Court File and Parties
Court File No.: CV-17-133793-00 Date: 2021-03-04 Superior Court of Justice – Ontario
Re: Nan Barikara by her Litigation Guardian Robin May, Plaintiff And: Baffour Faustina Kyei, Johnny O. Obeng and Robert A. Howard, Defendants
Counsel: T.P. Boland, for the Plaintiff T. Ozere, for the Defendants Kyei and Obeng K. Raddatz, for the Defendant, Howard
Heard: February 22, 2021
Reasons for Decision on Motion
Overview
1The Plaintiff brings this motion for an order (a) striking the jury notices pursuant to r. 47.02 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194; and (b) placing this matter on the Central East Region’s Civil Trial Sittings commencing May 17, 2021.
2Given that the Plaintiff has set the action down for trial, leave of the court is required: r. 48.04(1).
3The Defendant Howard takes no issue with respect to the Plaintiff’s request for leave, but opposes the relief being sought.
4The Defendants Kyei and Obeng take no position on this motion.
COVID-19
5The COVID-19 pandemic continues its stronghold on the world. On March 15, 2020, the Superior Court of Justice suspended all operations but for urgent matters. Over the latter part of 2020 efforts were made, where safe to do so, to reconvene in-person hearings, including jury trials.
6On January 12, 2021, the Province of Ontario declared a second provincial emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act, implementing a stay-at-home order, allowing persons to leave their home for essential purposes only.
7On January 13, 2021, by Order of the Chief Justice of the Ontario Superior Court of Justice, jury trials were suspended across the province until May 3, 2021, at the earliest.
8On February 8, 2021 our government moved to a regional approach to managing COVID-19. It has maintained the shutdown in the majority of public health regions, and is employing a region-specific approach to release health units from the shutdown measures only when appropriate.
9Some regions are experiencing greater success in lowering the transmission of COVID-19 and improving hospital capacity, such that they have transitioned back to the Green (Prevent) zone.
10As of March 1, 2021 Central East remains divided into the following zones: Yellow (Protect) [Peterborough], Orange (Restrict) [Haliburton Kawartha Pine Ridge, Northumberland], Red (Control) [York, Durham], or Grey (Lockdown) [Simcoe Muskoka].
11In Francisco v. Liu I struck a jury notice in light of the delays the pandemic will have on jury trials: (2021 ONSC 1032). That decision was informed by the January 13, 2021 Notice, as well as information garnered from the Regional Senior Judge (“RSJ”) and the triage judge in charge of civil litigation, to the effect that civil jury trials were not expected to resume until November 2021, at the earliest.
12On February 10, 2021 the RSJ issued a Notice to the Profession – Central East Region – May 2021 Civil Sittings List (“Notice”), confirming that only non-jury matters will be heard during the Spring Civil Sitting. The Notice supersedes the Running Trial List for the time period from May 17, 2021 to June 4, 2021.
13The Notice makes it known to litigants and the Bar that the court does not anticipate having the capability to conduct a civil jury trial until well into 2022.
14It follows that the state of jury trials in Central East is on even more perilous ground than in January and February, 2021.
15This is the harsh reality of the COVID-19 fallout, further underscoring the recognition by our Court of Appeal that local conditions will impact the choice of effective solutions when delivering timely justice (Louis v. Poitras, 2021 ONCA 49, at para. 3).
Background
16This action arises out of a November 2016 collision in which the 65-year old Plaintiff, who was a passenger, was catastrophically injured. Liability in respect of the Plaintiff is not at issue, although it is disputed as between the Defendants.
17Once a fully functioning, self-sufficient woman, the Plaintiff’s injuries have rendered her catastrophically impaired and virtually non-communicative. She requires 24-hour care and a range of support services, and has lived in hospitals, convalescent centres, and long-term care facilities since the collision.
18While the facilities are of excellent quality, the Plaintiff would like to move back to her own home, which she still owns. The costs for attendant care services at home exceed the maximum amount payable to her in accident benefits. Hence the Plaintiff’s desire for a trial as soon as possible: the funds she recovers will allow her to return home, and ensure she receives the care she needs.
19The Plaintiff has moved her action forward in an admirably efficient manner:
a. Statement of Claim issued December 12, 2017; b. Jury notice issued December 19, 2017; c. Statements of Defence, Crossclaims, and jury notices of the Defendants delivered by March 27, 2018; d. Examinations for discovery completed by September 26, 2018; e. Trial Record was passed on April 9, 2019, following which the Plaintiff began efforts to schedule a pre-trial; f. In April 2019 Defendants Kyei and Obeng served a life expectancy report; g. On or about October 15, 2019 the Plaintiff served a responding life expectancy report; h. By October 17, 2019 the Plaintiff had served all of her expert reports; i. Private mediation held October 18, 2019; j. The pre-trial, initially scheduled for October 18, 2019, was postponed for various reasons [1] and finally held on January 25 and 27, 2021; and k. On January 13, 2021 Defendants Kyei and Obeng served a future care costs report.
20The life expectancy reports paint a sombre picture. The collision compounded the Plaintiff’s pre-existing heart issues and, according to the defence expert, as of today’s date the Plaintiff may have as few as four years to live. The Plaintiff’s own life expectancy report is somewhat more hopeful, positing she could live at least another ten years.
Positions of the Parties
Plaintiff
21This is an exemplary matter to strike the jury notices, particularly in light of the Plaintiff’s desire to live out her remaining years as she sees fit. But for the delays after setting the matter down for trial, the action would have been tried by now, and she could already be back living in her home.
22The Plaintiff cannot afford to wait for justice which might come too late to be meaningful, and it is in the interests of justice that the matter be ordered to be heard during the Central East Trial Sittings, which begin May 17, 2021.
23Pre-Louis it was reasonable for motions judges to adopt a “wait and see” approach, in light of the cautiously optimistic Notices to the Profession that civil jury may return in the near future. This is no longer the case. The courts have waited, and the courts have seen. The only certainty, when it comes to jury trials, is their uncertainty.
Defendant Howard
24That civil jury trials may not be possible at present does not mean that the right to a trial by jury should be dispensed with wholesale. The “wait and see” approach is generally the preferred route, unless immediacy is warranted on the facts.
25If the court is inclined to strike the jury notice, the Defendant Howard suggests that the jury notice be conditionally struck, such that the matter proceeds as a non-jury trial, unless Central East is conducting jury trials when this case is called to trial.
26The Defendant Howard opposes an order that the matter be heard during the Spring sittings, as he is currently scheduled to conduct a 15-day trial in Central South starting May 10, 2021.
Legal Principles
27As I noted in Francisco, a party moving to strike a jury notice bears the onus of showing 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: Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), at para. 37.
28Justice Karakatsanis, writing for the panel in Hyrniak v. Mauldin, 2014 SCC 7, opened her decision by highlighting the importance of access to justice (para. 1):
Ensuring access to justice is the greatest challenge to the rule of law in Canada today […] Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
29Hyrniak was six years ago, and spoke to the culture shift required to move the emphasis away from conventional trials toward summary judgment, if warranted. This principled approach seems tailor-made for the current challenges facing Ontario courts in the wake of the COVID-19 pandemic. A similar culture shift is necessary to move from the conventional wisdom that the right to a jury trial is virtually unassailable.
30In this action, it is not only the defendant’s right to a jury trial which is at stake. The Plaintiff filed a jury notice as well.
31The decision in Louis underscored a judge’s inherent discretion to control proceedings (para. 26):
A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75.
32Justice Hourigan also notes in Louis that there is no “one size fits all” provincial solution concerning when jury notices should be struck (para. 3):
[l]ocal 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.
33Once jury trials can safely be accommodated in Central East, the imperative will devolve to tackling the backlog of criminal jury matters. Our RSJ has recently confirmed that the magnitude of this backlog is significant.
Discussion
34The COVID-19 pandemic represents an unusual set of circumstances, such that leave to bring the motion is granted.
35Motions to strike jury notices have proliferated in light of the pandemic. In addition to examining regional differences, judges have taken the particular circumstances of the parties into consideration when exercising their inherent discretion to strike jury notices.
36Jury notices have been struck in cases where the plaintiff is in ill health. For example, in Solanki v. Reilly, 2020 ONSC 8031, Nicholson J. found that the plaintiff’s circumstances (70 years of age, failing health) justified discharging the jury. Similarly, in Coban v. Declare, 2020 ONSC 7537, where the plaintiff had immediate attendant care needs, the jury notice was likewise struck.
37In these particular circumstances, having regard to the Plaintiff’s poor health and decreased life expectancy, justice to the parties will be better served by discharging the jury. However, the discharge need not be permanent.
38The Defendant Howard’s suggestion to conditionally discharge the jury is a sound one. If, when the matter is called, there are no civil jury trials running, the matter will be heard by a judge alone. If, however, civil jury trials are being conducted when the case is called to trial, the matter proceeds before a jury. This is a flexible, region-specific approach to maintaining each party’s substantive right to a jury trial, where possible.
39I am not inclined to order this matter be heard on the pending sittings, for two reasons. First, the Notice sets out the process for having matters placed on the Trial List, by way of a memorandum to the court. In order of priority, the list will be completed as follows:
a) All cases not reached on the November 2019 sittings; b) All cases from the May and November 2020 sittings, with preference to those cases which have been previously adjourned; c) All cases that were pre-tried from March 2020 to April 15, 2021, with priority given to the oldest cases; and d) Judicial discretion to expedite cases where deemed appropriate.
40I am confident the triage judge will view this an appropriate case to be expedited.
41Second, the Defendant Howard is conducting a trial in a different region beginning May 10, 2021. While there is the possibility of that matter settling, ordering this matter be heard during Central East’s three-week sittings may be difficult to accomplish.
42The wisdom of the jury notices being conditionally struck is that, if the matter cannot be reached on the Spring Civil Sittings, it can be traversed to the Central East Running Trial List, which will also constitute judge-alone trials for the foreseeable future.
Conclusion
43I am satisfied that for the Plaintiff, justice delayed may be justice denied. Immediacy is warranted on these particular facts, and the jury notices are conditionally struck.
Costs
44Both parties enjoyed success on the motion. In the circumstances, costs, if requested, are reserved to the trial judge.
CASULLO J.
Released: March 4, 2021
Footnote
1Allowing for the companion action [second passenger in vehicle] to be transferred to Newmarket; change in counsel; COVID-19.