COURT FILE NO.: CV-13-4864
DATE: 20210209
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Monica Mohan, Plaintiff
AND:
Hugh J. Howard, Defendant
BEFORE: The Honourable Justice Baltman
COUNSEL: A. Rouben, for the Plaintiff
J. Somerville, for the Defendant
HEARD: February 9, 2021 (Via Zoom conference)
E N D O R S E M E N T
The Issue
[1] The plaintiff moves to strike the jury notice on this matter.
[2] The action arises out of a motor vehicle accident that occurred on October 27, 2011. The pleadings were completed in December of 2015 and examinations for discovery were held in July 2016. The action was set down for trial in May 2018. A pre-trial conference was held on December 3, 2019, at which a trial date of January 4, 2021 was secured. The parties estimated that a jury trial of this action would require 9 to 11 days.
[3] The January 4, 2021 trial date was the first time this action was called to trial. There have been no previous trial adjournments.
[4] But for the pandemic, the parties are ready for trial. The Defendant has properly conceded that given these substantial and unexpected circumstances, leave should be given to the plaintiff to bring this motion.
[5] The plaintiff lives in British Columbia and recently became licensed to practise law there. She is seeking an articling position. She is anxious to move on with her life and career, without the delay and uncertainty of a jury trial in the horizon.
[6] On December 14, 2020 Chief Justice Morawetz issued a province wide Notice to the Profession extending the suspension of jury trials until February 1, 2021 at the earliest. On January 4, 2021, the parties appeared in Speak To Court before RSJ Ricchetti, who advised that there will be a “very” long delay before civil jury trials are reconvened in Peel region.
[7] Given the vagaries of this virus and the uncertainty of the vaccination process, it is impossible to predict when juries can safely reconvene in Brampton. It will most likely not be before the latter part of 2021, at the earliest.
[8] By contrast, and as I informed counsel during this hearing, based on local conditions, if the trial is before a judge alone, virtual trials can proceed anytime the parties are ready and hybrid trials can proceed from June 2021 onward.
[9] The Defendant does not oppose the relief sought by the Plaintiff on this motion. However, it argues that an Order striking the Jury Notice should be done on a conditional basis, following the “middle ground” approach taken in by Nicholson J. in Solanki v. Reilly, 2020 ONSC 8031. In that scenario, if a judge alone trial does not take place before jury trials are reinstated, then the defendant maintains the right to proceed with a jury.
Legal Framework
[10] Rule 47.01 of the Rules of Civil Procedure states that a party may “require” that issues of fact or damages be assessed by a jury, “unless” s. 108 of the Courts of Justice Act (CJA) or another statue suggests otherwise.
[11] Section 108(3) of the CJA provides that “On motion, the court may order that issues of fact be tried or damages be assessed, or both, without a jury.”
[12] The Ontario Court of Appeal has asserted that a civil jury trial is both a statutory and substantive right, which is not to be taken away lightly: Cowles v. Balac et al, 2006 CanLII 34916 (ONCA), at paras. 36-38, leave to appeal refused, [2006] S.C.C.A. No. 496. That same court, however, has identified that the key question for the motion judge is: will justice to the parties be better served by dismissing or retaining the jury?: Girao v. Cunningham, 2020 ONCA 260, at para. 162.
[13] As most recently stated by our Court of Appeal in Louis v. Poitras, 2021 ONCA 49, in responding to motions to strike a jury, two key principles must govern:
There is no single province wide solution to these challenges; trial judges must be given the discretion to respond to local conditions: paras. 3, 26
Delay is, in and of itself, a compelling factor for the courts to consider in deciding these motions: para. 22
Decision
[14] As noted above, all indications are that given the current conditions in Brampton a non-jury trial could proceed virtually at any time, and a hybrid trial anytime from June onward. And it is practically certain that a civil jury trial cannot take place until the latter part of 2021, at the earliest. Those factors favour striking the jury unconditionally.
[15] That said, even if the jury notice is struck, there may be currently unforeseeable circumstances that prevent the trial from proceeding in the near future. Depending on the reason, it may be unfair to the Defendant if, through no fault of its own, the trial ended up being adjourned to a date where jury trials were again underway.
[16] Consequently, I agree that the middle ground approach makes sense here, as it would achieve the Plaintiff’s goal of avoiding further delay caused by the Covid-19 pandemic in bringing the matter to trial, whilst also protecting the Defendant’s statutory and substantive right to a trial by jury in the event Brampton has resumed conducting jury trials when this action is called to trial.
[17] Implicit in that compromise is the expectation that the defence will actively and in good faith co-operate with the plaintiff in securing the earliest possible trial date, and not devise reasons to postpone the trial until such time as juries are back. In that regard, I note the following:
a) Defence counsel’s advice that other than conflicts in March 2021, she is ready to proceed with this trial;
b) Both counsel’s advice that they are “aiming toward” a trial in May or June of 2021;
c) Counsel’s agreement that the evidence of all witnesses (other than the parties) can be heard virtually;
d) Defence counsel’s undertaking to consider agreeing that the plaintiff, who resides in Vancouver and is pregnant, can testify by Zoom;
e) Counsel’s agreement that immediately upon receipt of this ruling, they will confirm the availability of their witnesses and arrange a teleconference with RSJ Ricchetti to set a trial date;
[18] In light of those factors, I order the following:
The jury notice filed by the defendant shall be conditionally struck so that this trial will proceed as a non-jury trial, unless Peel Region is conducting jury trials when this case is called to trial in which case the jury notice is automatically reinstated without the need for a further motion;
If a judge alone trial cannot be reached for any reason and jury trials are being conducted when the matter is recalled, then the defendant’s jury notice is automatically reinstated, without the need for a further motion;
This Order is without prejudice to the plaintiff’s right to bring a further motion to strike the revived jury notice if the non-jury trial does not proceed;
Immediately upon receipt of this ruling, counsel shall confirm the availability of their witnesses for trial in May or June of 2021, and arrange a teleconference with RSJ Ricchetti to set a trial date.
[19] Both parties wish to participate in a second pre-trial conference, which has not yet been scheduled. They may canvass potential dates with RSJ Ricchetti during their phone call.
[20] Given the compromise result, each party shall bear its own costs of this motion.
Baltman J.
DATE: February 9, 2021
COURT FILE NO.: CV-13-4864
DATE: 20210209
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Monica Mohan, Plaintiff
AND
Hugh J. Howard, Defendant
BEFORE: The Honourable Justice Baltman
COUNSEL: A. Rouben, for the Plaintiff
J. Somerville, for the Defendant
ENDORSEMENT
Baltman J.
DATE: February 9, 2021