Court File and Parties

COURT FILE NO.: 2440/16 DATE: 20210329

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Weaver, plaintiff AND: Ian Clunas, defendant

BEFORE: Justice A.D. Grace

COUNSEL: V. Genova for the plaintiff M. Owen for the defendant

HEARD: March 24, 2021 by zoom

ENDORSEMENT

[1] In the civil sphere the pandemic has created a cottage industry: motions, primarily if not exclusively by plaintiffs, to strike jury notices. This is such a motion.

[2] It arises in the context of an October 10, 2013 motor vehicle accident, an action commenced in Toronto just short of the second anniversary in 2015, a transfer to London, Ontario in July 2016, the service of a trial record in June 2019 and the setting of May 22, 2020 pre-trial and February 8, 2021 running trial list dates during the August 2019 civil assignment court.

[3] COVID and the court’s limited operations resulted in the pre-trial being rescheduled to October 13, 2020, Mitchell J. presided. In her report to trial judge, my colleague wrote:

Due to COVID-19 delays – matter not ready to proceed to trial as responding and updated reports and motions remain outstanding.

[4] On consent, Mitchell J. vacated the February 8, 2021 trial date and placed this action on the May 10, 2021 running list. She noted that the matter was to be heard by judge and jury and that its estimated length was four weeks. A further pre-trial was scheduled for February 4, 2021.

[5] Leach J. presided at the second pre-trial. In his report to trial judge, Leach J. noted: (i) that the plaintiff had expressed an intention to bring the motion now before me and (ii) that “no further expert reports expected”.

[6] The defendant opposes this motion with vigour. His counsel maintains that it should founder before it takes its first step and asks the court to refuse to grant the leave rule 48.04(1) requires.

[7] A full quiver lies behind that submission if it fails to find favour. The defendant notes, as has been stated innumerable times of late, that trial by jury is a substantive right that is not to be interfered with except for just cause or compelling reasons: Louis v. Poitras, 2021 ONCA 49, at para. 17.

[8] The legal principles are crystal clear. That substantive right is “qualified”. The motion judge has a “broad discretion” and the “paramount objective… is to provide the means by which a dispute between parties can be resolved in the most just manner possible”: Louis v. Poitras, supra at para. 17; Cowles v. Balac, 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.) at para. 39, leave to appeal refused, [2006] S.C.C.A. No. 496.

[9] The exercise is highly fact specific. As illustrated by the many cases cited by counsel, the exercise of discretion is influenced by the circumstances of the particular action under consideration and by the circumstances affecting the administration of justice in the municipality and region in which the trial is to occur: Louis v. Poitras, supra, para. 26. The pandemic’s impact has been and continues to be anything but static.

[10] The defendant maintains that the plaintiff’s motion to strike fails to withstand scrutiny when considered individually or in the context of the pandemic’s effect on the administration of justice in London.

[11] With respect to the action, the defendant observes that: (i) it was commenced just before the expiry of the two year limitation period; (ii) it moved slowly as evidenced by the fact the trial record was not served until mid-2019; (iii) the first trial date in February 2021 was moved because the case was not ready; (iv) if the motion is dismissed, the adjournment of the May 10, 2021 trial date will really only be the first time; and (v) in any event, the plaintiff has failed to do all that is required to allow the trial to proceed on the scheduled date.

[12] Further, the defendant says the evidence the plaintiff introduced concerning prejudice was initially insufficient and then, improperly led by way of an affidavit in the plaintiff’s name introduced in reply. Even then, allegations of psychological harm occasioned by a further delay are self-serving and unsupported by the evidence of a health professional.

[13] On the systemic side, the defendant suggests that jury trials appear likely to restart in London in July 2021 and submits that trial of this matter is likely to be delayed for only seven months or so.

[14] With that background, I turn to the merits of the motion, also bearing in mind the statement of Hourigan J.A. in Louis v. Poitras, supra at para. 25 that:

There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice.

[15] The first question then is this. Should leave be given under rule 48.04(1)? The answer is yes.

[16] On January 13, 2021 the S.C.J. announced a province-wide suspension of jury trials – criminal and civil - until May 3, 2021 “at the earliest”.

[17] In my role as local administrative judge, I issued two omnibus endorsements the following day: one in relation to civil and the other in respect to criminal jury trials.

[18] The former adjourned all civil jury trials scheduled for February, March and April 2021 to a special March 12, 2021 civil assignment court. That endorsement followed previous adjournments of civil and criminal jury trials. On the civil side, London has not been able to conduct a jury trial for over a year. To the best of my recollection three criminal jury trials were conducted in the fall but dozens more were adjourned.

[19] In London, criminal and civil trial lists are blended. Criminal trials – jury and non-jury – take precedence. That has enormous implications on the court’s ability to conduct civil trials, independent of the pandemic.

[20] On March 17, 2021 the S.C.J. announced that the suspension of jury trials would, once again, continue until July 5, 2021 “at the earliest”.

[21] On March 18, 2021, I issued omnibus endorsements. Civil jury trials scheduled for May and June 2021 were adjourned subject to this proviso.

Unless an order to the contrary is made in relation to a specific proceeding, the currently scheduled running trial list date in May or June 2021 will be maintained for any civil jury trial that has been or is the subject of an order striking the jury notice.

[22] Consequently, if the plaintiff’s motion succeeds, the trial will remain on the May 10, 2021 trial list. If not, new trial and in all likelihood, a third pre-trial date will be assigned at the March 26, 2021 civil assignment court.

[23] In my view, it is in the interests of justice to allow the plaintiff’s motion to proceed. The lingering effects of the pandemic are prolonged and ongoing. The plaintiff’s desire to maintain the long-awaited trial date is understandable. It is in the interest of justice to hear the motion. If the test is more restrictive this case meets it too. There has been a substantial and unexpected change of circumstances justifying the granting of leave: the uncertainty that surrounded the May 10, 2021 date when the motion was brought which, now, is certainty of an unwanted adjournment absent success on this motion.

[24] I turn to the merits.

[25] The relevant surrounding circumstances may be briefly summarized. This case arose from an accident that occurred almost 7 ½ years ago. The action is almost 5 ½ years old. The trial record was filed in mid-2019. The trial date chosen by the parties in August 2019 was about 18 months down the road. I emphasize that was the parties’ choice. London does not close its running lists. The lengthy delay between the scheduling court and the trial date is almost always attributable to the pre-existing commitments of counsel and, potentially, the experts they have retained.

[26] I pause here to say that once set, the philosophy in this jurisdiction is a simple one. Absent a compelling reason that could not reasonably have been foreseen when the trial date was assigned, the scheduled trial will occur if there is an available judge during the week set for trial or the following week unless settlement has been achieved.

[27] That approach accords with the spirit of rule 1.04, and the specific wording of rule 48.07 of the Rules of Civil Procedure and the certificate and undertaking at the base of the report to trial judge, counsel are asked to sign (pre-COVID) or acknowledge (post-COVID). It has been known – long before the oft quoted Hryniuk v. Mouldin decision – that civil justice in Canada takes too long. Complacency by any justice participant is entirely unacceptable.

[28] Defendant’s counsel says liability and damages are in issue. Surely liability issues are ones that are quintessentially time sensitive. Bluntly, the existing trial date is too far down the road from the underlying accident for my liking.

[29] Consequently, absent the jury notice issue, the court’s strong preference is to maintain the existing running trial list date. The matter appears ready for trial. It has been adjourned once in the hope that COVID related delays could be addressed. It has been pre-tried twice. Remote, judge-alone civil trials have occurred and are occurring in London. From a scheduling perspective, the access of the civil bar to judicial resources has rarely, if ever been this good. However, with certainty I can say that it will not last. The moment the suspension of jury trials ends, the long line of criminal cases will push through the courthouse doors, long before the participants in civil matters are even able to view them from afar.

[30] For a while, it seems likely that the return will be graduated. In the fall of 2020, the London courthouse was only able to physically accommodate one jury case at a time. The logistical reasons underlying that reality are unimportant. Of significance is the fact that capacity has not yet increased. By July 5, 2021 it is expected that two jury trials could be accommodated simultaneously but, if social distancing is still required, only if one of the juries observes the trial on small monitors in a room soon to be retrofitted located many floors below the one in which the rest of the participants will be.

[31] Physical limitations and criminal cases are not the only local concern. London is a Unified Family Court site. That means it hears a full range of cases including child protection. Strict statutory timelines govern their progress. The reality is that the needs of that area of the law seem to be insatiable. From a scheduling perspective, family law occupies a higher rung on the ladder. An assignment court was recently held in the UFC. Its LAJ, Henderson J., presided over a list of 134 cases. It is exceedingly likely that the UFC judges will need help in dealing with the sea of cases that have been slowed by the pandemic when they re-commence hearing trials in September 2021. Except for some child protection matters, those, too, have been held in abeyance. That is likely to further limit the availability of judicial resources for civil matters for a period of months.

[32] While not certain, the likely reality is this: if not reached in or adjourned from May 2021, this action will not be tried until the second quarter of 2022 at the earliest, even if counsel and all of the proposed witnesses are truly able to accommodate a jury – or non-jury – trial during some prior time period.

[33] In the meantime, Mr. Weaver’s pre-trial income loss, if proven, grows as does the amount that is statutorily unrecoverable. The defendant’s offer to provide him with a $50,000 advance, even if properly disclosed in the motion material, addresses cash flow but not the ultimate economic consequences of a further significant delay.

[34] I have not forgotten the defendant’s claim that its entire litigation strategy, including its choice of expert witnesses, has been formulated with a jury in mind. Particulars were not provided and so, with respect, I cannot assess what seems to me to be a rather bold assertion.

[35] That is how the defendant characterized Mr. Weaver’s assertion that he would suffer psychological harm if this matter is delayed again due to the pandemic. I am prepared to say, then, that these last two assertions – one on each side – added little to my analysis. I recognize jury notices are delivered by most defendants in motor vehicle cases. Strategic reasons clearly underlie their service. Similarly, plaintiffs understandably want their case to either be resolved or determined and have every right to expect the latter to occur in a timely way.

[36] In my view and after considering, assessing and balancing the circumstances of this case, the competing interests of the parties, the relevant legal principles and the impact of the pandemic on the administration of justice currently and for the foreseeable future, the result is clear. Provided this matter is called to trial during the week of May 10 or 17, 2021 (the local practice in relation to running list cases), the jury notice will, without more, be struck.

[37] If, however, the trial coordinator is not able to call the matter in for trial during one of those weeks due to a lack of available judicial resources, the jury notice shall be maintained, without prejudice to the plaintiff’s right to renew the motion, if so advised, provided that the renewed motion shall not be brought until the rescheduled trial date is no more than four months away.

[38] But for the current impact of COVID-19 on the conduct of jury trials in Ontario this motion would not have succeeded. Because of the importance of the present circumstances to the analysis, it is imperative that a renewed motion, if brought, include evidence concerning the status of civil justice at that time. If the May 2021 running trial list date cannot be maintained, the “wait and see” approach then becomes the appropriate one. The plaintiff should not complain. The continued presence of a jury notice would then give this case higher standing on the scheduling ladder.

[39] Given the disposition, I am optimistic the parties can resolve the issue of costs. If misplaced, short cost submissions of three pages or less may be delivered by the plaintiff and the defendant by 4:30 p.m. on April 13 and 23, 2021 respectively.

“Justice A.D. Grace”

Justice A.D. Grace

Date: Released and transcribed: March 29, 2021