COURT FILE NO.: CV-11-437219 DATE: 20210218
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GILBERT MUDGE JOHNSON Plaintiff
– and –
CHRIS BRIELMAYER and THE CORPORATION OF THE CITY OF MISSISSAUGA Defendants
Counsel: Frank Del Giudice, for the Plaintiff Alon Barda, for the Defendant Chris Brielmayer
Heard (By videoconference): February 16, 2021
A.A. SANFILIPPO J.
Reasons for Decision
Overview
[1] This action, now approaching its tenth year, was scheduled to be heard as a 15-day jury trial in the October 2020 Sittings, which commenced in Toronto Region on October 5, 2020. At a Trial Management Conference conducted on October 1, 2020, this action was rescheduled to commence on February 22, 2021 and then to continue for 20 days, expanded by the parties’ increased estimate of the length of trial.
[2] Shortly after the October 2020 Sittings began, the Province of Ontario returned to increased restrictions due to the increase in COVID-19 cases. On October 9, 2020, the Court suspended jury selection for 28 days, allowing in-person jury trials already in progress to proceed only at the discretion of the trial judge.
[3] The suspension of civil jury trials in Toronto Region was extended incrementally in response to the state of the pandemic in Toronto, first to November 16, 2020; then to November 30, 2020; January 24, 2021; and January 29, 2021. Most recently, on January 13, 2021, the Court suspended civil jury trials until May 3, 2021, “at the earliest”, further to the Province of Ontario’s declaration of a provincial emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. This most recent extension of the suspension of civil jury trials meant that the trial in this action could not be conducted with a jury on its scheduled date of February 22, 2021.
[4] After the issuance of the Court’s January 13, 2021 Notice to the Profession Regarding Court Proceedings, further suspending civil jury trials, the Plaintiff requested clarification from the Court regarding whether the Court could hear the 20-day trial in this action on February 22, 2021 as a virtual trial conducted by judge alone. The Court advised the parties that the scheduled trial date of February 22, 2021 was available for this action to proceed to trial for 20 days, as a non-jury trial.
[5] The Plaintiff brought this motion on an urgent basis for leave to bring a motion after setting this action down for trial, and to strike the Defendant’s jury notice. After hearing the motion, I granted leave for the Plaintiff to bring this motion, and I granted the Plaintiff’s motion to strike the Defendant’s jury notice so that this action can proceed to trial, non-jury, commencing on its scheduled date of February 22, 2021.
[6] I advised the parties that the reasons for my decision would follow. These are my reasons.
I. This Action
[7] Over 11 years ago, on November 2, 2009, the Plaintiff, Gilbert Mudge Johnson, was involved in a motor vehicle collision with the Defendant, Chris Brielmayer. Mr. Johnson claimed that he was operating his motor vehicle eastbound on Riverspray Crescent, near its intersection with Runningbrook Drive, in the City of Mississauga, when he proceeded to make a right hand turn onto Runningbrook Drive. Mr. Johnson alleged that Mr. Brielmayer was operating his motor vehicle southbound on Runningbrook Drive and collided with the rear of Mr. Johnson’s motor vehicle.
[8] Mr. Johnson initiated this action on October 14, 2011, naming Mr. Brielmayer as a Defendant. Mr. Johnson claimed that Mr. Brielmayer caused the motor vehicle accident and thereby caused Mr. Johnson serious and permanent physical and psychological injuries. Mr. Brielmayer defended this action by delivery of a statement of defence on April 27, 2012 together with a Jury Notice. Mr. Brielmayer denies that he is liable to the Plaintiff, and denies that the Plaintiff has suffered damages or, alternatively, denies that the Plaintiff has suffered damages that meet the threshold set out in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.
[9] Mr. Johnson also sued the City of Mississauga, but these claims were dismissed. Although there are two named defendants, I will refer to Mr. Brielmayer as “the Defendant”, considering that the City of Mississauga is no longer involved in this action.
[10] The evidence filed on this Motion showed that this action has had a long and involved history:
(a) The examinations for discovery of all parties were completed on July 31 and August 1, 2013;
(b) On April 22, 2014, Master Glustein, as he then was, ordered, on consent, that this action not be administratively dismissed while the parties adhere to a timetable that required that the Plaintiff set this action down for trial by April 24, 2015;
(c) As the Plaintiff did not set this action down for trial by April 24, 2015, this action was administratively dismissed by the Registrar on April 27, 2015;
(d) On June 6, 2016, Master Short set aside the administrative dismissal and ordered that the Plaintiff set this action down for trial by July 6, 2016. Master Short also ordered, on consent, the dismissal of this action as against the City of Mississauga;
(e) The Plaintiff delivered his Trial Record on June 13, 2016;
(f) On October 23, 2017, the parties attended at Short Trial Scheduling Court to schedule the trial date, and the action was put over to the Long Trial Scheduling Court in January 2018. This action was inadvertently struck off the trial list, but was restored, unopposed, to the Long Trial List by Order of Master Graham dated May 14, 2018;
(g) On October 17, 2018, Regional Senior Justice S.E. Firestone scheduled the Pre-Trial Conference in this action for July 15, 2020 and scheduled the trial to proceed as a 15-day jury trial during the October 2020 Sittings.
[11] The October 2020 Jury Sittings in Toronto Region were scheduled to initiate on October 5, 2020. On October 1, 2020, this action proceeded to a Trial Management Conference before Justice G.R. Dow. This action was not capable of being heard during the October 2020 Jury Sittings due to the parties’ submission that it would take more than the 15 days allotted. The Trial Management showed that the trial of this action would take 19.5 days: 14 days for the Plaintiff and 5.5 for the Defendant. The Court assigned this action a fixed trial date of February 22, 2021, to proceed for 20 days.
II. The Impact of the Pandemic on Civil Jury Trials in Toronto Region
[12] Since March 2020, the COVID-19 pandemic has disrupted the Court’s ability to conduct jury trials. The Court has taken extensive measures to put in place an infrastructure to conduct civil jury trials safely during the pandemic. In Toronto Region, designated courtrooms have been outfitted with plexiglass barriers; stringent rules have been implemented to limit the number of people in a courtroom to allow for social distancing; the courtrooms have been reconfigured; air ventilation systems have been examined and are being monitored; personal protective equipment has been procured and is in widespread use; and guidelines have been implemented, screening all justice participants entering the courthouses. Multiple courtrooms have been allocated for a single jury trial to allow for more vast areas for jury deliberation. Space in the Metro Convention Centre has been secured to accommodate the large number of people required for jury selection. The Ministry of the Attorney General has taken steps to establish a plan to facilitate the resumption of jury trials throughout Ontario.
[13] These steps, combined with decreased levels of transmission of the coronavirus in Toronto resulting in relaxed public health guidelines, allowed civil jury trials to be conducted in Toronto Region over three weeks in September and early October 2020. However, with the exception of these three weeks, the pandemic has prevented the Court from conducting civil jury trials in Toronto Region from March 17, 2020 to present. [1] The Court has most recently stated that the suspension of jury trials in Toronto Region will be extended to May 3, 2021, “at the earliest”. [2]
[14] This means that the public health requirements in Toronto have restricted civil jury trials in Toronto Region to 3 weeks out of the 58-week period from March 17, 2020 to May 3, 2021. Apart from the civil jury trials conducted in September-October 2020, the civil jury trials that were scheduled for hearing during this time have not been reached. These civil jury trials are vying for scheduling during the Toronto Region’s June 2021 Sittings, and then only if the suspension of jury trials is lifted after May 3, 2021.
[15] By contrast, civil non-jury trials have taken place in the Toronto Region throughout this period using a number of formats: (i) virtually, using a Zoom platform and an on-line document storage folder in sync.com or OneDrive and now in CaseLines; (ii) in person, when public health guidelines allow, even with restricted numbers of people in the courtroom; and (iii) using a hybrid virtual/in person trial structure. In addition to the conduct of civil trials on a virtual platform, the conduct of multiple court processes using a Zoom platform is in widespread use in civil cases in Toronto Region, and has been for many months. These include long and short motions, applications, civil practice court, long and short trial scheduling courts, case conferences and pre-trial conferences.
[16] The parties’ Pre-Trial Conference, held on July 15, 2020, was conducted virtually, as was their Trial Management Conference on October 1, 2020. This Motion was also heard by videoconference. The virtual platform is familiar to all counsel in this action, and none has submitted that there is any issue with the trial in this action taking place virtually.
III. This Motion
[17] The Plaintiff seeks the following relief:
(a) Leave to bring this motion after setting this action down for trial;
(b) An Order to strike the Defendant’s Jury Notice.
[18] I will deal quickly with the motion for leave. Rule 48.04 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that no party may initiate or continue any motion after setting an action down for trial. As the Plaintiff set this action down for trial on June 13, 2016, the Plaintiff required leave to bring this motion to strike the jury notice.
[19] The Defendant consented to the leave sought by the Plaintiff. Had it been necessary to decide this issue, I would have granted the leave sought by the Plaintiff on the basis that the Plaintiff has satisfied both of the tests for granting leave: the established test that requires that the moving party establish a substantial or unexpected change of circumstances after delivery of the Trial Record; or, the more flexible test that assesses whether the leave sought is in the interests of justice: Louis v. Poitras, 2020 ONSC 5301, 152 O.R. (3d) 760 (“Louis (Sup. Ct.)”), at para. 22; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, 126 O.R. (3d) 154, at para. 12; Coban v. Declare, 2020 ONSC 5580, at para. 29.
[20] The pandemic has caused a substantial and unexpected change of circumstance, and it is in the interests of justice that the Plaintiff’s motion be heard. I grant leave to the Plaintiff to bring his motion to strike the jury notice.
[21] I turn then to the issue of whether the Defendant’s jury notice should be struck.
IV. Analysis
A. Applicable Principles
[22] In Louis v. Poitras, 2021 ONCA 49 (“Louis (C.A.)”), at para. 17, the Court of Appeal explained that “the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.” The Court’s authority to order that an action proceed without a jury is founded on s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, on Rule 47.02 and in the Court’s exercise of its inherent jurisdiction to control its own process: Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), at para. 38, leave to appeal refused, [2006] S.C.C.A. No. 496: “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.”
[23] In Cowles, at para. 36, the Court of Appeal adopted as settled law, the principle stated in King v. Colonial Homes Ltd., [1956] S.C.R. 528, at p. 533, that “the right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons”. The Court of Appeal stated, at para. 37, that the party seeking to strike the jury has the onus of establishing “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”. The Court of Appeal has since affirmed these principles in Louis (C.A.), at para. 17, Belton v. Spencer, 2020 ONCA 623, at paras. 26-27, and 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.” In Belton, at para. 26, Brown J.A. summarized the role of the Court in considering a motion to strike a jury notice by affirming the following principles stated in Cowles, at paras. 36-39:
While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.
[24] I will now address the positions advanced by the parties to determine whether the moving party Plaintiff has satisfied the principles required to strike the Defendant’s jury notice.
B. The Parties’ Positions
[25] The Plaintiff submitted that the parties prepared this action for trial in October 2020 and have been on notice since then that the trial in this action will proceed on February 22, 2021. The Plaintiff relied heavily on the Court’s confirmation that this action is scheduled for trial on February 22, 2021 and can proceed at that time, for twenty days, but only as a non-jury trial. The Plaintiff submitted that the trial is now within reach and the alternative is to wait out the pandemic on the hope that the trial can be conducted in June 2021 and, if not, some undetermined time thereafter.
[26] The Plaintiff stated that his extensive trial preparation leading to the October 2020 Sittings and again for the February 22, 2021 trial date will be wasted if the trial is not held as scheduled. The Plaintiff contended that he moved to strike the Defendant’s jury notice expeditiously upon learning that the Court’s suspension of jury trials would impact the February 22, 2021 trial date. The Plaintiff maintained that there is no certainty that the state of the pandemic will allow for the conduct of civil jury trials in Toronto Region in June 2021 and even if it does allow, there is no certainty that this action will be reached. In addition to wasted costs, the Plaintiff emphasized he will sustain other prejudice through delay in adjudication, including loss of availability of witnesses and loss through statutory deductibles for recovery in this motor vehicle claim.
[27] The Defendant submitted that the current suspension of jury trials is only until May 2021 and that his right to a jury ought not to be removed to avoid an adjournment of only some four months. The Defendant contended that the delay in advancing this 2011 action to trial has been caused by the Plaintiff, and that it is not now acceptable that the Plaintiff be able to rely on delay to strike the Defendant’s jury notice. The Defendant maintained that the Court should take a “wait and see” approach, and dismiss the Plaintiff’s motion without prejudice to its reinstatement in June 2021 if the June 2021 Sittings do not proceed, or if the June 2021 Sittings proceed and this action is not called to trial. The Defendant relied on the following grounds: (i) Toronto Region has the capability to conduct jury trials during the pandemic; (ii) the delay in the adjudication of this action is at most four months; (iii) the evidence “strongly points” to the resumption of civil jury trials in Toronto Region in four months.
[28] Last, the Defendant took issue with the Plaintiff’s assertion that he is ready for trial, pointing to the Plaintiff’s recent service of further expert reports. The Plaintiff responded that he is ready for trial, and that any issue arising from any late-served reports should be left for the trial judge.
[29] No party took any issue with the conduct of the trial in this action on a virtual platform.
C. Analysis – Should the Defendant’s Jury Notice be Struck?
[30] There is a growing body of case law where courts have considered motions to strike jury notices by reason of the suspension of jury trials caused by the pandemic. Several courts have decided that the parties should “wait and see” whether the state of the pandemic will subside sufficiently to allow jury trials to proceed: Jiang v. Toronto Transit Commission, 2020 ONSC 5727; Kranjec v. Green, 2020 ONSC 6910; MacKenzie v. Pallister, 2020 ONSC 6914; MacDougall v. Sisley, 2020 ONSC 6632; Piette v. Haskins, 2020 ONSC 6633; Saadi v. Silva, 2020 ONSC 6700; Pietsch v. Lyons, 2020 ONSC 7628; Smith v. Muir, 2020 ONSC 8030.
[31] Other courts have exercised their discretion to strike the jury: Louis (Sup. Ct.), aff’d Louis (C.A.); Coban; Higashi v. Chiarot, 2020 ONSC 5523; Belton; Passero v. Doornkempt, 2020 ONSC 6384; Desai v. Labelle, 2020 ONSC 6557; Hipkiss v. Comeau, 2020 ONSC 7796; Solanki v. Reilly, 2020 ONSC 8031; H.K. v. T.B. and G.B., 2021 ONSC 799; Francisco v. Li, 2021 ONSC 1032.
[32] In surveying the “wait and see” body of cases, I have the benefit of hindsight. My review, conducted months after their determination, allows for the observation that the “waiting and seeing” is continuing without relief from the suspension of jury trials caused by the pandemic. I also observe that these cases are fact specific determinations made on an analysis of the following: (i) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication; (iv) the age of the case; (v) the history of adjournments.
[33] Apart from the appellate jurisprudence, the Defendant relied principally on two decisions in the Toronto Region: Saadi, a decision by Kimmel J., and Brook v. Karim, an unreported decision by Chalmers J. In each case, the Court implemented a “wait and see” approach. In Saadi, the jury trial had commenced during the October 2020 Sittings, the jury had been selected and the Court was hearing pre-trial motions, when the October 9, 2020 Notice to the Profession intervened by reason of the stage two restrictions caused by the increase in COVID-19 cases in Toronto. Justice Kimmel found that while an adjournment of the trial would result in some prejudice and inconvenience to the parties, the established prejudice to the Plaintiff did not outweigh the defendants’ loss of their substantive right to a jury. Justice Kimmel adjourned the jury trial to the June 2021 Sittings. Justice Chalmers reached the same conclusion on a similar analysis in Brook, where he adjourned, to May 31, 2021, an action that was pending for trial by jury on January 11, 2021 but was suspended by the Notice to the Profession dated December 14, 2020.
[34] I do not see these decisions as conflicting in principle with my analysis. The exercise of discretion in these cases was specific to the factual elements presented. In Saadi, the period of suspension of jury trials resulting from the pandemic was, at that time, only until November 16, 2020. Saadi involved a 2016 action and Brook a 2015 action, and there had been no previous adjournment of the trial date in either case. These are distinguishing elements from this case. And I observe that both Saadi and Brook were decided prior to the Court of Appeal’s release of its decision in Louis on January 25, 2021.
[35] Apart from the appellate jurisprudence, the Plaintiff relied principally on three decisions decided after the Court of Appeal’s decision in Louis: H.K.; Francisco; and, Mohan v. Howard (unreported). In H.K. and Francisco, the jury notices were struck. In Mohan, the jury notice was struck conditionally.
[36] H.K. and Francisco share common factual elements in addition to sharing a common outcome. In each case, the action had been adjourned at least once. Each court assessed the likelihood of civil jury trials resuming and concluded that the timing was uncertain and could give rise to further delay. In each case, the court noted that the parties would have costs thrown away from further adjournment of the trial and other financial detriment. Each court concluded that the uncertainty associated with the rescheduling of the trial date would result in delay that, on the authority of Louis v. Poitras, 2020 ONCA 815 (C.A. Stay Motion), at para. 33, and Louis (C.A.), at para. 22, constituted sufficient prejudice to justify striking out the jury notice.
[37] Having surveyed the applicable jurisprudence, I turn to its application to the evidence on this motion.
(a) The Role of the Litigation History
[38] The Defendant contended that the Plaintiff is at fault for the age of this case and has thereby forfeited any entitlement to submit that “justice delayed is justice denied”.
[39] This action is old. It is a motor vehicle claim that has entered its tenth year. It is well-established that the obligation to move a case forward rests with the Plaintiff: Prescott v. Barbon, 2018 ONCA 504, 141 O.R. (3d) 616, at para. 30; Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at paras. 37-41; Jadid v. Toronto Transit Commission, 2016 ONCA 936, at para. 23; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 27-28. “The primary responsibility for the progress of an action lies with the plaintiff”: Prescott, at para. 30, quoting from MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, 124 O.R. (3d) 420, at para. 33.
[40] But this does not mean that the Defendant’s conduct is immaterial. Any time that a Court is called upon to make a decision in the exercise of its discretion, the conduct of the Defendant is relevant. In Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142, at para. 19, the Court of Appeal stated as follows: “I appreciate that the appellant, as plaintiff, bore responsibility for moving the action along, but respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice.” I note that none of the Orders required by the Plaintiff to restore this action was opposed by the Defendant.
[41] The Defendant’s submission, distilled to its core, was that since there has been significant delay in advancing this action to trial already, more delay is acceptable. I cannot accept this submission. First, the Defendant had processes available to address delay in advancing this action to trial in the pre-trial stage. Second, the Defendant can make submissions at trial on the issue of delay, and seek relief, as it considers advisable. But most importantly, any further delay in advancing this action to trial is antithetical to the objective of timely adjudication.
[42] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 29, the Supreme Court of Canada emphasized the need to change a “culture of delay and complacency” towards the criminal justice system. The starting point was to ensure timeliness of adjudication as “one measure of the health of a justice system”: Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590, at para. 9. This follows the Supreme Court’s earlier statement in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 2, that there must be “timely and affordable access to the civil justice system.” The Court of Appeal has stated that the principles expressed in Jordan apply equally to the Ontario civil justice system”: Southwestern, at para. 9.
[43] The past delay in advancing this action to adjudication cannot be condoned, but does not diminish the objective that any history of delay not be further compounded.
(b) Local Conditions
[44] I explained earlier the myriad steps that have been taken in Toronto Region in an extensive effort to prepare courtrooms and court process for civil jury trials, the moment that public health conditions permit. Notwithstanding, jury trials have been capable of being conducted in Toronto Region on only 3 weeks out of the 58 weeks in the period from March 17, 2020 to May 3, 2021. This is a keen reflection that the capacity to conduct jury trials in Toronto Region is dependent on the state of the pandemic in Toronto.
[45] The next jury sittings in Toronto Region are scheduled for June 2021: four months from now. That is the earliest that this action could be adjudicated with a jury. The Defendant submitted that I should find that the evidence “strongly points” to the resumption of civil jury trials at that time by taking judicial notice of the following: (i) COVID-19 cases have substantially decreased in Ontario over the past several weeks; (ii) the Ontario Government is beginning a phased reopening; (iii) there is a path toward jury trials when the suspension ends on May 3, 2021.
[46] Judicial notice is the acceptance of a fact without proof. The Supreme Court stated that it applies to two kinds of facts: “(1) facts which are so notorious as not be the subject of dispute among reasonable persons; and (2) facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: R. v. Williams, [1998] 1 S.C.R. 1128, at para. 54. The facts proposed by the Defendant are not capable of acceptance through judicial notice.
[47] As have other courts, I take judicial notice that we are experiencing a terrible global pandemic, caused by a novel coronavirus that is highly transmissible and has tragically caused deaths and illness across Canada. I can take judicial notice that the virus affects people of all ages and that Toronto has experienced a higher number of cases than other parts of Ontario. I can also take judicial notice that Canada has approved two vaccines that are in the process of being administered across Canada. But this does not allow for forecasting of what might occur in June 2021. I do not have sufficient evidence to conclude that there is a strong likelihood that jury trials can resume in time for the June 2021 Sittings, as urged by the Defendant, and decline to do so.
[48] I also have an insufficient basis on which to assess the likelihood that this action, now scheduled for 20 trial days, would be reached in the June 2021 Sittings, even if jury cases are being conducted at that time. Two Jury Sittings in the Toronto Region have been cancelled by reason of the pandemic and are pending for the June 2021 Sittings, as are other jury trials with fixed dates that have been suspended. I am aware that if this action were held down for trial during the June 2021 Sittings, and if not called to trial at that time, the 20-day trial in this action would not be reached until late 2021 or early 2022. The timing of the trial of this action would extend similarly into late 2021 or early 2022 if this action were held down for the June 2021 Sittings and if jury trials were not able to proceed at that time.
[49] The Court has scheduled this action to proceed to trial on February 22, 2021 for 20 days. The Plaintiff has submitted that this action is well-suited for a virtual trial and the Defendant did not raise any issue regarding the appropriateness of this action for a virtual trial.
(c) Assessment of Detriment to the Parties
[50] I am satisfied that the Plaintiff has established that it would sustain detriment through further delay in this action proceeding to trial. The Plaintiff has shown this through additional costs in trial preparation that would be replicated on another trial date in either June 2021, or thereafter, and detriment that would be caused by operation of the provisions of the Insurance Act applicable to motor vehicle claims. Specifically, the Plaintiff’s past (pre-trial) loss of income claim is recoverable at 70% of gross income while future (post-trial) loss of income is recoverable at 100%, in accordance with ss. 267.5(1)2 and 267.5(1)3 of the Insurance Act. Additionally, the indexed statutory deductibles increase annually, meaning that the amount of the Plaintiff’s claim subject to deductible reduces each year that the action is delayed for adjudication. The Plaintiff also submitted that the continued existence of this action is emotionally draining on him and his family. Last, the Plaintiff showed that a liability witness, an investigating police officer, is now retired and cannot be located for purposes of trial and there is a risk that other witnesses may be lost if the trial is further adjourned.
[51] The Defendant did not tender any evidence of detriment that would be sustained if his jury notice were struck, apart from the loss of his election that the trial proceed with a jury. In oral submission, the Defendant stated that he would sustain detriment because he has prepared this action as a jury trial and would now have to convert his preparation for a non-jury trial. To the extent that the Defendant suggested different preparation for a non-jury trial than a jury trial, it was not particularized or substantiated. A trial judge may dismiss a jury before beginning to hear evidence and the trial would be expected to proceed without interruption to re-cast litigation preparation: Cowles, at para. 71.
[52] The Defendant’s submission falls short of the evidence of a litigation strategy presented for consideration by Kimmel J. in Saadi. The Defendant simply did not lead evidence, or explain, what litigation detriment he would sustain if the claims advanced against him were determined by a judge as opposed to a jury. It was insufficient to simply claim a substantive detriment through the striking of a jury notice, in principle, without any evidence of a practical, functional or purposeful disadvantage.
(d) Readiness for Trial
[53] The Plaintiff certified this action as ready for trial over four years ago, on June 13, 2016. The parties have confirmed the readiness of this action for trial at the time of their appearance in Trial Scheduling Court on October 17, 2018, at the Pre-Trial Conference on July 15, 2020 and at the Trial Management Conference on October 1, 2020. The Plaintiff submitted that he is ready for trial and stated that a virtual platform for the trial would accommodate all parties but especially the out-of-province experts.
[54] The Defendant submitted that the Plaintiff recently delivered a further expert report and that this action is thereby not ready for trial. Like the admissibility of all expert reports, this is an issue for the trial judge. In my view, the purported late service of an expert report does not impact this action proceeding to trial on the scheduled trial date of February 22, 2021.
V. Conclusions
[55] The party’s choice of process is not unfettered. A party’s right to a jury trial is not absolute: Louis (C.A.), at para. 17; Louis (C.A. Stay Motion), at para. 67; Belton, at para. 26; Girao, at para. 171. They are “subject to the overriding interests of the administration of justice and issues of practicality”: Louis (C.A. Stay Motion), at para. 24. They are subject to the Supreme Court of Canada’s objective of access to justice that is timely, affordable and proportionate to achieve a just and fair result: Hryniak, at paras. 2, 28 and 66.
[56] The Plaintiff has shown that justice to the parties will be better served by the discharge of the jury and the conduct of the trial in this action on its scheduled date of February 22, 2021. I reach this conclusion because the action is approaching its tenth year, it has already been adjourned once, the Plaintiff has shown detriment that would arise from a further adjournment and the Defendant has not shown detriment that would arise from striking the jury notice apart from the statement in principle of the Defendant’s entitlement to choose trial by jury. Most importantly, the parties have access to justice now, without a jury, as opposed to facing the uncertainty of whether their 20-day trial would be capable of being conducted with a jury in the June 2021 Sittings, at the earliest, with the potential for longer delay. This is a delay in advancing this action to trial with a jury, and reason enough to set aside the Defendant’s jury notice, in accordance with the Court of Appeal’s guidance that: “Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice”: Louis (C.A. Stay Motion), at para. 33; Louis (C.A.), at para. 22.
[57] There is no means to forecast whether the state of the pandemic in Toronto in June 2021 will allow for jury trials to be conducted. The Court of Appeal stated in Louis (C.A.), at para. 2, that judges “must find creative ways to ensure that parties get their day in court in a timely manner.”
[58] While I acknowledge that there was a time to “wait and see” in earlier phases of this pandemic, and may still be in various judicial regions or in different cases with different age, length, issues and characteristics, “wait and see” is not a rule of law, it is an approach: Cowles, at para. 71; Belton, at para. 31. I do not accept that this is an appropriate time to “wait and see” in this case. It is time for this case to be adjudicated, and the striking of the Defendant’s jury notice is a necessary step to this end. This is one of those instances, previewed by F.L. Myers J. in pre-pandemic times in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 32, where the right to a jury trial has to yield “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.”
[59] I thereby order that the Defendant’s jury notice is struck to allow this action to proceed to its 20-day trial scheduled for February 22, 2021.
[60] The parties reached an agreement on the issue of costs. On the consent of the parties, the Plaintiff is awarded costs of this motion, payable forthwith by the Defendant Chris Brielmayer, fixed in the amount of $7,000, all inclusive.
VI. Disposition
[61] On the basis of these reasons, I order as follows:
- The Plaintiff is granted leave to bring this motion to strike the Defendant’s jury notice after setting this action down for trial.
- The jury notice delivered by the Defendant Chris Brielmayer is struck.
- The Plaintiff is awarded costs of this motion, payable forthwith by the Defendant Chris Brielmayer, fixed in the amount of $7,000, all inclusive.
A.A. Sanfilippo J. Date: February 18, 2021