Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Debra Sweetman, Plaintiff
AND:
David Kowalczyk and Jan Kowalczyk, Defendants
BEFORE: Justice Verner
COUNSEL: Steven M. Polak, for the Plaintiff
Todd McCarthy, for the Defendants
HEARD: March 18, 2021 via Zoom
RULING ON STRIKING THE JURY NOTICE
1The plaintiff was hit by a motor vehicle while riding her bicycle. She has started an action seeking damages against the defendants. There is no issue as to fault, and the only issue for trial is the quantum of the damages. She originally filed a jury notice, but in light of the COVID-19 pandemic, she is seeking to strike that notice, as well as seeking leave to do so. The respondents concede that leave should be granted to bring the motion to strike, but oppose the motion itself.
The Plaintiff’s position
2The plaintiff is seeking to strike the jury notice completely or to conditionally strike it as was outlined by Justice Casullo in the following passage of Barikara v. Kyei, 2021 ONSC 1636 (another current action in the Central East Region):
The 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.
The plaintiff in the case before me has no preference between completely striking the notice or conditionally striking it.
3The plaintiff’s request to strike the jury notice is based on the delay associated with having a jury trial during the pandemic and the financial consequences of that delay. The plaintiff is a single mother, earning only a fraction of her potential income due to the accident, and is suffering hardship as she awaits to be awarded damages. The delay impacts the plaintiff financially through statute as follows:
(i) As a result of s. 267.5(1) of the Insurance Act only 70% of the plaintiff’s lost income leading up to the trial is recoverable, whereas 100% of her post-trial income loss is recoverable (based on information from her current employer – a local lawyer – this loss approximates $30,000-$60,000 a year);
(ii) As a result of s. 267.2 of the Insurance Act the deductible on the plaintiff’s claim for pain and suffering increases with time; and,
(iii) As a result of s. 267.5 (8) of the Insurance Act the threshold at which the deductible on damages for non-pecuniary loss is eliminated, increases with time.
4In terms of defining the length of the delay, the plaintiff emphasized the following:
- This matter is ready for trial and in fact was adjourned from the original trial date of May, 2020 due to the pandemic;
- Regional Senior Justice Edwards provided the following notice to the profession on February 11, 2021:
Counsel are advised that while this notice specifically deals with the May 2021 sittings, the court does not anticipate having the capability to conduct a civil jury trial until well into 2022.
- Regional Senior Justice “Edwards has advised that this motion to strike the jury should be heard on a priority basis and that he could deal with trial scheduling thereafter if the motion is successful. Justice Edwards advised that, due to Mr. McCarthy’s involvement in the Girao case, Counsel may wish to add the matter to the running list or the Fall 2021 sittings.” (para. 7 of the plaintiff’s factum).
The Defendants’ position
5The defendants oppose the motion on the basis that this action is not that old (the accident occurred on May 8, 2017), defendants’ counsel is busy for the next few months and thus, this matter could not be tried immediately, this matter should not take priority over other matters and the potential delay is unclear since it is uncertain when this matter could be heard by judge alone vs. when it could be heard by judge and jury.
6In response to the plaintiff’s submissions regarding financial loss associated with delay, the defendants submit that there is a triable issue as to whether the plaintiff is currently earning less than she otherwise would and whether, on the facts of this case, ss. 276.2, 276.5(1) and 276.5(8) of the Insurance Act would work to the plaintiff’s detriment. And even if those sections did work to her detriment, according to the defendants, it would be to a minor amount. In fact, during oral argument, the defendants’ counsel provided the following undertaking:
If this motion is dismissed and the trial does not in fact start until after March 18, 2022 (a year from the hearing of this motion), the defendants would not rely on ss. 276.2, 276.5(1) and 276.5(8) of the Insurance Act – such that 100% of the income lost between March 18, 2021 and the date of trial would be recoverable, and the threshold set in 276.5 (8) and the deductible set in 276.2 would remain what they are today.
In reply, the plaintiff submitted that he was unsure whether the court could, even with the consent of the defendants, ignore what is mandated under those sections.
7There was no mention of prejudice associated with a judge alone trial in the defendants’ factum prepared for this motion. However, when counsel was directly asked during oral submissions if he could articulate the prejudice of having the matter tried by judge alone, counsel submitted that to date the matter has been prepared as if it was going to be tried by judge and jury – and counsel would have to pivot and change his strategy if this was to be tried by judge alone. He further submitted that a group of fact finders is “always” superior to a single finder of fact, and in that way a jury is superior.
8The defendants submit that it would be extreme to strike the jury notice completely. They request that the motion be dismissed without prejudice, such that the jury notice would be maintained, but the plaintiff could renew their motion when there is concrete evidence that there will in fact be substantial delay waiting for a jury. Alternatively, the defendants submit that the conditional discharge of the jury, as outlined by Justice Casullo in Barikara v. Kyei, supra, would be better than striking the jury notice entirely.
Legal Principles
9The respondents appropriately conceded that leave should be granted to bring the motion. As stated by the plaintiff, whether the test for leave is phrased as “the moving party must show a substantial or unexpected change of circumstances” (BNL Entertainmet v. Rickets, 2015 ONSC 1737 at para. 12) or phrased as whether leave is “necessary in the interest of justice” (Kaur v. Blue Cross Insurance Co. of Canada, 2018 ONSC 3303 at para. 21 and 23), the test is met. The sole reason behind bringing this motion is that the pandemic has delayed the trial; there is no question that the pandemic is a “substantial or unexpected change of circumstances”.
10The issue before me is whether the moving party has met its onus in showing that the jury notice should be struck. In Hunt (litigation Guardian of) v. Sutton Group Incentive Realty (2002), 2002 CanLII 45019 (ON CA), 162 O.A.C. 186, Austin J.A. emphasized that the onus on the moving party is “substantial”, since the right to a civil jury trial is substantive.
11However, more recently, the courts have emphasized that the right to a jury trial is limited by the court’s power to order that the matter proceed by judge alone. The court has in fact a broad discretion in deciding how the matter should proceed, based on what would best serve the interests of justice. Brown J.A. summarized these legal principles in Belton v. Spencer, 2020 ONCA 623 as follows:
[26] 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 (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, 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: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). 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": Cowles, at paras. 36-38. 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": Cowles, at para. 39.
[27] As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, "it is not absolute and must sometimes yield to the practicality."
12Historically, the courts have favoured a “wait and see” approach, deferring the decision to the trial judge who could more properly assess whether, in light of the evidence, the interests of justice require the matter to be tried by judge alone. However, in Belton v. Spencer, supra Brown J.A., sitting alone as a motions judge, recognized that the “wait and see” approach is inappropriate when the request for a judge alone trial is based on the delay associated with waiting for a jury trial.
13In the subsequent case of Louis v. Poitras, 2020 ONCA 81 Brown J.A., again sitting alone as a motions judge, found that delay in itself could be a sufficient basis for striking a civil jury trial notice:
Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice. This should not be a surprising proposition. Part of the "service guarantee" to the public made in r. 1.04(1) is that courts will work to provide the "most expeditious . . . determination of every civil proceeding on its merits" (emphasis added). Delay in providing trial dates undermines that service guarantee. The late Willard Z. Estey, a former justice of the Supreme Court of Canada, captured the point well when he stated that "delay in the settlement or disposal of conflicting claims is . . . a primary enemy of justice and peace in the community": MJ Reasons, at para. 48.
14When the matter proceeded to the appeal itself, Hourigan J.A., writing on behalf of the court, explicitly adopted Brown J.A.’s finding that delay in itself could justify striking a jury notice (Louis v. Poitras, 2021 ONCA 49 at para. 22). Hourigan J.A. further emphasized the significant prejudice that can be associated with the delay of a civil jury trial. He said:
the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system's systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.
15That criticism in Hyrniak v. Mauldin, 2014 SCC 7, referred to by Hourigan J.A. in the passage above, included in part:
…undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates' Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication…. when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law. [Italics in original.]
16Thus, it is apparent that lengthy delays in scheduling a jury trial may, on their own, significantly prejudice parties in a civil matter.
17The plaintiff further notes that in every case where the plaintiffs have sought to strike a jury on the basis of delay and there has been the potential for financial consequences by way of s.267.5 of the Insurance Act, the court has struck the jury notice (see Higashi v. Shariot, 2020 ONSC 5523 at para. 52; Coban v. Declare, 2020 ONSC 5580 at para. 32; Francisco v. Li, 2021 ONSC 1032 at para. 26; Johnson v. Brielmayer, 2021 ONSC 1245 at para. 50).
18Since this is a balancing exercise and there is prejudice associated with delay, the court must ask itself how the party opposing a judge alone trial would be prejudiced. In Louis v. Poitras (2020), supra Brown J.A. recognized that the parties insisting on jury trials typically do not articulate how they would be prejudiced by being tried by an impartial judge sitting alone:
68 At present, the debate about what loss a party suffers by having its jury notice struck is carried out largely by resorting to labels: DC Reasons, at para. 4; Belton (C.A.), at para. 26; MacLeod, at para. 29. Cases variously describe the right to a jury trial under CJA s. 108 as fundamental, substantive, statutory, qualified, or procedural. Such labels add little precision to the analysis required where a party opposes its selection of a civil trial by a jury. By their nature, civil jury trials take longer than civil judge-alone trials and, since they take longer, the parties incur more legal expenses. What goes unexplained is what legitimate benefit a party seeking a civil jury trial obtains that it would not obtain in a trial before a judge alone.
69 As I stated in Belton, at para. 55, in the context of the irreparable harm analysis:
Both a single judge and a jury labour under the same duty to do justice impartially and dispassionately, based on the evidence before them. The appellant [defendant] has not explained, in specific functional terms, what litigation disadvantage she might suffer if her rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury. Absent evidence of such specific litigation disadvantage and given the qualified nature of the right to a civil jury trial, I do not regard the prospect of proceeding to trial before a judge alone as causing irreparable harm.
70 In the present case, the Defendants are responding to the Plaintiffs' effort to preserve a date for a trial before a judge alone. But the situation remains the same as that described in Belton — the Defendants have not explained, in specific functional terms, what litigation disadvantage they might suffer if their rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury.
71 The absence of evidence of such a functional litigation disadvantage, when weighed against the irreparable harm the Plaintiffs will suffer if the scheduled trial date is vacated, leads me to conclude that the balance of convenience overwhelmingly favours granting the requested stay.
Applying the Principles to the Case at Bar
19The focus of the moving party’s argument is that there will be significant delay as a result of COVID 19 if the jury notice is not struck. The defendants submit the evidence does not support a finding that there will be delay. I note that the parties are ready to proceed, as the trial was scheduled for May, 2020 and although the defendants’ counsel submitted that he had prepared for a jury trial and now would have to pivot into preparing for a judge alone trial, he did not suggest that he was not prepared to proceed at this time. In other words, the defendants’ counsel left the impression that they were ready to proceed.
20I also note that it is anticipated by our Regional Senior Justice that no civil jury trials will be heard before well into 2022, and according to the defendants, this matter will be low on the priority list due to its lack of history, and thus, the parties would be lucky to have this trial heard by a jury prior to the end of the summer of 2022. On the other hand, if this were to proceed as a judge alone trial, the matter may be heard by the summer of 2021 and quite likely would be heard by the end of this year. Thus, although the delay cannot be quantified with any certainty, the evidence does support a finding that there will be significant delay if this matter were to proceed with a jury. There will therefore be prejudice to the plaintiff if the jury notice is not struck.
21With respect to the potential prejudice to the defendants associated with striking the jury notice, I recognize that the defendants’ counsel indicated that he needed to refocus the defence since his approach to a judge alone trial is different from his approach to a jury trial. However, there are several factors which suggest that this is not a significant concern to the defendants, including:
(1) counsel left the impression he was ready to proceed now whether it be by judge alone, or by jury, and thus, there is apparently not a significant amount of work that needs to be done to refocus the defence for a judge alone trial;
(2) counsel made submissions regarding the conditional striking of the jury notice from Barikara v. Kyei, supra, which would involve counsel learning on the eve of trial whether it was going to proceed with or without a jury. In making these submissions, the defendants’ counsel did not suggest that it would be difficult to pivot at the last moment from beginning a judge alone trial to beginning a trial with judge and jury. Again, this suggests that there is not a significant difference in the preparation of the defence for one mode of trial vs. the other; and,
(3) counsel did not mention this prejudice in his written submissions, it was only when directly asked during oral submissions that counsel articulated why the defendants would be prejudiced by a judge alone trial.
22I do not accept the defendants’ position that multiple triers of fact are always better than one, however, I do accept that different people have different preferences. Some prefer a single judicial arbiter, whereas others -including the defendants in this case – prefer six triers of their peers (see R. v. Ruston (1991), 1991 CanLII 2758 (MB CA), 63 C.C.C. (3d) 419 (Man.C.A.)). In assessing the weight to be given to this preference, I note again that the prejudice was not mentioned until counsel was asked during oral submissions to articulate how the defendants would be prejudiced by a judge alone trial. I further note that in Musa v. Carleton Condominium Corporation No. 255, 2021 ONSC 1177, Roger J. struck a jury notice for an action that was three years old on the basis of delay alone, despite the defendants emphasizing several historically recognized benefits of jury trials (see para. 25).
23Finally, I will address the potential for financial consequences for the plaintiff resulting from ss. 267.2, 267.5(1) and 267.5(8) of the Insurance Act. I assume for the purposes of this motion, without finding, that the court may, with the consent of the defendants, ignore ss. 267.2, 267.5(1) and 267.5(8) of the Insurance Act. Therefore, in light of the undertaking by the defendants’ counsel, the potential loss under the Insurance Act does not play a role in this decision.
24In all the circumstances, I find that:
(1) There will be significant delay if the jury notice is not struck;
(2) The plaintiff, who is clearly entitled to compensation from an accident that occurred in May 2017, is prejudiced by the delay as a result of not having access to justice within a timely fashion;
(3) The court should not be complacent with respect to delay;
(4) Although the defendants have articulated the prejudice they would suffer from a judge alone trial, that prejudice is outweighed by the prejudice the plaintiff would suffer if the jury notice was not struck; and,
(5) The plaintiff is not opposed to a jury trial if it would not result in delay, and the defendants would prefer that the jury notice be conditionally struck, rather than struck completely.
Conclusion
25I accordingly order that the jury notice be struck and this action either be put on the running trial list or in the fall civil trial sittings, with the following condition:
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.
26I ask the parties to consult with one another in hopes of agreeing on costs. In the event the parties cannot agree, I invite the plaintiff to provide a bill of costs, a costs outline and no more than three pages of submissions by April 19,2021; and the defendants to provide their response of no more than three pages by April 26, 2021.
Justice Verner
Date: March 22, 2021