. He held that delay, on its own, caused real and substantial prejudice in the context of a global pandemic. He held that a real and substantial prejudice arises simply by reason of indefinite delay, “arising as it does in the context of a global pandemic”:
In my view, nothing turns on Ms. Louis’ claim for damages for past and future loss of income. I find that the real and substantial prejudice arises simply by reason of delay. I recognize that there are few decisions that identify delay as being determinative on its own of the right to trial by jury. Regardless, I find delay to be determinative in the circumstances of this case, arising as it does in the context of a global pandemic.
[40] The Court of Appeal has now twice agreed with Justice Beaudoin.
[41] First, in the decision seeking a stay pending appeal, Justice Brown indicated that delay in obtaining a date for a jury trial can, by itself, constitute prejudice and justify striking out a jury notice because, as indicated above, part of the court’s service guarantee to the public is to provide the most expeditious determination of every civil proceeding on its merit, and delay undermines this (2020 ONCA 815, at para. 33).
[42] As well, in dealing with the merits of the appeal, the Court of Appeal agreed with Justice Brown and Justice Beaudoin that delay could be sufficient (2021 ONCA 49). At paras. 21 to 23 it indicated:
First, the court found that delay alone is not enough to strike a jury notice. According to the Divisional Court, there must also be proof of some additional prejudice before a court is justified in striking a jury notice. Thus, the court concluded, at para. 24, that in these cases, there was “no just cause or cogent reason to interfere with the statutory right of the defendants to seek trial by jury.” I disagree.
The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time of the motion. Accordingly, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits:” Louis v. Poitras, 2020 ONCA 815, at para. 33.
This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.
[43] The Court of Appeal in Poitras, reiterated the principles stated in Hryniak and in the Rules that the parties and the court strive “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[44] In considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. In doing so, as indicated by the Court of Appeal in Poitras at para. 25, it cannot ignore the realities of the current situation.
[45] We are currently in a worldwide pandemic. This forces all of us to find creative ways to proceed expeditiously with all trials, including civil trials. As indicated by the Court of Appeal in Poitras, we all tirelessly strive to keep the civil justice system afloat by doing what is necessary. Local conditions necessarily impact the choices we make in finding effective solutions to ensure the timely delivery of justice.
[46] While we consider the broader interests of the administration of justice and the importance of jury trials, all strenuously and fully argued by the defendants, we cannot ignore the current situation we are in and its impact on the administration of justice (see Poitraa at para. 25).
[47] Here, delay to date has been limited by the parties proceeding very effectively with this matter. However, the trial of this matter has already been delayed by almost one year. Furthermore, the ongoing delay in securing a civil jury trial date is indefinite. We do not currently know when civil jury trials will resume in Ottawa. This creates tremendous uncertainty for the parties. An indefinite delay is not in the interests of justice.
[48] It may very well be that the plaintiff is not financially prejudiced because the bulk of the agreed upon damages are subject to interest at 5%. However, it remains unknown when this matter will proceed to a civil jury trial, and therefore, it is unknown when the plaintiff, if successful, may access these funds. This delay and this uncertainty, in the context of the pandemic and in the circumstances of this matter, are sufficient to constitute just cause when a judge alone trial is, by comparison, readily available.
[49] Consequently, when I balance the advantages and disadvantages of a jury trial and weigh the interests and the arguments of both parties, I find that the defendants’ right to a jury trial is outweighed by the need to provide timely access to justice. Otherwise, the parties are left with indefinite delay, which is not acceptable when we consider this court’s service guarantee as stated by Justice Brown. Overall, in the circumstances of this matter, justice will therefore be better served by the discharge of the jury notice.
Conclusion
[50] Consequently, this motion is granted, and the jury notice is struck. This matter may be scheduled for a three to five-day judge alone trial at the court’s and the parties’ earliest possible convenience.
[51] If the parties are unable to agree on the costs of this motion, then brief written submissions not exceeding three pages are to be provided to my attention as follows: by the plaintiff, by March 5, and by the defendants, by March 12, 2021. If costs submissions are not received by March 12, I will assume that costs of this motion have been agreed upon.
Mr. Justice Pierre E. Roger Released: February 22, 2021