COURT FILE NO.: CV-17-4379-00
DATE: 2021 03 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Markandu Sivagnanasuntharam, Plaintiff
AND:
Michael Wong and 1488218 Ontario Limited o/a Volvo of Unionville, Defendants
BEFORE: Doi J.
COUNSEL: Steven M. Polak, for the Plaintiff
Greg Specht, for the Defendants
HEARD: March 12, 2021
ENDORSEMENT
Overview
[1] This is a personal injury action that arises from a motor vehicle accident that occurred on May 5, 2017. The action was scheduled for a jury trial in Brampton in the upcoming trial sitting that will begin on May 10, 2021. However, due to the ongoing COVID-19 pandemic, jury trials are suspended at this time.
[2] The Plaintiff has moved for an order to strike the Defendants’ jury notice and to have the action heard as a judge-alone trial. Having set the action down for trial, the Plaintiff requires leave to bring his motion. He claims that he will be prejudiced by any delay in getting to trial, and submits that striking the jury notice will permit the action to be tried expeditiously and serve the interests of justice. The Defendants claim to not be ready for trial. By cross-motion, they seek to adjourn the trial to allow them to conduct defence medical examinations and prepare expert medical and accounting reports.
[3] For the reasons that follow, I find that the jury notice should be struck to allow the action to be tried by a judge alone during the May 2021 sitting. The Plaintiff will face irredeemable prejudice if the trial is delayed due to the operation of statutory limits to his claims for damages. In my view, he should not have to incur this prejudice because the Defendants did not diligently seek to arrange for defence medical examinations or expert reports. There is no evidence to suggest that the Defendants cannot obtain expert medical opinions without having examinations, or that they cannot get expert reports before the upcoming trial sitting. On balance, I am satisfied that the just result is to allow the action to proceed to a judge-alone trial in the upcoming sitting.
Background
[4] On May 5, 2017, the Plaintiff was involved in a motor vehicle accident. On October 12, 2017, he commenced this action by statement of claim. The Plaintiff seeks $1.4 million in damages that he allegedly suffered from the accident. On February 21, 2018, the Defendants delivered their statement of defence and jury notice.
[5] On May 31, 2018, the parties completed examinations for discovery.
[6] On August 16, 2018, the Plaintiff delivered a trial record to set this action down for trial.
[7] On October 1, 2018, the parties filed a joint Certification Form to Set Pre-Trial and Trial Dates. On the form, the Defendants stated that they would call two expert witnesses and produce their expert reports in accordance with the Rules of Civil Procedure. Rule 53.03 requires a party who intends to call an expert witness at trial to produce the expert’s report prior to attending a pre- trial conference. However, the Defendants have not obtained or served any expert reports.
[8] The parties arranged to attend a mediation session on February 11, 2020. On October 5, 2019, the Plaintiff’s wife, Janani Sivagnanasuntharam (the “FLA Plaintiff”), served her statement of claim in CV-19-1857-00 (the “FLA action”) on the Defendants. The FLA Plaintiff seeks $250,000.00 in damages under the Family Law Act and $700,000.00 in other special damages arising from the subject accident. As a result of the new FLA action, the parties cancelled their mediation and arranged for the FLA Plaintiff to be examined for discovery on November 18, 2019.
[9] On June 18, 2019 and October 17, 2019, the Plaintiff delivered his answers to undertakings. On January 14, 2020, the FLA Plaintiff delivered her answers to undertakings. The Defendants did not seek further answers or bring any undertakings motions and do not assert that undertakings are unfulfilled. The Plaintiff’s accident benefits file remains open and he continues to receive ongoing care from psychiatrist Dr. Ugwunze and psychotherapist Ms. Sundara. As part of his ongoing disclosure obligation, he has produced updated records from his treatment sessions with them.
[10] On February 12, 2020, the parties attended a pre-trial conference before Master Graham. The Plaintiff’s pre-trial brief included a psychiatric report by Dr. Ugwunze, psychotherapy records from Ms. Sundara, and the Plaintiff’s expert income loss report. In their pre-trial brief and during the pre-trial conference, the Defendants stated that they were not ready for trial because defence medical reports and an accounting report were needed but not yet obtained. They also advised that productions were being completed, that transcripts were available but not yet ordered, and that they intended to bring a motion for the FLA action to be tried with the main action. Master Graham ordered the FLA action (CV-19-1857-00) to be tried with the main action (CV-17-4379-00) and scheduled the matter for a 12 to 14 day jury trial during the May 10, 2021 trial blitz in Brampton.
[11] After the pre-trial conference, the Defendants did not request any records until October 23, 2020 when they asked for 2019 tax returns and other income information. The Plaintiffs gave some responsive information on November 11, 2020, delivered the tax returns on November 20, 2020, and gave additional responsive information on December 15, 2020.
[12] On November 11, 2020, the Defendants asked the Plaintiff for updated medical records. The Plaintiff asked Dr. Ugwunze for his clinical notes and records, and followed up with him on January 18 and 26, February 2, 9, 16 and 23, and March 2, 2021. On January 20, 2021, the Plaintiff produced Ms. Sundara’s updated clinical notes and records. On January 29, 2021, he advised the Defendants that there were no updated surgical records and that other records had been requested.
[13] On February 16, 2021, the parties attended assignment court before Justice Daley who advised that civil jury trials in Brampton would not go ahead in 2021. In turn, the Plaintiff advised of his intention to move to strike the Defendants’ jury notice. The Defendants indicated that they were not ready for trial because they needed to obtain defence expert reports. Daley J. declined to remove this matter from the May 2021 trial list.
[14] The record shows that the Defendants did not make any efforts to arrange a defence medical examination or to obtain defence expert reports until after the Plaintiff served his notice of motion to strike the jury notice on February 26, 2021.
[15] On March 1, 2021, the Defendants attempted to book a defence medical examination with psychiatrist Dr. Bruun-Meyer but discovered that he had retired in 2019. On March 2, 2021, the Defendants contacted psychiatrist Dr. Hershberg to book a defence examination but learned that he is unavailable to conduct an assessment before July 2021.
[16] On March 3, 2021, the Defendants asked the Plaintiff to attend an in-person defence medical examination with orthopaedic surgeon Dr. Zarnett on March 24, 2021. Given the late request, the Plaintiff declined to attend the examination due to his concern that doing so might jeopardize his ability to be ready for trial by the May 10, 2021 sitting. As the Defendants did not indicate when Dr. Zarnett’s expert report would be released, the Plaintiff did not know when the report would be ready or whether he would have an adequate opportunity to obtain a responding expert report before the trial sitting.
[17] On March 3, 2021, the Defendants served their cross-motion for an order to adjourn the jury trial and to require the Plaintiff to attend defence medical assessments with an orthopaedic expert and with a psychiatric or psychological expert.
[18] The Defendants gave no evidence of their efforts to obtain an expert economic loss report, and did not indicate how long it would take to prepare one.
Leave under Rule 48.04(1)
[19] Leave is required under Rule 48.04(1) for a party to bring or continue a motion after setting an action down for trial. The Defendants did not oppose the Plaintiff’s request for leave to move to strike the jury notice, which was a reasonable concession. Without question, the pandemic has led to a substantial and unexpected change of circumstances that has raised issues of trial delay that warrant a hearing of the motion in the interests of justice: Cowley v. Skyjack Inc., 2021 ONSC 1303 at para 22. As such, I find that leave should be granted for the Plaintiff to bring his motion.[^1]
Legal Principles
[20] 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), 2006 CanLII 34916 (ON CA), 83 OR (3d) 660 (CA) at para 36, leave to appeal refused [2006] SCCA No 496. However, a party’s entitlement to a jury trial is qualified and 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; Cowles at paras 38-39. On a motion to strike a jury notice, the court may decide whether justice to the parties is better served by discharging the jury: Cowles at paras 37-39; Johnson at paras 22-23. Although a party’s right to a jury trial is fundamental, it is not absolute and may yield to practicality: Girao v. Cunningham, 2020 ONCA 260 at para 171.
[21] 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]
[22] Given the nature of the ongoing COVID-19 pandemic, local conditions will necessarily impact the choice of effective solutions. As such, the court will consider local conditions in exercising its discretion to ensure the timely delivery of justice: Louis (C.A.) at para 3.
[23] The ongoing COVID-19 pandemic has created an unprecedented crisis for the civil justice system which has prompted a call for no less than a cultural shift to ensure justice for litigants and preserve the integrity of the justice system:
[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 Hyrniak 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]
Louis (C.A.) at paras 1 and 2.
[24] The court may order a party to undergo an examination by one or more health practitioners: ss. 105(2) of the Courts of Justice Act, RSO 1990, c. C.43; Rule 33.02 (Order for examination). The party seeking to examine another party must adduce sufficient evidence to show why the examination is necessary: Martinez v. Dublin, 2018 ONSC 2619 at para 7; Bonello v. Taylor, 2010 ONSC 5723 at para 16; Fromm v. Rajani, 2009 CanLII 46176 (ONSC) at para 9. Ultimately, the issue for consideration is whether the party seeking the order has shown that the examination is required to ensure that the proceedings are fair: Martinez at para 7.
Position of the Parties
[25] The Plaintiff seeks a judge-alone trial at the upcoming trial blitz in Brampton starting on May 10, 2021. Although Peel Region emerged on March 8, 2021 from a stay-at-home order made under the Emergency Management and Civil Protection Act, RSO 1990, c. E.9, it remains under a public health lockdown as the region has seen, particularly in Brampton, some of the highest rates of COVID-19 infections in the province. In light of the prevailing uncertainty with the evolving public health situation, the Plaintiff submits that it is unclear when civil jury trials will resume in Brampton. In the circumstances, he submits that having this action tried by a judge alone is a more practical and just alternative to waiting indefinitely in the hope that a jury trial might be conducted at some future undetermined point.
[26] The Plaintiff submits that a delay of the trial will cause him prejudice. The longer his trial is delayed, the more his statutory deductible on general damages and the floor to which that deductible applies will continue to increase to his detriment: ss. 267.5(7) of the Insurance Act, RSO 1990, c. I.8. Moreover, the longer the delay in getting to trial, the more the Plaintiff’s income loss claim will continue to erode as 30% of any income loss suffered before trial is not recoverable: ss. 267.5(1)2 and 3 of the Insurance Act. In light of this, the Plaintiff submits that any delay in proceeding to trial will cause irreparable prejudice to his claims.
[27] The Defendants claim that an adjournment of the trial is necessary as they require time to obtain expert reports which are needed to ensure trial fairness. Among other things, they submit that the Plaintiff’s injuries needed time to crystallize before their full extent could be known and properly assessed. As the Plaintiff quickly advanced his claim without any delay or adjournments, they submit that the efficient progress of the action is important to consider in determining their request for an adjournment of the trial.
[28] Claiming that the action is not ready for trial, the Defendants submit that the Plaintiff’s motion to strike the jury notice is premature. They submit that the trial should be adjourned so that defence medical examinations may be held, a defence income loss expert may be retained, and corresponding expert reports may be delivered. They also submit that public health measures are trending in a fashion which suggests that civil jury trials may resume in January 2022 with only modest delay from the original trial date in this matter. Ultimately, the Defendants argue that the Plaintiff has failed to satisfy his onus to show that justice to the parties is best served by discharging the jury, and they urge the court to follow a “wait and see” approach before deciding whether to strike the jury notice.
Analysis
[29] On the facts of this case, I am satisfied that granting an adjournment of the trial to allow the Defendants to further prepare for trial would not serve the interests of justice. In my view, the jury notice should be struck to allow this action to be tried by a judge alone during the upcoming May 2021 sitting in Brampton.
[30] In general, a defendant in a personal injury action is entitled to examine a plaintiff who puts their physical or mental condition at issue: Amorim v. Beluhoff, 2017 ONSC 4860 at para 7. This is typically done in response to a plaintiff’s expert report, which implicates principles of trial fairness: Bonello at para 15. However, the right to examine is not absolute and must be exercised with reasonable diligence: Ismail v. Ismail, 2018 ONSC 6489 at para 27; Matic v. Timpano, 2019 ONSC 1392 at para 10, Kendall v. Sirard, 2007 ONCA 468 at para 41. Before directing a plaintiff to submit to a medical examination, the court must consider, among other things, whether the examination is warranted and legitimate, whether it will cause any delay in proceeding to trial, and whether the other party will incur any prejudice from the examination: Bonello at para 16; Comfort
v. Dimichele, [1997] OJ No 5170 (Gen Div) at para 6. Ultimately, the overarching consideration is whether the party seeking the order has established that the medical examination is required to ensure that the proceedings are fair: Martinez at para 7.
[31] Having regard to the totality of the evidence, I am not convinced that the trial should be adjourned to allow the defence to conduct medical examinations of the Plaintiff at this time. The Plaintiff’s injuries and underlying medical condition were always part of his claim from the outset of this action, and he served his expert medical and income loss reports before the pre-trial conference on February 12, 2020 when this action was set down for trial in the May 2021 sitting. During the pre-trial conference, the defence indicated that it was not ready for trial because defence medical reports and an accounting report were required but not yet obtained. However, for reasons that are unclear, the Defendants did not diligently seek to obtain these reports. In my view, their lack of trial readiness is solely attributed to themselves. As such, this case is distinguishable from others where the lack of readiness for trial was attributed to an opposing party: e.g., Azaria v. Oldford, 2020 ONSC 7952 at paras 45-48.
[32] Following the pre-trial conference, the Defendants waited until October 23, 2020 before asking the Plaintiff for 2019 tax returns and other income-related information. Responsive information was provided on November 11 and 20, 2020 and December 15, 2020. There is no indication that the Defendants required anything further to obtain their own accounting or income loss report. However, the record shows that the defence did not seek to obtain one.
[33] Despite having the Plaintiff’s orthopaedic expert report before the February 12, 2020 pre- trial conference, the Defendants did not ask the Plaintiff to attend a medical examination or seek an expert orthopaedic report until after his motion to strike the jury notice was served on February 26, 2021. Although the Defendants claim that the Plaintiff’s injuries required some time to crystallize before a proper medical assessment by their orthopaedic expert could be performed, there is no evidence to support this position. There is no indication that the Plaintiff could not have attended a defence medical examination earlier, and I see no new or recent developments to justify a defence medical examination at this time. Apart from a bald assertion by lead counsel for the Defendants that a defence examination would provide “essential evidence” for trial, there is no basis to find that an examination is necessary in order for the defence to have an expert orthopaedic opinion for use at trial. In my view, a defence medical examination could and should have been requested much sooner if the Defendants had wanted one.
[34] The Defendants state that they recently obtained certain clinical psychotherapy records from Ms. Sundara in January 2021 and psychiatric reports from Dr. Ugwunze in early March 2021. However, the Plaintiff previously disclosed clinical records from Ms. Sundara and a psychiatric report from Dr. Ugwunze prior to the February 12, 2020 pre-trial conference. The defence also knew from medical records disclosed in August 2019 that Ms. Sundara and Dr. Ugwunze were treating the Plaintiff. As they both continued to treat the Plaintiff, their medical records were produced as part of his ongoing disclosure obligation.
[35] Relying on a November 6, 2020 report from Ms. Sundara which advised that, “[f]rom September 2019, [the Plaintiff] showed marked improvement with his anxious moods” and that his “trauma triggers had decreased from severe to a range between mild-moderate,” lead counsel for the Defendants claims in her affidavit that the Plaintiff’s psychological state has fluctuated since his May 31, 2018 examination for discovery which is said to raise issues about his mental health. In turn, the Defendants submit that a psychiatric or psychological examination of the Plaintiff is warranted. In my view, however, this information does not describe an unexpected change to the Plaintiff’s medical condition but instead gives information that is more in the nature of an ongoing discussion of matters that previously were known about his health. There is no suggestion that the defence will not be able to obtain an expert psychiatric or psychological opinion without a medical examination based on this information, or that the requested medical examination is necessary for the defence to adequately answer his evidence at trial.
[36] In light of the foregoing, I find that the Defendants have not satisfied their onus to show that the proposed medical examinations of the Plaintiff are necessary: Martinez at para 9. In my view, it is open for the Defendants to retain medical experts to review the record, prepare expert reports about the Plaintiff’s health in response to his claim, and seek leave for their experts to testify at trial: Martinez at para 8; Goodridge v. Corken, 2004 CanLII 34065 (ONSC) at para 9; Fromm at paras 14-15.
[37] At this relatively late stage of the proceedings, the Plaintiff objects to attending any defence medical examinations as doing so would jeopardize his ability to be ready for trial at the upcoming sitting starting on May 10, 2021. The Defendants did not indicate when Dr. Zarnett could deliver his expert orthopaedic report if the Plaintiff attended the proposed examination on March 24, 2021. As such, and depending on when Dr. Zarnett’s report is produced, the Plaintiff submits that he may be unable to provide a responding expert orthopaedic report. Due to Dr. Hershberg’s limited availability, the Defendants also advised that a defence psychiatric examination could not be scheduled before July 2021.
[38] The Plaintiff submits that any delay in getting to trial, whether to attend a defence medical examination or for other reasons, will cause him prejudice by irreparably eroding his claim for damages. Given the statutory deductible under ss. 267.5(7) of the Insurance Act and the statutory limit under ss. 267.5(1) of the Insurance Act for recovering income loss damages, I accept that adjourning the trial will irreparably erode the Plaintiff’s claims and cause him non-compensable prejudice: MacKenzie v. Pallister, 2021 ONSC 1840 at para 12; Louis (C.A. Motion) at para 57.
[39] In deciding whether the Plaintiff should attend the medical examinations requested by the Defendants, the court must balance their right to a fair opportunity to respond to his medical evidence against the right of the Plaintiff to not be prejudiced by a late defence motion. Timeliness is a factor for the court to consider in determining the interests of justice: Ismail at para 27. An order under ss. 105(2) of the Courts of Justice Act to attend a first medical examination may be denied because of a moving defendant’s lack of diligence: Ibid; Matic at para 10; Kendall at para 41; Vassallo v. Piccinato, 2008 CanLII 52620 (ONSC) at para 11; Chew v. Munoz, 2016 ONSC 1511 at para 17.
[40] Having regard to the conduct of this action, I am unable to see a legitimate reason or explanation for the Defendants’ delay in seeking the defence medical examinations. In my view, the Defendants clearly left the matter of the medical examinations much too late, either due to a lack of diligence or inadvertence. The Plaintiff delivered his expert reports prior to the pre-trial conference on February 12, 2020 when this matter was set down for trial in May 2021. Although the Defendants advised in a court filing that they would deliver their expert reports in accordance with the Rules, they chose to disregard Rule 53.03(2) and not deliver them. On this point, I share C. Campbell J.’s view in Goodridge at para 11 that it should only be in extraordinary circumstances that the court grants a defence motion to compel a plaintiff to attend a medical examination where the defence chose to not seek an examination before a pre-trial conference.
[41] As mentioned earlier, the Defendants did not adduce evidence to establish that medical examinations are necessary to obtain their expert reports. It follows that the Defendants may retain medical experts to prepare expert reports based on a review of the record, which seems to contain a fair amount of medical evidence. There is also no basis to find that the Defendants will be unable to retain an expert to prepare a defence income loss opinion. In light of this, I see no basis to believe that the Defendants will be unduly prejudiced if the trial is not adjourned. In contrast, if the trial is delayed, I am satisfied that the Plaintiff will face non-compensable prejudice due to the statutory deductible on general damages and the statutory limit for the recovery of pre-trial income loss. As such, I find that the prejudice to the Plaintiff would outweigh any disadvantage to the Defendants which the defence brought upon itself. From the record, I am satisfied that it would be unfair to adjourn the trial and require the Plaintiff to suffer non-compensable prejudice due to the defence’s lack of diligence or inadvertence.
[42] As a result of the ongoing COVID-19 pandemic, the Chief Justice of the Superior Court of Justice suspended jury trials in Ontario and indicated that jury trials will not resume in Central West Region until June 7, 2021 at the earliest, provided that public health measures allow jury selection and jury trials to resume at that time.[^2] That being said, given the priority to criminal jury trials, civil jury selections and trials are unlikely to occur in 2021 as Daley J. advised the parties at assignment court on February 16, 2021.
[43] Recently, the province entered a third wave of COVID-19 with a rising caseload featuring more contagious new variants of the virus. Peel Region continues to see some of the highest rates of COVID-19 transmissions in the province, particularly in the City of Brampton. At this time, public health officials are unable to predict how severe this new pandemic wave may be.
[44] Province-wide vaccinations continue to progress, and Peel Region emerged from the province’s emergency stay-at-home order and entered the “lockdown” level in the provincial COVID-19 response framework on March 8, 2021. In view of this, the Defendants submit that that the pandemic may be in a downward trend that might allow jury trials to resume in Brampton by the next January 2022 trial sitting. In turn, they urge the court to follow a “wait and see” approach by awaiting a possible jury trial in January 2022 before deciding whether to strike the jury notice. However, there is no evidence that recent trends can be used to meaningfully predict how the pandemic will unfold or when jury trials will likely resume in Brampton. Regrettably, the public health implications from the ongoing pandemic are complex and their impact on court operations in Brampton is difficult to predict at this time. Moreover, the court’s need to prioritize criminal and family trials over civil jury trials and the length of the rolling civil jury trial list has added further uncertainty in trying to predict when this matter may proceed to a jury trial.
[45] From my inquiries, I am confident that the court likely could accommodate a non-jury trial of this matter during the upcoming Brampton sitting in May 2021, which will probably require less than the 12 to 14 days that the parties had estimated for a jury trial of the matter.
[46] By suggesting a “wait and see” approach, the Defendants essentially seek to adjourn the trial for an unknown or indefinite period in the hope that a jury trial might possibly proceed in January 2022 at the earliest. Noting the efficient progress of this action to date, the Defendants submit that incurring some delay to await a jury trial in January 2022 would not be unreasonable in the circumstances of this proceeding.
[47] In certain cases, taking a “wait and see” approach, which is not a rule of law, may be appropriate depending on local conditions and other factors: Cowles at para 71. However, on the facts of this case, I am not persuaded that a wait and see approach should be followed at this time. 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. Given the operation of the statutory deductible and income loss limits to the Plaintiff’s claim, I find that an indeterminate delay in getting to trial would unduly erode his claim and cause non-compensable prejudice that outweighs the Defendants’ right to a jury trial. The prejudice to the Plaintiff’s claim distinguishes this case from others in which financial prejudice to a claim was not associated with a delay in getting to trial: e.g., S.M. v. Longo, 2021 ONSC 1348 at para 14.
[48] Importantly, the parties may have access to justice, albeit without a jury, by proceeding to trial in the upcoming sitting instead of facing the uncertainty of not knowing whether a jury trial could proceed in January 2022 or at some later point. In the circumstances, I am satisfied that the right to a jury trial should yield to allow for an expeditious determination of the action on its merits. In arriving at this finding, I am satisfied that delaying the trial of this action would be contrary to the raison d’être of the civil justice system to facilitate timely adjudication and the most expeditious determination of every civil proceeding on its merits: Louis (C.A.) at paras 2 and 22; Louis (C.A. Motion) at paras 33 and 43-44; Johnson at para 42.
Outcome
[49] Based on the foregoing, I am satisfied that this action should proceed to a judge-alone trial in the upcoming May 10, 2021 trial sitting in Brampton.
[50] Accordingly, I order the following:
a. The Plaintiff is granted leave to bring this motion to strike the Defendants’ jury notice;
b. The jury notice in the action is hereby struck; and
c. The Defendants’ cross motion to adjourn the trial and to require the Plaintiff to attend defence medical examinations is dismissed.
[51] If the parties are unable to agree on costs for the motions, the Plaintiff may deliver written costs submissions not exceeding two pages (excluding his costs outline and any offer(s) to settle) within 15 days, and the Defendants may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Doi J.
Date: March 19, 2020
COURT FILE NO.: CV-17-4379-00
DATE: 2021 03 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Markandu Sivagnanasuntharam, Plaintiff
AND:
Michael Wong and 1488218 Ontario Limited o/a Volvo of Unionville, Defendants
BEFORE: DOI J.
COUNSEL: Steven M. Polak, for the Plaintiff
Greg Specht, for the Defendants
ENDORSEMENT
Doi J.
DATE: March 19, 2021
[^1]: Leave under Rule 48.04(1) for the Defendants to bring their motion is not required, as they did not set the action down for trial or consent to place the action on a trial list: Azzopardi v. White, 2020 ONSC 8069 at paras 14- 15; Maxrelco Immeubles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836 a para 15.
[^2]: See Notice to the Profession and Public Regarding Court Proceedings – March 17, 2021.