COURT FILE NO.: 14-62378 DATE: 2021/02/19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRUCE COWLEY and FRANCINE COWLEY Plaintiffs – and – SKYJACK INC., DICKIE MOORE RENTALS, BONDFIELD CONSTRUCTION COMPANY LIMITED, FITZPATRICK ELECTRICAL CONTRACTOR INC. and CAMPBELL AND KENNEDY ELECTRIC (OTTAWA) LIMITED Defendants

Counsel: Paul H. Auerbach, for the Plaintiffs Kevin P. Nearing, for the Defendant, Dickie Moore Rentals Colin R. Dubeau, for the Defendant, Bondfield Construction Company Limited Pat C. Peloso, for the Defendant, Campbell and Kennedy Electric (Ottawa) Limited

HEARD: December 17, 2020

RULING ON MOTION

(Plaintiffs’ Motion to Strike the Jury Notices)

Corthorn J.

Introduction

[1] The plaintiffs seek an order (a) striking the jury notices delivered by the defendants, and (b) directing that the action proceed to a trial before a judge alone. The plaintiffs make two arguments in support of the relief sought.

[2] The plaintiffs’ primary argument is that because of COVID-19, and the current suspension of civil jury trials, it is uncertain when this action can be tried before a judge and jury.

[3] The plaintiffs also point to the complexity of the issues to be determined. The plaintiffs acknowledge that complexity alone is not necessarily a sufficient reason to strike a jury notice prior to the commencement of the evidence at trial. The plaintiffs ask the court, however, to consider the cumulative effect of complexity and the impact of COVID-19 on the timing of the trial of this action. The plaintiffs submit that the cumulative effect leads to an increase in (a) the estimated length of the trial, and (b) in turn, the uncertainty as to when the trial will be scheduled to proceed before a judge and jury.

[4] The plaintiffs submit that whether the court relies on the delay resulting from COVID-19 alone, or because of the cumulative effect of COVID-19 and complexity, justice as between the parties to this action is best served by an order striking the jury notices.

[5] The defendants oppose the relief sought. The defendants’ position is that there is insufficient evidence before the court to permit it to assess the potential delay in the commencement of the trial. They submit that the plaintiffs fail to meet the onus they bear to establish that they will, as a result of COVID-19, experience a delay in the start of the trial before a judge and jury.

[6] With respect to the suggested complexity, the defendants make two arguments. First, they submit that the plaintiffs are not entitled to rely on complexity because that issue was not raised until the plaintiffs addressed it in their supplementary motion record. If, however, the plaintiffs are entitled to rely on complexity, then the defendants submit that the court should adopt a “wait and see” approach.

[7] The defendants ask the court to dismiss the plaintiffs’ motion, without prejudice to the plaintiffs being entitled to renew the motion once the trial proper has commenced and some evidence has been called. Only then, the defendants say, will the court be in a position to assess the extent, if any, to which complexity is a factor on a motion to strike the jury notices.

[8] The action was set down for trial in 2017. The plaintiffs require leave to bring this motion. For both the issue of leave and the substantive motion, it is helpful to understand the history of the action to date.

Background

[9] The plaintiffs’ claims arise from a workplace incident in August 2013 in which Bruce Cowley was involved. Mr. Cowley was injured while descending from an aerial work platform known as a “Skyjack”. The co-plaintiff is Mr. Cowley’s spouse.

[10] The defendants against whom the action is proceeding to trial are Dickie Moore Rentals, Bondfield Construction Company Limited, and Campbell and Kennedy Electric (Ottawa) Limited (collectively, “the defendants”). The action as against Fitzpatrick Electrical Contractor Inc. was dismissed several years ago.

[11] The other defendant is Skyjack Inc. (“Skyjack”). In December 2019, the plaintiffs entered into a Pierringer Agreement with Skyjack. As a result, Skyjack, will not be represented at trial. Regardless, representatives of Skyjack may be called to give evidence. In addition, it will be necessary for the trier of fact – whether a jury or the trial judge – to determine what liability, if any, Skyjack bears for the plaintiffs’ injuries and losses.

[12] Because Mr. Cowley was injured in a workplace incident, it will also be necessary for the trier of fact – again, whether a jury or the trial judge – to determine what liability, if any, the employer, Electrical Safety Authority, bears for the plaintiffs’ injuries and losses. The employer’s representatives will be called to give evidence; the employer will not be represented at trial by counsel.

[13] In brief, the chronology of this action is as follows:

• August 23, 2013 - Mr. Cowley is injured in a workplace incident.
• October 23, 2014 - The statement of claim is issued.
• August 25, 2015 - Examinations for discovery are conducted.
• August 26, 2015 - Examinations for discovery are conducted.
• November 30, 2015 - Examinations for discovery are conducted.
• May 2016 - The main action and crossclaims by or against Fitzpatrick Electrical Contractor Inc. are dismissed without costs.
• December 19, 2016 - The remaining parties participate in mandatory mediation.
• February 15, 2017 - The plaintiffs deliver their trial record.
• October 18, 2017 - The parties attend Trial Management Court. The trial is set to proceed, before a judge and jury (for 4 to 6 weeks) on January 13, 2020.
• October 21, 2019 - The parties participate in a pre-trial conference.
• December 10, 2019 - The plaintiffs enter into a Pierringer Agreement with Skyjack.
• January 8, 2020 - The Trial Coordinator advises the parties that the trial is adjourned from January 13 to January 27, 2020.
• January 20, 2020 - The plaintiffs serve two motion records, for motions to be heard at the commencement of trial.

[14] As the judge assigned to the trial of this action, I convened a Trial Management Conference. That conference was scheduled around my then existing schedule. As a result, the conference was carried out in late January 2020 – in small blocks of time over four days.

[15] For the reasons set out in my February 4, 2020 endorsement, [1] the trial was adjourned. The primary reason for the adjournment was that, because of the time required to hear and determine one, if not both, of the plaintiffs’ motions, the estimated trial time increased from six to seven weeks. The March Break fell during the seven-week stretch in which the trial was scheduled to proceed (i.e., commencing on January 27, 2020). In addition, I was scheduled to preside over other matters during that seven-week period, resulting in an additional five days during which the trial would have to be adjourned. The end result was that it would not have been possible to complete the trial in seven consecutive weeks. The trial would have had to take place over several blocks of time, requiring a commitment of more than seven weeks from the jurors.

[16] In the circumstances, the trial was adjourned, and the parties agreed to proceed as follows:

• The trial shall, when re-scheduled, proceed before me with a jury;
• The plaintiffs’ two motions would be argued before me in the interim. The motions shall be treated as motions at trial, including for the purpose of an appeal, if any;
• Timelines were set for the delivery of materials in response to the plaintiffs’ two motions and for cross-examinations, the latter if any;
• The plaintiffs’ motion with respect to collateral benefits would be argued on February 21, 2020; and
• The plaintiffs’ motion with respect to expert evidence would be argued on February 27, 2020. [2]

[17] Counsel were to report back to me with four dates, in March and April 2020, on which they were all available for a pre-trial conference. They did so, and a pre-trial conference was scheduled for the full day on March 25, 2020, before one of my colleagues.

[18] The plaintiffs’ motion with respect to collateral benefits was heard on February 21, 2020, as scheduled when the trial was adjourned the second time. The ruling on that motion was released on March 24, 2020: Cowley v. Skyjack Inc. et al., 2020 ONSC 1718. The COVID-19 pandemic intervened between February 21 and March 24, 2020. Court operations were shut down on March 15, 2020. The pre-trial conference scheduled for March 25, 2020 was cancelled.

[19] In October 2020, the plaintiffs served their record for this motion to strike the jury notices. In November 2020, the plaintiffs served a supplementary notice of motion and a second supporting affidavit. Both supporting affidavits are from associate counsel, Hamish Mills-McEwan. The defendants rely on a responding affidavit from Christine Kucey. Ms. Kucey is an associate lawyer with Borden Ladner Gervais LLP, the lawyers of record for Dickie Moore Rentals.

[20] Before dealing with the substantive relief sought, I turn to the plaintiffs’ request for leave to bring this motion for an order striking the jury notices.

Leave Under Rule 48

[21] The plaintiffs set the action down for trial and are, therefore, precluded from initiating this motion without leave: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 48.04(1).

[22] In support of their respective positions, the parties rely on different case authorities for the test to be met for leave to be granted. The plaintiffs submit that there are two alternative tests: BNL Entertainment v. Ricketts, 2015 ONSC 1737, 126 O.R. (3d) 154, at paras. 12, 14 (“BNL Entertainment”).

• The first of the alternative tests requires the moving party to demonstrate that there has been a substantial or unexpected change of circumstances subsequent to the action being set down for trial. This test is described as “the more established” of the two tests: at para. 12.
• The alternative test requires the moving party to establish that the proposed interlocutory step is necessary in the interests of justice. This test is described as “a broader approach”: at para. 12.

[23] In BNL Entertainment, Master Muir applied the broader approach in deciding whether to grant the moving party leave to conduct examinations for discovery after having set the action down for trial.

[24] By contrast, the defendants rely on the test for leave set out in Denis v. Lalonde, 2016 ONSC 5960, 134 O.R. (3d) 628, at paras. 10-12 (“Denis”). The defendants submit that a party who set an action down for trial must demonstrate that there has been a substantial and unexpected change in circumstances such that refusing to grant leave would be “manifestly unjust”: Denis, at para. 23. The motion judge in Denis specifically rejected the approach in BNL Entertainment as wrongly decided.

[25] In determining whether to grant the plaintiffs leave to bring this motion, I do not need to resolve the difference in the approaches between BNL Entertainment and Denis. Applying the more stringent of the two tests – that set out in Denis – I conclude that the plaintiffs have met the test for leave to bring the motion to strike the jury notices.

[26] The parties agree that the COVID-19 pandemic has resulted in a substantial and unexpected change in circumstances since February 2017, when this action was set down for trial. Applying the test from Denis, what remains to be determined is whether it would be manifestly unjust to refuse to grant the plaintiffs leave to bring this motion. For the reasons that follow, I find that it would be manifestly unjust to do so.

[27] First, when the trial was adjourned in late January 2020, it was intended by all – the court and counsel for the parties – that a new trial date would be set. There was, for example, discussion of a possible January 2021 date. The trial was not, however, adjourned to a specific date – in January 2021 or otherwise. Regardless, it was expected that a new trial date would be set.

[28] Second, scheduling events in this matter has been and continues to be affected by COVID-19. The pre-trial conference scheduled for late March 2020 was adjourned indefinitely because of the pandemic. For reasons unknown to the court, the parties chose not to reschedule that event once it was open to them to do so. Regardless, the adjournment of that event brought to a halt the parties’ forward momentum to another trial date.

[29] Third, the fact that the trial of this action was adjourned twice in January 2020 for reasons unrelated to COVID-19 is irrelevant. The parties to this action are in the same position as are parties to actions that were or are scheduled to proceed to a trial before a judge and jury on a date subsequent to March 15, 2020. None of those parties have any certainty – at least in Ottawa – as to when civil jury trials will be resumed.

[30] In summary, the parties to the matter now before the court (a) have a judge assigned to preside over the trial, (b) agreed, in January 2020, to a process intended to move the action forward to trial, and (c) were aware, when the trial was adjourned for the second time in January 2020, that they would, in due course, be assigned a new trial date.

[31] Having been granted leave to bring the motion to strike jury notices, are the plaintiffs entitled to rely on both their primary argument (delay caused by COVID-19) and their secondary argument (the cumulative effect of COVID-19 delay and the complexity of issues)?

[32] The fact that the plaintiffs did not raise complexity of issues in their original motion record does not prevent them from relying on complexity in support of the substantive relief sought. The defendants are in no way prejudiced by the timing of the notice received that the plaintiffs would be relying on that argument on the return of this motion. The defendants did not deliver their responding record until after they were served with the supplementary motion record. The defendants had both sufficient notice of, and time to respond to, the plaintiffs’ alternative argument on the motion.

[33] The defendants did not provide any case or other authority in support of their position that the plaintiffs are not entitled to rely on complexity of issues as part of their alternative argument.

The Decision of the Court of Appeal in Louis v. Poitras

[34] This motion was heard in December 2020. Prior to the end of 2020, the Court of Appeal for Ontario had not yet (a) heard the appeal from the decision of the Divisional Court in Louis v. Poitras, 2020 ONSC 6907, or (b) released its decision on the appeal in Louis v. Poitras, 2021 ONCA 49 (“Louis”). The latter decision was released on January 25, 2021.

[35] In their decision, the Court of Appeal addresses the “unprecedented crisis” currently faced by participants in the civil justice system, the requirement for this court to manage “a civil justice system that is being overwhelmed”, and the requirement for trial judges “to respond to local conditions to ensure the timely delivery of justice”: Louis, at paras. 1, 3.

[36] In Louis, the Court of Appeal emphasizes that, “[w]hile a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial”: Louis, at para. 17. The Court of Appeal reiterates the test on a motion to strike a jury notice set out in paras. 38-39 of Cowles v. Balac, (2006), , 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496:

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.

The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible.

[37] The motion judge in Louis, Beaudoin J., received approbation from the Court of Appeal for,

• approaching the case practically (para. 23),
• being cognizant of the responsibility of the court, to the parties and to the civil justice system, to move the case forward and provide timely service (para. 23),
• taking into consideration not only the interests of the parties, but also the interests of the administration of justice (para. 25), and
• understanding the availability of resources in Ottawa, in light of the COVID-19 pandemic (para. 26).

[38] The Court of Appeal decision in Louis does not result in any change to the substantive test to be applied on a motion to strike a jury notice. The decision does, however, clarify the factors that a judge hearing such a motion may consider when determining whether to exercise their discretion to strike a jury notice.

[39] Subsequent to the release by the Court of Appeal of its decision in Louis, counsel for the parties on this motion were (a) informed that, in deciding the matter before this court, this court would rely on Louis, and (b) invited to make submissions in writing on the decision. No submissions were received by the deadline set for their delivery.

The Issue

[40] The sole issue to be determined is whether justice to the parties will be better served by trying the case with or without a jury.

Positions of the Parties

[41] The plaintiffs rely on delay in obtaining a trial date as the basis for a finding that they have suffered prejudice justifying striking the jury notices:

• In support of a finding of prejudicial delay, the plaintiffs rely primarily on the COVID-19 related and indefinite suspension of jury trials in Ottawa; and
• Alternatively, if that delay alone is not sufficient to support the requisite finding, then the plaintiffs rely on (a) the contribution that the complexity of issues to be determined makes to increase the length of the trial of this action before a jury, and (b) the delay the parties will encounter, including because of the indefinite suspension of jury trials, to obtain a trial date.

[42] The plaintiffs submit that justice to the parties will be better served by an order striking the jury notices and for the trial to proceed before the trial judge in several multi-week tranches. This approach to scheduling a trial before a judge alone was taken by Beaudoin J. and upheld by the Court of Appeal in Louis.

[43] The defendants’ position is that there is insufficient evidence to support a finding that the parties will encounter delay in obtaining a trial date. They submit that at this stage of the proceeding, the court should not consider the complexity of the issues at all. The defendants ask the court to take a “wait and see” approach in that regard. The defendants submit that much of the anticipated complexity may ultimately not materialize.

Analysis

[44] It is now 7.5 years since Mr. Cowley’s workplace incident occurred and four years since the action was set down for trial. One year has passed since the trial was adjourned.

[45] The practical reality for the parties is the same today as it was when the motion was heard in December 2020. In that regard, I take judicial notice of the following matters:

• The suspension of jury trials in Ottawa remains in effect, including pursuant to the most recent notice issued by the Chief Justice of Ontario on January 13, 2021 [3];
• The suspension of jury trials, in effect until May 3, 2021, will be reviewed in March 2021, depending on the restrictions that may be in place locally and provincially and the state of the public health emergency at the time [4];
• There are, at present, a limited number of courtrooms available in Ottawa that have been retrofitted with plexiglass to accommodate a jury trial; and
• There is, at present, a single room available for jury deliberation. [5]

[46] When jury trials resume in Ottawa, it will be necessary to address scheduling jury trials in criminal matters and in civil matters. The extent to which prioritizing criminal jury trials, including for accused who are incarcerated pending trial, will impact the scheduling of civil jury trials is unknown. I take judicial notice, however, of the potential for civil jury trials to be delayed while a backlog of criminal jury trials is addressed.

[47] The defendants are critical of the plaintiffs because they did not provide specific evidence of the difference between the anticipated trial date if the matter proceeds before a judge and jury, and the anticipated trial date if the trial proceeds before a judge alone. The defendants submit that, absent that evidence, the court is not in a position to determine what delay, if any, the parties will experience in obtaining a trial date.

[48] The defendants’ argument misses the mark. The extent to which that argument misses the mark is demonstrated by the following from para. 22 of the Court of Appeal decision in Louis:

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’etre 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.

[49] As I have noted, for the plaintiffs in this action, the delay from the date of the subject incident is 7.5 years – even greater than the delay in Louis.

[50] The defendants ask the court to consider the benefit of the certainty of a verdict immediately following the conclusion of evidence before a jury. They contrast that certainty with the uncertainty of the timing of the decision of a trial judge. In that regard, the defendants refer to the six-month time frame within which a trial judge has to deliver their decision. Once again, the defendants’ argument misses the mark. The measure for delay in this matter is the period prior to the commencement of trial and not delay encountered once the trial has started.

[51] The defendants have not provided any evidence or explanation “in specific functional terms, [as to] what litigation disadvantage [they] might suffer if [their] rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury”: Belton v. Spencer, 2020 ONCA 623, at para. 55. In the circumstances, the defendants’ right to a jury trial must yield to the practicalities: Girao v. Cunningham, 2020 ONCA 260, at para. 171.

[52] Given that I am the trial judge, I am in a position to take judicial notice of my schedule. In that regard, I take notice that I am able to preside over this trial in two-week and/or three-week blocks of time, commencing as early as May 2021. [6]

[53] The practicalities which the court must consider include the question of timeliness: “the defendant[s’] prima facie entitlement to a jury trial must yield to the overriding interests of justice that include the just resolution of a civil dispute in a timely manner. The defendant[s’] entitlement must yield to the current realities faced by the court in Ottawa”: Desai v. Labelle, 2020 ONSC 6557, at para. 35.

[54] I find that the uncertainty and delay arising from the COVID-19-related suspension of jury trials constitutes prejudice to the plaintiffs. I conclude that the parties are better served by an order striking the jury notices and with the trial proceeding in two-week and/or three-week blocks before me, as the trial judge alone. Striking the jury notice will permit a just and more efficient determination of the action, in a reasonably timely manner.

[55] The plaintiffs succeed on this motion on the basis of their primary argument on the issue of delay. As a result, it is not necessary to consider their alternative argument – the cumulative effect of complexity and COVID-19-related delay. I would, in any event, agree with the defendants and defer the consideration of complexity. I would adopt the wait and see approach, acknowledging the possibility that not all of the anticipated complexities will arise at trial.

Summary

[56] The plaintiffs’ motion to strike the jury notices is granted. The trial shall proceed before me, as a judge-alone trial, in multi-week blocks of two or three weeks each. Counsel for the parties on this motion shall contact the office of the Trial Coordinator to schedule a Trial Management Conference to take place virtually.

[57] The purpose of the Trial Management Conference includes to set the dates for trial. Counsel shall, prior to attending at the conference, consult with one another so as to be able to advise the court as to the multi-week blocks in which they are all available for trial. In addition, counsel for the parties will be expected at the conference to (a) identify what, if any, motions remain to be determined before the trial commences, and (b) discuss the logistics of a virtual trial should it be necessary to proceed virtually.

[58] The costs of the motion to strike the jury notices shall be addressed as part of the costs of the trial. No submissions with respect to costs of the motion shall be delivered at this time.

Madam Justice Sylvia Corthorn

Released: February 19, 2021

Footnotes:

[1] The endorsement is unreported. [2] This motion was ultimately adjourned to be heard at a later date including, possibly, during the trial proper. [3] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-to-the-profession-and-public-december-22-2020/ [4] Ibid. [5] The jury assembly room has been converted to a jury deliberation room. [6] As of the date of this ruling, the court would be able to schedule the trial to commence as early as May 2021. The ability of the court to schedule the trial to do so is, however, subject to change with the passage of time.