COURT FILE NO.: CV-15-519872

DATE: 20210312

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Floyd Hazzard, Plaintiff

AND:

Ronald C. MacDonald and Dorothy M. MacDonald, Defendants

BEFORE: D. Wilson J.

COUNSEL: Ashu Ismail, for the Plaintiff

Sandi Smith, for the Defendants

HEARD: March 3, 2021

ENDORSEMENT

[1] This is a motion for an order striking the jury notice in this action and for an Order to Continue since the Defendant Dorothy MacDonald has passed away.

Background

[2] This is a claim for damages for injuries allegedly sustained by the Plaintiff, Floyd Hazzard (“Hazzard”) arising from a car accident that occurred on May 30, 2014. He asserts claims for general damages and special damages including loss of income and future care costs. His claims exceed the policy limits of the Defendants, MacDonald (“MacDonald”). I understand that the MacDonald vehicle, owned by Dorothy and driven by Ronald, rear ended the FedEx truck that was stopped with Hazzard in it. While there is no issue of liability to be determined at trial, the Defendants cannot make a formal admission of liability because the Plaintiff will not confine his claims to the policy limits and thus, there is personal exposure to the MacDonalds for any amounts awarded in excess of their policy limits.

[3] A chronology of events in the life of this litigation file is as follows:

• Statement of Claim was issued January 16, 2015
• Statement of Defence and Jury Notice served July 17, 2015
• Discoveries completed April 2016
• Trial Record served October 2016
• Action struck from the trial list January 2018
• Action restored to the trial list March 2018
• Trial date of June 2020 was set in Trial Scheduling court in June 2018
• Defendants brought a motion in January 2020 for a second defence medical with a physiatrist and for production of medical documentation. The Plaintiff eventually consented to attending the defence medical and Justice Leiper issued an order for production of documentation.
• A pretrial was held in March 2020 and it was determined that the time allotted for the trial in the June 2020 sittings was not sufficient; thus, the trial date was vacated and a new trial date of February 16, 2021 was fixed by Justice Archibald.
• Second pretrial was held January 26, 2021
• On February 11, 2021, the solicitor for the Plaintiff filed an urgent motion with the Court seeking to have the jury notice struck. I convened a case conference and the motion was returnable March 3, 2021 before me.

Order to Continue

[4] Dorothy died in 2018 and consequently, an Order to Continue is necessary. Although there are many paragraphs devoted to this issue in the motion materials, it is unclear to me why the Order has not been obtained. I am advised that Mr. MacDonald is very ill with cancer and does not have capacity and thus he requires a Litigation Guardian. The fact that there are claims over the policy limits does not change the need for an Order to Continue and the appointment of a Litigation Guardian and it ought not to be the subject of debate. Counsel are directed to forward to me a proper draft order for my signature.

Jury Notice

Positions of the Parties

Plaintiff

[5] The Plaintiff argues that the inability to get to trial causes the Plaintiff prejudice because he has not returned to work and as a result of the legislation, he can only recover 70% of his lost income prior to trial. The Plaintiff is entitled to a timely adjudication of his case on the merits and it is unclear when it is possible to have a jury trial in Toronto presently. The last direction from the Chief Justice suspended criminal and civil jury trials until May 3rd, at the earliest. In the affidavits of solicitor Winkworth filed in support of the motion, it is deposed that Hazzard has had to take out loans totaling $22,565.50 as he has no other source of income since he is not working. It is acknowledged that the Defendants provided an advance payment to the Plaintiff of $10,000 in September 2016.

Defendants

[6] Ms. Smith points out that the Plaintiff’s materials fail to detail the fact that the Plaintiff had been involved in a serious accident in 2012 which resulted in injuries and he was off work for approximately 2 years. When he did return to his job at FedEx, it was to modified duties and he was advised to retrain to a different job in light of his restrictions from the 2012 accident.

[7] Furthermore, Ms. Smith submits that while the Plaintiff asserts impecuniosity and difficult financial circumstances due to delay, he has settled the prior litigation and a long-term disability claim as well as accident benefits claims arising from both accidents for significant sums of money.

[8] Ms. Smith asserts that there is no evidence before the Court that a non-jury trial will be heard any earlier than a jury trial and emphasizes that Toronto has a different set up for trials than other jurisdictions in Ontario. Any delay must be counted as starting in February 2021, since that is the first time the case could have proceeded to trial.

[9] Finally, Ms. Smith makes the point that she has prepared this case to be heard with a jury. It was only after the January 2021 pretrial that the solicitor for the Plaintiff filed this motion as an urgent matter. Given that the Court has not been conducting jury trials since October 2021, she submits the better course would have been to attend Trial Scheduling Court and select a new trial date.

Analysis

[10] Ms. Smith submitted that the Plaintiff requires leave to initiate this motion and that no leave has been sought pursuant to Rule 48.04. That is technically correct; however, at the time this action was set down for trial no-one could have anticipated the descent of the pandemic or the manner in which it has affected virtually every part of our lives, including the functioning of the Court. As a result, leave is granted to the Plaintiff to bring this motion.

[11] Generally, in cases pre-Covid, the Court adopted what has been described as a “wait and see approach” when considering motions to strike the jury notice: Kempf v. Nguyen, 2015 ONCA 114. Put another way, the proper approach was to commence the trial with a jury and determine if as the evidence unfolded the complexities were such that it was inappropriate for a jury to determine the issues. In appellate decisions, the substantive and important right to a trial by jury has been recognized, to be balanced against the facts of a particular case.

[12] It is settled law that the right to a civil trial with a jury is an important right but “it is a qualified right”: Belton v. Spencer, 2020 ONCA 623. The right to a jury trial is important and fundamental; but it is not absolute: Girao v. Cunningham, 2020 ONCA 260. The Court has a broad discretion to strike a jury notice when deciding what is in the best interests of the parties and the timely administration of justice.

[13] With the advent of the pandemic and the inability of the Court to conduct jury trials, numerous motions have been launched around the province seeking orders striking jury notices so trials could proceed virtually. Some motions were successful; others were not, with the Court preferring to allow things to unfold and determine if jury trials could once again proceed.

[14] In Louis v. Poitras, 2021 ONCA 49, an appeal of a judge’s decision to strike the jury notice and proceed with a virtual trial, the Court stated, “local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of any given case. Judicial responses to the pandemic and court resources availability vary across the province.”

[15] It is clear that different jurisdictions have different resources and different abilities to provide civil jury trials. This was recognized by Justice Brown in Belton v. Spencer, supra, and is a relevant consideration on a motion to strike a jury notice in order to obtain a quicker trial date. The ability of one jurisdiction to offer a jury trial may be based on a variety of factors: the number of courtrooms that can be used for civil cases; the need to accommodate other trials such as criminal and family; the number of judges available to hear civil trials; and the ability to convene a jury panel for jury selection. This is not an exhaustive list.

[16] In short, not all jurisdictions have the same ability to offer civil jury trials. It is also true that pre-Covid, different jurisdictions in Ontario had different procedures for hearing civil cases, both jury and non-jury. In most, if not all, jurisdictions outside of Toronto, civil jury trials were held during specific sittings, usually in the spring and fall; they were not continuous.

[17] In my position as the co-team lead of civil in Toronto dealing with pretrials and trials, I am very familiar with the trial schedule and the time-outs when fixing trial dates. In Toronto, historically, civil jury trials are offered throughout the year and in addition, there are specific civil jury sittings twice a year that are exclusively for personal injury cases arising from motor vehicle accidents and slip and fall cases for trials not exceeding 15 days. In addition, because trials are heard continuously, there is no difference in booking a 20-day jury trial when compared to booking a 20-day non-jury trial in Toronto.

[18] The pandemic resulted in the suspension of the Court’s ability to conduct trials of any sort for a number of months. Gradually, the Court was able to resume various types of work and in Toronto, that included civil in-person trials, jury trials, virtual trials and hybrid trials. As I noted in Jiang v. TTC, 2020 ONSC 5727, “…we are in unprecedented times. The Court must be flexible and adaptable to accommodate the needs of the parties and to ensure that cases proceed in a fair and equitable fashion. In Toronto, we …. have courtrooms that have been retrofitted to accommodate the social distancing that is required to conduct jury trials. We also are able to conduct jury selection at an off-site premise which has been created to allow for social distancing…”

[19] Jury trials in Toronto were suspended again on October 9, 2020 pursuant to the order of the Chief Justice and in a further order dated January 13, 2021, civil jury trials will not commence until May 3, 2021 at the earliest. In Toronto, a 10-day jury trial was completed in the fall of 2020, just prior to the order suspending them on October 9, 2020. Another 2 juries were selected but the trials were not able to proceed as a result of the suspension order.

[20] I turn now to a consideration of the facts of the instant case. The accident occurred in 2014; the Plaintiff is tasked with moving an action forward and particularly, with setting it down for trial and certifying to the Court that it is ready to proceed to trial. On the record before me, the case moved expeditiously until it was set down for trial. It is unclear and unexplained in the motion record what happened between 2016 and when it was struck from the trial list in January 2018, a period of some 18 months. Counsel for the Plaintiff was unable to assist me with what transpired during this time frame.

[21] In June 2018, the case was fixed to commence to trial in the June 2020 sittings. The fact that the trial did not proceed to trial in June 2020 had nothing to do with the pandemic; rather, it was due to the fact that the time estimate provided by counsel was inadequate. Since the trial would not be completed within 15 days, it could not proceed in the jury sittings which are restricted to trials no longer than 15 days. The pretrial judge had to vacate the June 2020 trial date and book a new trial for February 16, 2021. Thus, the delay between June 2020 and February 2021 was not occasioned by the Court or by the pandemic, but by the lawyers.

[22] I pause to observe that when counsel attend Trial Scheduling Court to fix a trial date, the Court relies on the advice of counsel as to the length of trial. By the time a trial date is fixed, counsel should know the number of experts who will be testifying and the number of other witnesses as well as the number of issues to be adjudicated. If the time estimate is inaccurate, it will be necessary for a new trial date to be selected and the delay associated with that lies at the feet of the lawyers.

[23] I am alive to the reality that justice delayed is justice denied. However, both parties must work to ensure that cases move forward in an expeditious fashion. In the instant case, after the trial date was set, the Defendants had to bring a motion for a second defence medical and to obtain various productions. I am told that after the motion was served, the Plaintiff consented to the defence medical with a physiatrist and Justice Leiper issued an order for productions of various medical records. While the bringing of the motion did not in itself cause delay given that there was a fixed trial date, it contradicts the assertion of counsel when the trial date was selected that the case was ready for trial. I am not aware of the timing of the service of the expert reports of the Plaintiff but interlocutory motions for things such as production of medical records or to enable the defence to have an independent medical examination ought not to be brought some 6 months before the case is scheduled to go to trial.

[24] The onus is on the moving party seeking to strike a jury notice to establish that the timely delivery of justice mandates the jury notice be struck and an earlier trial date before a judge alone can be obtained. The solicitor for the Plaintiff argues that the delay in obtaining a jury trial is unfair to her client because he is incurring financial losses as he waits for a trial date. Any delay in proceeding to trial commences in February 2021, last month. In Toronto, there are dedicated courtrooms that have been retrofitted to comply with standards set by the Ministry of Health and to ensure social distancing is possible. Numbers in the courtroom are restricted. This is not a case where it can be said there is no possibility of having a civil jury trial in 2021. As soon as the Chief Justice issues an order permitting the resumption of jury trials in Toronto, these trials will commence immediately.

[25] As I have noted, it is the responsibility of counsel for the Plaintiff to move an action forward expeditiously so that the trial record can be passed and a trial date fixed. In this case, this action was struck from the trial list for months and an order had to be obtained restoring it to the list. That resulted in delay for which no explanation is offered in the materials.

[26] I acknowledge that the Plaintiff could lose 30% of his income loss from February 2021 to the date this case is tried, which on the best evidence today, is likely a matter of months. This is not a case where there will be an indeterminate length of time before the case proceeds to trial, perhaps years. I am not persuaded that the 30% loss of income claim from February 2021 to the date of trial is sufficient to justify depriving the defence of a substantive right to a jury trial. Ms. Smith submits that she has defended this case on the basis that it would be tried by a jury. It is fair to say that jury trials are conducted in a different fashion than are trials with a judge alone.

[27] Cases relied on by counsel for the Plaintiff that were decided in jurisdictions outside of Toronto have limited relevance to my decision in this case, because of regional differences and allocations of resources that are not the same in every area.

[28] When determining motions to strike a jury notice, the Court must balance the interests of the parties and achieve a fair result. On the facts of this case, taking all the factors into consideration, I am not persuaded that striking the jury notice is fair or necessary. I decline to make such an order. Counsel are directed to contact the trial coordinator to select a new trial date. This order is without prejudice to the ability of the solicitor for the Plaintiff to renew this motion should circumstances change and the court be unable to offer a jury trial at the time of the new trial date. The costs of this motion are reserved to the trial judge.

Date: March 12, 2021