Court File and Parties

Court File No.: 5384/12 Date: 2021-02-22 Superior Court of Justice - Ontario

Re: S.M., T.M. and I.M, Plaintiffs And: Ero Longo (née Siouga) and York Catholic District School Board, Defendants

Before: D. Fitzpatrick J.

Counsel: Roger R. Foisy, Harpreet S. Sidhu, Manjot S. Heer and Daniel Berman, for the Plaintiffs George A. Bougadis and Boris Goryayev, for Ero Longo Susan Adam Metzler, for York Catholic District School Board

Heard: February 4, 2021

Endorsement

[1] This motion was brought by the Plaintiff, S.M. seeking the exercise of the Court's discretion to strike his Jury Notice filed November 27, 2014 pursuant to section 108(3) of the Courts of Justice Act and rules 1.04 and 47.02(2) of the Rules of Civil Procedure. The primary Defendant, Ero Longo opposes this relief. The secondary Defendant, the York Catholic District School Board takes no position and, I am now told, will take no part in the trial of this matter.

[2] Counsel for the primary Defendant did not contest the issue of leave for this motion to be heard. This was an appropriate concession and one that the Court agreed with in the circumstances of this case. Leave to hear this motion was granted.

[3] The parties agree that the fundamental test on this motion is whether justice will be better served by the discharge of the jury (see: Cowles v. Balac, 83 O.R. (3d) 660 (C.A.)). That determination, of course, must be made contextually with consideration to the factors particular to each case, including the extant legal and factual issues, the anticipated evidence, and the conduct of the trial itself.

[4] This action presents allegations of sexual touching and related psychological abuse going back to the 1980s. The Statement of Claim was issued some twenty-six years later in September, 2012. It cannot be said that the Plaintiff pressed this action forward with dispatch. The Plaintiff conducted a discovery of the primary Defendant one year after his own discovery was completed. The Plaintiff did not file his Trial Record until September, 2017, being a further two years following discoveries. The primary Defendant has not been without delay blame in this matter either (see: Miller J. endorsement made August 22, 2018).

[5] This action was before me at the trial Assignment Court on January 2, 2018. I then scheduled a pre-trial for September 9, 2018 and a trial during our bi-annual trial blitz commencing October 9, 2018. For the uninitiated, the trial blitz is not a fixed trial date. The blitz is a running list of all trial ready civil and family law cases (jury and non-jury) that are heard during the 4-5 weeks of the blitz depending on available resources. It is worth noting that this blitz format has proven very effective in concluding trial stage actions and thereby addressing backlogs.

[6] By the time of the pre-trial in this matter at September, 2018, the time estimated for this trial was 6-7 weeks. As such and appropriately, Master Mills removed this case from the October, 2018 trial blitz schedule on the basis of the estimated trial time exceeding the length of the blitz.

[7] This action was next before Regional Senior Judge Daley (as he then was) for a series of pre-trials. On March 4, 2019, Justice Daley set March 22, 2021 as a fixed trial date for this action. The time estimate was again noted at 6-7 weeks. This case was last before Justice Daley on November 30, 2020 for a further pre-trial. It was at this time that the Plaintiff first advised of his intention to bring this motion to strike his Jury Notice.

[8] With the input and agreement of counsel, I made inquiries prior to hearing submissions on this motion to provide counsel with the currently known options should this trial not proceed at March, 2021. Counsel were advised that a zoom video trial could be accommodated starting at the spring of 2021 (non-jury), this case could be placed on the October, 2021 blitz for an in-person trial (jury or non-jury) or set for the first fixed trial date available in January, 2023 (jury or non-jury).

[9] Also prior to submissions on the motion merits, I was advised that the Plaintiff had negotiated a settlement with the School Board. Flowing from this, Plaintiff's counsel and counsel for the primary and now only Defendant estimated the required trial time to be approximately four weeks.

[10] There is a substantive but not absolute right to a jury trial that should not be interfered with absent compelling reasons (see: Cowles at para. 36). The Plaintiff bears the burden of persuading the Court that such reasons are present. Simply stated, the Plaintiff argues that the COVID pandemic has created a delay in jury trials being heard and that justice to the parties will be better served if this matter can proceed remotely in March, 2021 before a judge alone.

[11] The Chief Justice for the Ontario Superior Court has declared that no jury trials will be held until at least May 1, 2021. The resumption of jury trials will depend upon the overall status of the pandemic, including vaccinations and the particular court resources available. Referencing the former, the infection rate has been trending down in Canada and worldwide. The Federal Government offers near daily proclamations that everyone who desires vaccination will have that opportunity by September, 2021. Referencing the latter, the Central West Region has secured off site facilities to safely select juries and has multiple courtrooms retrofitted to safely conduct in-person jury trials once the Chief Justice permits same, including such facilities in both Brampton where this trial was previously relocated to for the March, 2021 trial and Milton where this action was commenced. The trial was relocated from Milton to Brampton due to the closure of the Superior Court at the Milton for mould remediation efforts there. That remediation is scheduled to be completed by September, 2021. Accordingly, pandemic retrofitted court facilities should be available in both Milton and Brampton by September, 2021.

[12] Plaintiff's counsel presented various decisions from other motions to strike a jury heard during this pandemic. On that basis, Plaintiff's counsel submits that any delay in a jury trial being heard of twelve months or more is unconscionable and sufficient to strike a jury. The Court of Appeal has recently made it clear that delay alone may be enough to direct the Court to order a trial by judge alone (see: Louis v. Poitras, 2021 ONCA 49 at para. 22).

[13] Clearly, there is no fixed equation such as the delay limits now set for criminal cases (see: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631). The right to a jury trial is subject to overriding administration of justice interests, including ensuring timely trials both for the specific case under consideration and the system broadly (see: Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7), and the extant practicalities. While I do not accept that there is now in place a hard threshold where a twelve-month delay will automatically justify an order for trial by judge alone, I do accept that this as a guide to be considered in my determination of this case. That being said, there is an option available here that would generate a delay of six months, namely placing this case on the October, 2021 blitz list for a jury trial. I do not consider a delay of six months in the overall circumstances of this case to be unconscionable or otherwise sufficient to strike the jury.

[14] The Plaintiff has not offered any evidence or argument in support of his motion beyond the concern over delay. The Plaintiff does not allege that any delay risks lost witnesses, memories or other evidence. There is no evidence that the Plaintiff will be prejudiced economically should the trial not go forward in March, 2021, including impact on his potential award following a trial. There is no evidence additional costs will be incurred beyond the potential costs related to a jury trial requiring more court time than with a judge alone. For example, both counsel advised that there will not be any need to update existing expert reports for an October, 2021 trial.

[15] The only other concern raised by the Plaintiff was his own counsel's unavailability for an October, 2021 trial. That concern cannot assist the Plaintiff on this motion.

[16] It is a familiar feature of contemporary practice that counsel are scheduled for contemporaneous trial sittings in multiple jurisdictions. This was so well prior to the pandemic and reflects the fact of multijurisdictional practices with overlapping trial sittings. Counsel set such dates with the reasonable expectation that matters scheduled for trial regularly settle or are otherwise unable to proceed. Many firms engaged in such multijurisdictional practices, like Plaintiff's counsel, have a roster of lawyers available to address competing commitments, including trials. Further, overlapping trial scheduling often creates efficiencies by ensuring that at least one trial matter proceeds and that no dedicated trial time is lost for want of cases. The need for these efficiencies has become acute with the pressures on the administration of justice flowing from the pandemic.

[17] The point I am trying to make is that double booking Plaintiff's counsel by scheduling this case for the October, 2021 blitz when counsel already has another trial that is scheduled during that period is not unusual or sufficient reason to direct that a judge alone trial must proceed at March, 2021. The reality is that the other matter that Plaintiff's counsel is committed to in October, 2021 may settle or otherwise not be able to proceed. Further, counsel for the Plaintiff has other lawyers in the firm and all such resources will need to be deployed to address this case and their other commitments in October, 2021.

[18] More generally, it is simply not an acceptable argument for the Plaintiff to say that his counsel cannot facilitate a trial in October, 2021 and that the resulting delay into 2022 for the next possible trial by jury (i.e. the March, 2022 blitz) is unconscionable. Similar to the post-Jordan accounting in criminal matters, any delay arising from Plaintiff counsel's lack of availability for October, 2021 is borne by the Plaintiff.

[19] It is worth noting that counsel for the Defendant also advised that he is already committed to matters in October, 2021 but that another lawyer(s) from his firm would take over primary carriage of this trial if necessary.

[20] It was the Plaintiff who served the subject Jury Notice believing that to be the best forum for the determination of the factual and legal issues raised in this action. The Plaintiff maintained this position and, presumably, directed all preparations to a jury trial for the four years following filing of that Notice. Similarly, counsel for the Defendant advised that all of their preparations have been directed to that method of trial.

[21] It was only four months before the scheduled March, 2021 trial that the Plaintiff pivoted to the view that justice to the parties would be best served with the jury being struck due to anticipated delay. I have rejected that argument for the reasons noted above.

[22] Counsel for the remaining Defendant argued that a jury trial in October, 2021 best serves the interests of the parties. I agree. Stated another way, the Plaintiff has failed to persuade me that justice to the parties will be better served by an order directing this trial to proceed remotely before a judge alone at March, 2021. The Plaintiff's motion is dismissed.

[23] The trial dates commencing March 22, 2021 are vacated. I am placing this action on the October, 2021 trial blitz marked for a four week trial in person before a judge and jury.

[24] Clearly, I do not have the ability to see into the future. I can only act upon the best, current information. That information is that jury trials will be available by October, 2021 based on expected vaccine rollouts and the facilities presently available in this Region.

[25] Counsel and the Court must also make all efforts to ensure that this trial proceeds in October. In that regard, counsel must work cooperatively to create efficiencies and a related schedule that will facilitate this trial being completed in no more than four weeks. I note that they have already made some such efforts by reducing the number of parties involved in the trial and agreeing that the experts will testify by video. For my part, I am endorsing that this trial be given priority to proceed during the October blitz given that it has now been twice adjourned.

[26] Finally, I recognize that despite all best efforts there remains the possibility that this trial will not proceed before a jury during the October, 2021 blitz. The future of this pandemic and the related impact upon the ability to conduct jury trials remains, by degree, uncertain. Bearing that in mind, the issue of striking the jury should remain open for either party to pursue should this action not have a trial by jury during the October blitz. As such, I am dismissing the Plaintiff's motion without prejudice to this issue being revisited in the event this trial does not proceed come October.

[27] I would direct the parties to resolve the issue of costs flowing from this motion and my decision. Should they be unable to then I will accept brief written submissions. Counsel for the Defendant may file submissions within 15 days of this endorsement not exceeding three typed pages, double-spaced with standard margins along with any relevant Offer(s) and Bill of Costs. Plaintiff's counsel may file his submissions within 25 days of this endorsement not exceeding three typed pages, double-spaced with standard margins along with any relevant Offer(s) and Bill of Costs. Any reply from the Defendant can be filed within 30 days of this endorsement not exceeding one typed page.

(Original signed by) D. Fitzpatrick J. Date: February 22, 2021