Court File and Parties

COURT FILE NO.: CV-16-0226-00 DATE: 2021 03 03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Sauve and Doreen Sauve, Plaintiffs AND: Anthony Steele and Duff Contracting Ltd., Defendants

BEFORE: Doi J.

COUNSEL: Leigh Harrison, for the Moving Plaintiffs Tobin Horton and Dean Paspalofski, for the Responding Defendants

HEARD: February 25, 2021

Endorsement

Overview

[1] The ongoing COVID-19 pandemic is disrupting civil jury trials in Ontario. On January 12, 2021, the Government of Ontario declared another provincial emergency under ss. 7.0.1(1) of the Emergency Management and Civil Protection Act, RSO 1990, c. E.9, and implemented a stay-at-home order, effective January 14, 2021, for everyone to self-isolate at their place of residence with certain exceptions. By Notice to the Profession dated January 13, 2021, Chief Justice Morawetz of the Superior Court of Justice extended the suspension of jury trials in Ontario until May 3, 2021 at the earliest. Presently, it is unknown when civil jury trials will resume in Milton. The court is continuing to hear civil non-jury trials with in-person and virtual hearings.

[2] On February 25, 2021, I heard the Plaintiffs’ motion for leave under Rule 48.04(1) to bring this motion and an order under Rule 47.02 to strike the Defendants’ jury notice so the action may proceed to a judge-alone trial in Milton. The Plaintiffs claim that they will be prejudiced if the trial is delayed, and that striking the jury notice will serve the interests of justice by allowing the action to be tried on its merits in an expeditious and cost-effective way. The Defendants submit that their right to a jury trial is a substantive right that should not be interfered with lightly, and that it would be premature to strike their jury notice. In their submission, prudence favours the court taking a “wait and see” approach before they are deprived of their right to a trial of this action by jury.

[3] On March 1, 2021, I released a bottom-line decision granting leave for the Plaintiffs to bring this motion and granting their motion to strike the Defendants’ jury notice, with reasons to follow. In my view, justice to the parties will be best served by striking the jury notice so that the action may proceed to a non-jury trial at the upcoming March 22, 2021 trial sitting in Milton. These are my reasons for the decision on the motion.

Background

[4] This action arises from a motor vehicle accident that occurred on January 17, 2014 when the blade to the Defendants’ snow plough allegedly became ensnared in overhanging hydro wires. The wires were torn from the hydro pole and fell into the path of the Plaintiff vehicle, which ran into or over the wiring. The Plaintiffs are claiming damages for injuries sustained in the accident.

[5] On January 4, 2016, the Plaintiffs brought a statement of claim. On May 5, 2016, the Defendants delivered a statement of defence and jury notice. On March 17, 2017, the parties conducted examinations for discovery. On February 15, 2019, they attended a mediation.

[6] On August 20, 2019, a pre-trial conference was held before Justice Conlan who placed the action on the March 22, 2021 trial list at the Milton courthouse. The Plaintiff took steps to prepare for trial. Among other things, they obtained expert reports and readied their experts.

[7] By Notice to the Profession dated March 15, 2020, Morawetz C.J. announced the suspension of regular court operations as of March 17, 2020 to help contain the spread of the novel coronavirus. In turn, civil jury selection and civil jury trials were suspended until September 2020.

[8] From September 2020 to November 2020, jury trials that had been set to proceed were heard in Milton on a limited basis. However, the public health crisis from the pandemic worsened. On November 10, 2020, the court suspended new jury selection for new jury trials in Milton.

[9] On November 21, 2020, the court suspended new jury selection for new jury trials in all areas of the province, except those which the Government of Ontario identified as a “Green Zone” under the COVID-19 public health framework, until at least January 4, 2021. [^1] In keeping with the evolving public health situation, the court extended the suspension of new jury selection and trials until at least January 29, 2021. During this period, public health officials classified Halton Region as a “Grey Zone” and directed its residents to self-quarantine at home, with some exceptions, under public health lockdown measures. The Town of Milton is located within Halton Region and is subject to public health measures for the region.

[10] On January 13, 2021, the court suspended all jury trials until May 3, 2021 at the earliest. During this period, no new jury selections can proceed. It follows that a civil jury trial of this action cannot proceed in Milton during the March 22, 2021 trial sitting as previously scheduled. The earliest that a jury trial of this action could be heard is during the next civil trial blitz in Milton that is scheduled to start on October 4, 2021, provided that public health measures allow for civil jury selections and trials to proceed at that time.

[11] On February 16, 2021, the Region of Halton became a “Red Zone” following a decline in the number of reported cases of COVID-19 transmissions. As a result, an array of services and establishments reopened within the region. However, the Region of Halton continues to follow stringent public heath measures to contain the spread of COVID-19.

[12] On February 23, 2021, the parties attended a settlement conference before Justice Fowler Byrne who placed the action on the March 22, 2021 trial list for a judge-alone trial as a placeholder given this pending motion to strike the jury notice. In view of the length of the trial list, it was unclear to the parties whether a judge-alone trial of this action would be reached during the sitting.

Leave to Bring this Motion

[13] Pursuant to Rule 48.04(1), a party may not bring or continue a motion without leave after setting an action down for trial or consenting to an action being placed on a trial list.

[14] There are two (2) tests for granting leave under Rule 48.04(1): Johnson v. Brielmayer, 2021 ONSC 1245 at para 19; Louis v. Poitras, 2020 ONSC 5301 at para 22 (“Louis (S.C.)”), reversed 2020 ONSC 6907 (Div Ct), reversed and initial decision restored 2021 ONCA 49; Cowley v. Skyjack Inc., 2021 ONSC 1303 at para 22. The first test, which is the more established one, requires the moving party to show a substantial or unexpected change of circumstances after the action was set down for trial. The second more flexible test, which has been preferred in recent cases dealing with the COVID-19 pandemic, provides that leave may be granted in the interests of justice: Louis (S.C.) at para 22, citing J.A.L. Developments v. Residences of Springhill Inc., 2020 ONSC 2222 at para 69.

[15] On either test, I find that leave should be granted. Without question, the pandemic has caused a substantial and unexpected change of circumstances. Moreover, given the potential delay in proceeding to trial and the prejudice claimed by the Plaintiffs, I am satisfied that their motion should be heard in the interests of justice.

Legal Principles

[16] The right to a civil jury trial is a substantive right that is not to be interfered with without just cause or cogent reasons: Cowles v. Balac (2006), 83 OR (3d) 660 (CA) at para 36, leave to appeal refused [2006] SCCA No 496; King v. Colonial Homes Ltd., [1956] SCR 528 at 533. A party’s entitlement to a jury trial is qualified, and is subject to the court’s power to order the action to proceed without a jury: ss. 108(3) of the Courts of Justice Act, RSO 1990, c. C.43; Rule 47.02; Louis v. Poitras, 2020 ONCA 49 (“Louis (CA)”) at para 17, citing Cowles at paras 38-39. On a motion to strike a jury notice, the court has the power to determine whether justice to the parties will be better served by the discharge of the jury: Ibid; Cowles at para 37; Johnson at paras 22-23.

[17] Although the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality: Girao v. Cunningham, 2020 ONCA 260 at para 171. Among other things, a party seeking to strike a jury notice must show that there are features in the conduct of the trial which merit the discharge of the jury: Cowles at para 37. Brown J.A. in Belton v. Spencer, 2020 ONCA 623 at para 26, citing Cowles at paras 32 and 36-39, described the test for striking a jury notice in the following terms:

The substantive right to a civil jury trial, upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac, 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. 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.” 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.”

[Citations omitted and emphasis added]

[18] Speaking for the Court of Appeal in Louis (C.A.) at para 3, Hourigan J.A. made this observation about the challenges that courts face as a result of the ongoing pandemic:

There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. [Emphasis added]

Parties Positions

[19] The Plaintiffs submit that a judge-alone trial in the Milton blitz starting on March 22, 2021 is within reach, and would be a more practical alternative than waiting until the Fall of 2021 in the hope that a jury trial might begin then or, if not, at some later underdetermined date. Although Halton Region has emerged from a public health lockdown and is now regarded as a less restrictive zone under Ontario’s pandemic response framework, the Plaintiffs submit that there is no certainty that the state of the pandemic will allow for civil jury trials to be heard in Milton during the Fall 2021 trial sitting or that this action would be reached by then.

[20] The Plaintiffs submit that a delay of the trial would be prejudicial to their interests. Pointing to the expert reports which they have delivered, they submit that longer delays will make it more likely that they will need to incur the added cost of updating their expert reports. In addition, they submit that the longer their trial is delayed, the more their claim for Mr. Sauve’s income loss will continue to erode by virtue of ss. 267.5(1) 2 and 3 of the Insurance Act, RSO 1990, c. I.8, which provide that 30% of income loss that is suffered before the trial of an action is not recoverable. The accident that triggered this action occurred on January 17, 2014, over seven years ago. Further delay in getting to trial will continue to erode and undermine their income loss claim, which can never be restored.

[21] The Defendants urge the court the adopt a “wait and see” approach to balance the respective rights of the parties. They submit that their right to a trial by jury is a substantive one that should not be lightly interfered with. Pointing to the efficient progress of this action, which to date has never been adjourned or delayed, they submit that this is a central factor for the court to consider on this motion. Noting that Halton Region has emerged from a lockdown, and that public health measures to contain COVID-19 seem to be causing virus transmissions to trend downward, they optimistically submit that all indications generally support the resumption of civil jury trials in Milton by the Fall of 2021.

[22] The Defendants submit that the Plaintiffs have not provided any evidence to show that their expert reports would have to be updated. They also caution that the Plaintiffs’ income loss claim has not yet been proven, and that any projections based on the income loss claim merely reflect the opinions of the Plaintiffs’ income loss expert. Further, the Defendants note that several steps to prepare for trial remain outstanding, including, but not limited to, serving requests to admit, notices of intention, documents briefs and will say statements.

Analysis

[23] As Hourigan J.A. aptly noted in Louis (C.A.) at paras 1 and 2, the civil justice system is facing a crisis that is unprecedented:

[1] The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.

[2] Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court’s injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. [Emphasis added]

[24] Given the prevailing crisis to the civil justice system caused by the COVID-19 pandemic, and the culture shift mandated to effectively dispense justice, I find that the jury notice should be struck so that this action may proceed to trial in the near future. In my view, justice to the parties is best served by having the case tried without a jury.

[25] This action is aging. The motor vehicle accident that gave rise to the claim took place over seven years ago. At a 2019 pre-trial conference, the action was set down for trial in March 2021. The parties are largely ready for trial. It is unknown when a civil jury trial may be heard.

[26] Having inquired with the Central West Regional Senior Justice, I understand that civil jury trials at the Milton courthouse will not resume until the October 4, 2021 trial blitz at the very earliest, provided that public health measures allow jury selections and trials to resume at that time. Given the unpredictable nature of the ongoing COVID-19 pandemic and its consequential public health measures, it is unclear whether jury trials actually will be heard by then. The court’s need to prioritize criminal and family matters over civil jury trials and the length of the rolling trial list raise additional uncertainty as to when a jury trial of this action will proceed. As well, the Milton courthouse is undergoing renovations and will not re-open before the Fall of 2021 at the earliest. Given all of these circumstances, it is unknown when a jury trial of this action will be heard.

[27] In contrast, I am advised that the court likely could accommodate a non-jury trial of this action during Milton’s upcoming trial blitz starting on March 22, 2021, which the parties estimate will require 12 days of trial to complete.

[28] The Plaintiffs submit that delaying the trial will prejudice them by increasing the likelihood that they will incur added costs to update their expert reports, and by eroding their loss of income claim by virtue of ss. 267.5(1) 2 and 3 of the Insurance Act. The Defendants submit that the Plaintiffs’ position on delay-related prejudice is speculative and based on claims that are unproven. However, a delay in obtaining a civil jury trial date can, by itself, constitute prejudice and justify striking a jury notice: Louis (C.A.) at para 22, citing Louis v. Poitras, 2020 ONCA 815 (“C.A. Motion”) at para 33; Francisco v. Li, 2021 ONSC 1032 at para 26. In light of the statutory limit on income loss damages under ss. 267.5(1) of the Insurance Act, I am satisfied that deferring the adjudication of this case will erode the Plaintiffs’ loss of income claim and cause non-compensable and unrecoverable loss that will be prejudicial: Louis (C.A. Motion) at para 57.

[29] The Defendants urge the court to adopt a “wait and see” approach. Essentially, because this action has progressed efficiently up to now, they submit that incurring some delay to await a jury trial in the Fall of 2021 or sometime thereafter would not be unreasonable. Respectfully, I am not persuaded by this submission. At this time, it is unknown when a jury trial of this action could be heard. In contrast, a non-jury trial could be heard in the fairly near future. By advocating a “wait and see” approach at this time, the Defendants effectively seek to adjourn the trial for an unknown or indefinite period that cannot be quantified in the hope that a jury trial might possibly proceed in the Fall of 2021 or sometime later. In my view, the prejudice to the Plaintiffs from the indeterminate delay to obtain a jury trial outweighs the right of the Defendants to have the action tried by a jury: Louis (C.A.) at para 33; Higashi v. Chariot, 2020 ONSC 5523; Belton v. Spencer, 2020 ONSC 5327 at para 44.

[30] I am mindful that a “wait and see” approach, which is not a rule of law, may be appropriate in certain cases depending on local conditions and other factors: Cowles at para 71. But on the facts of this case, I find that now is not an appropriate time for a wait and see approach. I am satisfied that this action can and should be adjudicated in the near future, which requires the jury notice to be struck. In my view, the right to a jury trial should yield in this case to allow for an expeditious determination of the action on its merits.

[31] The Defendants observe that public health officials in Halton Region recently eased some of the public health restrictions for containing the transmission of COVID-19. Even so, there is no evidence that these developments will properly predict the likelihood that jury trials will resume in Milton in the foreseeable future. The Defendants submit that recent public health measures, including the introduction of a province-wide vaccination program, seem to forecast a trend which suggests that civil jury trials could resume in Milton by the Fall 2021. However, from the record on this motion, I see no evidence-based reason to find that these factors can meaningfully predict how the pandemic-related public health crisis will unfold in Milton, or elsewhere for that matter. In my view, there is no reliable way to forecast when civil jury trials in Milton likely will resume.

[32] The Defendants correctly note that the parties have not completed certain steps to prepare for trial, such as serving requests to admit, notices, briefs of documents and will-say statements. However, I accept that the parties can deal with these matters in relatively short order. These are not insurmountable barriers. Apart from this, the parties are ready for trial.

[33] In light of the foregoing, I am satisfied that allowing further delay in bringing this action to trial would be contrary to the raison d’être of the civil justice system, captured in Rule 1.04(1), to facilitate timely adjudication and the most expeditious determination of every civil proceeding on its merits: Louis (C.A.) at para 22, approving Louis (C.A. Motion) at para 33. To this end, I fully adopt the reasoning of Sanfilippo J. in Johnson at para 42 as follows:

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.

See also Louis (C.A.) at para 2; Louis (C.A. Motion) at paras 43-44.

[34] The motor vehicle accident that gave rise to the action occurred over seven years ago. The parties are largely ready for trial. A party’s right to a jury trial is not absolute, and may give way to the overriding interests of the administration of justice and issues of practicality: Louis (C.A.) at para 24. Ultimately, the court must strive to secure the just and most expeditious determination of every civil proceeding on its merits.

[35] Based on the foregoing, I am satisfied that this is an appropriate case where the trial of this action should proceed without a jury. I hereby order that the jury notice is struck so this action may proceed to a judge-alone trial in Milton at the upcoming March 22, 2021 trial sitting.

Outcome

[36] The Plaintiffs were successful on this motion and are entitled to their costs. I have carefully reviewed their costs outline and submissions, along with those of the Defendants. In my view, the costs sought by the Plaintiffs on a partial indemnity basis are fair and reasonable and reflect an amount that the Defendants should reasonably expect to pay. Accordingly, I award costs to the Plaintiffs of $5,224.85, inclusive of taxes and disbursements, payable forthwith.

[37] Based on the foregoing, I order the following: a. The Plaintiffs are granted leave to bring this motion to strike the Defendants’ jury notice; b. The jury notice in this action is hereby struck; and c. The Plaintiffs are awarded costs of this motion, fixed in the all-inclusive amount of $5,224.85, which the Defendants shall pay forthwith.

Doi J. Date: March 3, 2021

[^1]: Under Ontario’s provincial COVID-19 response framework, there are five (5) zones of public health measures: i) Green (“Prevent”); ii) Yellow (“Protect”); iii) Orange (“Restrict”); iv) Red (“Control”); and v) Grey (“Lockdown”): https://www.ontario.ca/page/covid-19-response-framework-keeping-ontario-safe-and-open.