Court File and Parties

COURT FILE NO.: CV-17-577583 DATE: 20210301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SARA BAKER Plaintiff – and – MEDAVIE BLUE CROSS BLUE CROSS LIFE INSURANCE COMPANY OF CANADA Defendant

Counsel: Stephen Birman and Ava Williams, lawyers for the Plaintiff Barry Marta, lawyer for the Defendant

HEARD: February 26, 2021

Reasons for Decision

G. DOW, J.

[1] The trial of this action is scheduled to commence March 22, 2021 for 15 days with a jury. Jury trials in Ontario have been suspended until at least May 3, 2021 as a result of the COVID pandemic. The plaintiff seeks to strike the jury notice so that this case may proceed virtually on March 22, 2021.

Background

[2] This action seeks reinstatement of long term disability benefits in the amount of $4495.00 per month (subject to deductions for other benefits being paid such as Canada Pension Plan disability benefits).

[3] The benefits were discontinued as of July 31, 2016 having been paid since the plaintiff suffered a stroke in 2013. The Statement of Claim was issued on June 22, 2017 and included claims for interest, punitive and aggravated damages. Following the filing of the Trial Record, the parties appeared in Trial Scheduling Court on May 22, 2019 and obtained the March 22, 2021 trial date.

[4] As the action was certified ready for trial, Rule 48.04 required the plaintiff to request leave to advance its motion. The defendant did not oppose the granting of leave. Given the circumstances, I proceeded to hear submissions on the substantive issue and granted the leave requested.

Analysis

[5] There are now many decisions across the province dealing with this issue, five of which I am aware, emanate from Toronto. There has also been reasons from our Court of Appeal in Louis v. Poitras, 2021 ONCA 49 on January 25, 2021. That matter reviewed a decision of Justice Beaudoin, sitting in Ottawa, which struck a jury notice and permitted an estimated 10 week trial to proceed to trial in three week tranches beginning in February, 2021.

[6] The right of a party to proceed to trial with a jury is a “substantive right and should not be interfered with without just cause or cogent reasons” (Cowles v. Balac, [2006], 83 O.R. (3d) 660 at paragraph 36). That right “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.” (Louis v. Poitras, supra at paragraph 17).

[7] I have chosen to focus on the Toronto based decisions because of the direction from the Court of Appeal in Louis v. Poitras, supra that there is “no single province wide answer to the problems we face in delivering timely justice; local conditions will necessarily impact the choice of effective solutions.” (at paragraph 3). Further, the Court of Appeal stated “local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case” (at paragraph 26).

[8] The most recent Toronto based decision is that of Johnson v. Brielmayer, 2021 ONSC 1245, released February 18, 2021. Without repeating same, I would adopt the summary of my colleague, Justice Sanfilippo (at paragraphs 22 and 23) regarding the factors to be reviewed in how to balance the substantive right to a jury with the court’s discretion strike same. Further, Justice Sanfilippo (at paragraph 32) summarized the analysis to follow which is to consider:

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; and v) the history of adjournments.

[9] Regarding the resources available, counsel were content with my observation from other decisions that the Toronto region may be uniquely well situated as civil matters are dealt with in a separate building than family and criminal matters. The Toronto region has available multiple retrofitted courtrooms suitable for conducting jury trials with jurors socially distanced.

[10] As soon as the suspension is lifted, jury panels can be assembled and civil jury cases can proceed in Toronto. This compares more favourably to other locations of the Superior Court of Justice in Ontario where civil, family and criminal matters share their facilities. Further, family and criminal matters may understandably need to take priority in those other regions when in person hearings resume.

[11] When weighed against the request to take away a substantive right of a party, I conclude this factor is in favour of dismissal of the motion.

[12] Regarding the local impact of the pandemic, plaintiff’s counsel raised and stressed the indeterminate nature of the suspension of jury trials and the length of delay. However, counsel acknowledged that over the last year, albeit briefly, a civil jury case did successfully proceed in Toronto (see Brooks v. Karim, unreported decision of Justice W. Chalmers, released January 8, 2021 at paragraph 39). In the Toronto region, I would again take notice that there are dedicated civil jury court rooms and this region has used offsite jury selection facilities. Thus, this region may be able to resume civil jury trials more quickly than in other parts of the province. This must be balanced against the Toronto region also having one of, if not the highest rates of infection. This would suggest it could be one of the last regions where restrictions may be lifted. To the contrary, the Toronto region may also receive a greater proportion of vaccine available to the public. The approval of new or additional vaccines may result in reopening occurring sooner. Overall, there seems to be many factors that both support or detract from the Toronto region being a place where any delay as a result of the COVID pandemic may be shorter or longer than elsewhere in the province.

[13] I conclude the uncertainties involved make this a neutral factor.

[14] Regarding the prejudice to the parties, the plaintiff submitted the delay itself is prejudicial noting that almost five years have passed since the plaintiff received a benefit. The plaintiff relied on the statement by Justice Abella in Fidler v. Sun Life, 2006 SCC 30 that the nature of long term disability policies necessarily involve contracts where the plaintiff was seeking a “psychological benefit” and that mental distress can be reasonably contemplated (at paragraphs 56 and 57). To the contrary, as noted by the defendant, there was no affidavit evidence of that nature placed before me on this motion from the plaintiff. Her evidence in support of the relief sought was tendered by a lawyer from the firm representing her.

[15] The defendant responded by relying upon having made an advance payment of eight months of net benefits owed or $26,545.84 to ameliorate any potential prejudice arising from the delay on February 24 (or two days before this motion was heard), and (in the defendant’s view) of when the trial could likely proceed. Further, the evidence tendered by the defendant was from the senior analysist directly involved in the carriage of this litigation matter. His evidence was, that based on the medical evidence and the extensive surveillance obtained, his employer’s litigation strategy was to proceed with a jury. The existence of specific evidence of such a litigation strategy is a valid consideration as has been noted in Saadi v. Silva, 2020 ONSC 6700 (at paragraph 44) and Brooks v. Karim, Justice W. Chalmers, supra (at paragraph 30). As a result, I conclude this factor is in favour of dismissal of the plaintiff’s motion.

[16] Regarding the age of this case, the plaintiff submitted prejudice arose from the length of time between when the dispute arose and a trial held should be considered without regard for the time between when benefits were terminated and the action commenced (11 months), the time between when the action was commenced and certified ready for trial (20 months) and the time between attending at Trial Scheduling Court and the presumably mutual determination of a trial date by the parties, their counsel and the court (22 months). To the contrary, these are times frames which a party may influence by its own behavior and litigation strategy and are part of the process of ensuring that a party is ready for trial when the case is called for trial.

[17] Further, this must be weighed and consideration be given to the larger situation such as noted by Justice Sanfilippo in the opening of his reasons in Johnson v. Brielmayer, supra “This action, now approaching its tenth year.” That is not the situation before me.

[18] As part of responding to this submission, the defendant raised the evidence of its analyst of not having seen a plaintiff deliver a jury notice in his ten years of experience. I rejected that noting the plaintiff’s evidence of a jury notice filed in another action against this defendant as well as my observing that jury notices are regularly utilized by highly skilled plaintiff personal injury counsel across the province. Further, at the outset of this hearing, I brought to the attention of counsel the (as yet unreported) decision of Sean Omar Henry v. Dr. Marshall Zaitlen, 2021 ONSC 456, released February 1, 2021 where the motion to strike the jury because of COVID delay was brought by the defendant.

[19] I would also recognize, as outlined in the factum of the defendant, that a judge alone trial raises the likelihood of a reserve decision. This could add, likely less than, the six months a Superior Court Justice is allotted to render his or her reasons for decision (before seeking an extension from the Chief Justice). This compares to a jury verdict where a decision is made in the hours following the conclusion of the trial.

[20] I conclude this factor is in favour of dismissal of the motion.

[21] Regarding the history of adjournments, the parties acknowledged this is the first trial date and the matter has not previously been adjourned. Again, this factor favours dismissal of the plaintiff’s motion.

Conclusion

[22] The plaintiff has not discharged its onus to show that the trial should proceed at this time without a jury or that the parties will be better served by the discharge of the jury. The plaintiff’s motion is dismissed.

[23] The plaintiff also raised the issue of barring the defendant from obtaining any other medical assessments. In this regard, the defendant agreed neither party will deliver any further expert reports for the purposes of a trial without the consent of the other side or leave of the court. A request for a consent or leave would only be made in the event of a material change in the plaintiff’s physical or psychological health or her employability.

[24] As a result, the trial date of March 22, 2021 is adjourned. The parties shall contact the trial coordinator to determine how and when a new trial date is to be scheduled.

Costs

[25] The defendant sought partial indemnity costs in the event of success and tendered a Costs Outline in the amount of $10,334.55 for fees inclusive of HST. This compared to the plaintiff’s Costs Outline claiming partial indemnity fees in the amount of $5,250.00 and thus $682.50 for HST. In the circumstances, although the defendant was successful, I would reduce its claim for costs to $5,932.50 inclusive of fees and HST payable in any event of the cause. This is in accordance with the principle contained in Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (at paragraph 26) to fix a fair and reasonable amount for the unsuccessful party to pay rather than the actual costs of the successful party.

Mr. Justice G. Dow

Released: March 1, 2021