Court File and Parties

Barrie Court File No.: CV-17-252-00 Date: 2021-03-29 Superior Court of Justice - Ontario

Re: Justin Frye, Plaintiff And: Colin Pattenden, Rotary Club of Barrie and Kempenfest, Defendants

Before: The Hon. Madam Justice S. Healey

Counsel: D. Fenwick and M. Elkin, counsel for the plaintiff L. Collier and D. Junkin, counsel for the defendants Rotary Club of Barrie and Kempenfest

Heard: March 26, 2021

Endorsement

[1] This is a motion to strike the jury notice in this action.

[2] Leave is required under r. 48.04(1). Although this relief was not sought in the notice of motion, the defendants do not oppose leave being granted. I grant leave; the ongoing effect of the pandemic on the justice system has been a dynamic, evolving and unpredictable process, warranting leave to be granted in the interests of justice.

[3] While not requested in the motion, the position advanced by the plaintiff in argument was that the jury notice be struck provisionally, and the action be placed on the non-jury trial list to be heard in May 2021.

[4] The defendants Rotary Club of Barrie and Kempenfest oppose the substantive relief sought; the defendant Pattenden does not.

[5] Two grounds were advanced in the plaintiff’s material: complexity and delay. The first argument was not pursued during the motion and accordingly I will say nothing further about that ground.

[6] The argument centered on the delay in having this matter tried by a jury.

[7] The claim arises out of an assault that occurred on July 31, 2015 at the Kempenfest festival held in Barrie, Ontario. The defendant Pattenden is alleged to have been the assailant.

[8] At the time of the incident the plaintiff was a police officer with the Barrie Police Service and 42 years of age. In addition to physical injuries, he alleges that the incident has resulted in permanent psychological injury. It is the plaintiff’s position that his opportunity for career advancement has been compromised, and that he has suffered a past and future loss of income. According to the economic loss report obtained, that loss is valued between $440,000 and $477,000.

[9] The claim was issued in Barrie in February 2017. The trial record was filed in July 2019. A pretrial was scheduled for April 2, 2020 and adjourned due to the Covid-19 pandemic. The matter was pre-tried before Justice Casullo on February 2, 2021. The parties attended the continuation of the pretrial before Justice Casullo on February 23, 2021. On that date Mr. Elkin declared his intention to bring a motion to strike the defendants’ jury notice. Justice Casullo endorsed “Counsel are instructed to refer to the February 10, 2021 Notice to Profession, Central East Region, May 2021 Civil Sittings Trial List, for direction and having this matter added to the spring sittings in Central East.”

[10] The action has not yet been placed on a trial list, and accordingly there have been no prior adjournments of the trial.

[11] Mr. Collier submits that what differentiates this case from those in which jury notices have been struck as a result of delay created by the pandemic is that it is not particularly old, the trial has never been adjourned, the matter is not ready for trial, there is no prejudice to the plaintiff because he is working full time, and the case is well-suited to be tried by a jury.

[12] The principles governing the discharge of a jury were set out in Cowles v. Balac, (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496 (S.C.C.), and Kempf v. Nguyen, 2015 ONCA 114 (Ont. C.A). Laskin J.A. who dissented in Kempf on a different point, framed the question as this: “Will justice to the parties be better served by dismissing or retaining the jury?” (para. 119). The onus is on the party seeking to strike the jury to show why such an order is warranted: Cowles, at para. 37.

[13] A consideration of the unique circumstances of each case is important. Judges considering motions to strike have a broad discretion to determine how the trial will proceed: Cowles, at para. 38.

[14] The Court of Appeal in Louis v Poitras, 2021 ONCA 49 (Ont. C.A.) recently addressed the issue of striking a jury notice in the context of a pandemic that has placed exceptional stress on the ability of the courts to provide timely and affordable access to justice. Hourigan J.A., writing for the court, recognized that judicial discretion may be exercised differently across regions depending on the local circumstances, and that the judges in each region are best positioned to understand the availability of resources and the approach needed for a given case: para. 26.

[15] In granting the plaintiff’s motion to stay the lower court’s order pending appeal in Louis (Louis v. Poitras, 2020 ONCA 815 (Ont. C.A.)), Brown , J.A. held, at para. 33: “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out the jury notice”.

[16] There have been a spate of decisions in Central East Region in the last two months in which jury notices have been struck in large part as a result of the high degree of improbability of civil jury cases being heard in this region in a timely way: Francisco v. Li, 2021 ONSC 1032; Barikara v. Kyei, 2021 ONSC 1636; MacKenzie v. Pallister, 2021 ONSC 1840; and Sweetman v. Kowalczyk, 2021 ONSC 2131.

[17] In MacKenzie, Justice McCarthy summed up the situation, at para 14:

No person familiar with what has been the reality on the ground for some time in this region could disagree that since the Supreme Court’s decision in Jordan, civil jury trials have taken a back seat to criminal jury trials when it comes to the allocation of judges and courtrooms. There is no reason to suspect that the reality will change anytime soon. In fact, a dire forecast that many civil jury trials which would otherwise be ready to proceed will be postponed or delayed into late 2022 or even 2023 might prove sadly prophetic.

[18] On the day of the motion I spoke with the RSJ to confirm the most up-to-date information, which is:

(a) Once jury trials are no longer suspended (currently June 7, 2021 at the earliest in accordance with the March 31, 2021 provincial Notice to the Profession and Public Regarding Court Proceedings), resources will be allocated to the backlog of criminal trials;

(b) The final decision as to whether to conduct jury trials after June 7, 2021 will rest with the RSJ, who will make the decision based on public-health guidance;

(c) There is only one courtroom in Barrie that will be available to permit “socially distanced” jury trials to be conducted;

(d) Even once mass vaccination levels rise to acceptable levels to permit other courtrooms to be used, those courtrooms will be allocated to criminal and family matters;

(e) While no one has “crystal ball” insight, the best prediction is that there will be no civil jury trials conducted until late 2022, and possibly later.

[19] The Central East Notice to the Profession issued on February 10, 2021 (the “Notice”) notes that “the court does not anticipate having the capability to conduct a civil jury trial until well into 2022.”

[20] Having conducted a criminal jury trial in late 2020 in the one courtroom that was retrofitted to allow for a criminal jury in Barrie, I would add to this that the competition for courtroom resources in Barrie does not end with the one retrofitted courtroom. A total of four courtrooms were required for jury selection, to accommodate the maximum number of allowable persons in each courtroom. Another courtroom was modified to be the jury deliberation room; the jury rooms are not large enough to permit distance between jurors. In other words, the focus on tackling the backlog of criminal cases may very likely lead to even more demand for the physical spaces in the courthouse for as long as social distancing is required, further delaying civil jury cases.

[21] There have been no assignment courts in Central East Region since regular operations were suspended in March 2020. Civil trial sittings have regularly been held in this region in May and November each year. The Notice states that this region will proceed with its regular civil sittings on May 17, 2021 for three weeks, with only non-jury matters being heard. The Notice sets out a specific process for being placed on the trial list, with requests being directed to the designated triage judge in the region. Both consent and opposed requests will be dealt with by the triage judge. The cases that are eligible to be placed on the list include all cases that have been pre-tried since November 2020 and which have been deemed ready for trial by the pretrial judge.

[22] The deadline for seeking to have a matter added to the non-jury list for the May sittings is April 15, 2021. There are currently 4 non-family civil matters on the list. That number is expected to grow as the deadline draws closer, but it bodes well for having this matter tried in May 2021.

[23] The Notice specifically provides that the court will hear motions to strike jury notices on an expedited basis prior to the April 15 deadline, and the decision of the motion judge will inform the court’s decision as to whether a matter is then added to the trial list for the May sittings.

[24] Turning now to the defendants’ specific objections to the motion, counsel argued that the case has never been adjourned and is not particularly historic. These arguments are not persuasive; the pandemic did result in the pretrial being rescheduled by 10 months to February 2021, a moderate delay but made more significant by the fact that the case arises from an incident that occurred over 5½ years ago. By the time this case could possibly reach trial with a jury – late 2022 at the earliest – the incident will be stale dated by 7 years and the litigation ongoing for over 5 years. For a plaintiff with potentially compensable psychological injuries, this is a long time to go with the additional stress of litigation in one’s life. I note also that Barikara and Sweetman involved claims that were begun in 2017 or later.

[25] The defendants’ counsel also submitted that there is no financial prejudice to the plaintiff, who has resumed working. Even if that were true it is not determinative of this motion, since the open-ended delay in obtaining a trial date constitutes prejudice. However, the plaintiff is limited to only 70% of his past income losses, daily reducing his income claim.

[26] The defendants’ counsel also submitted that a local jury would be well-suited to assess witnesses’ credibility and whether a volunteer community organization had met the standard of care required at a local community festival. I cannot see how that would not be equally true of a trial judge.

[27] Last, the defendants argue that they are not ready to proceed to trial in May 2021. This is not due to counsel’s unavailability, but primarily because the defendants (or more precisely their insurer), have instructed Mr. Collier to obtain two responding expert reports – one on liability and one to address income loss.

[28] The plaintiff’s liability report was available in February 2020; it is difficult to take seriously a plea that this should be a reason to deny the motion when the defendants have not taken timely steps to address their lack of report in the last 13 months. However, their evidence is that an expert has now been retained and a liability report is currently being prepared. There is no evidence that it will not be ready prior to the spring sittings.

[29] The plaintiff’s income loss report was served on January 15, 2021. I have been given no reason why the defendants cannot have a responding report in hand before May. The issues are straightforward, as the plaintiff is a salaried income earner.

[30] I also take into consideration that there is no evidence that Mr. Collier indicated to Justice Casullo that he needed time to obtain responding reports at either pretrial. These appear to be instructions that he received after the matter failed to settle at the second pretrial. Litigants who do not comply with the timelines for service of expert reports in r. 53.03 do so at their peril.

[31] Mr. Collier argues that the pretrial judge did not canvass issues of witness availability or trial readiness. Whatever occurred at that pretrial, the outcome was that Justice Casullo directed the parties to target the May 2021 spring sittings. I infer that she did so in the wake of Mr. Elkin’s comment at the pretrial, which the defendants’ material confirms, that he would be bringing a motion to strike the jury so that the matter could be tried this May. She would not have done so if valid concerns had been brought to her attention about trial readiness.

[32] While Mr. Collier indicated that the availability of witnesses has not been confirmed for a May trial, there remains seven weeks at this point to serve a summons if necessary. The defendants provided no evidence that witnesses are unavailable.

[33] Applying the principles to the facts of this case, I must balance:

(a) the right of the defendants to a jury trial, which “is not absolute and must sometimes yield to practicality”: Girao v. Cunningham, 2020 ONCA 260, at para. 171;

(b) the defendant has not satisfied the court that any specific prejudice will result to them from striking the jury notice;

(c) the plaintiff is ready to proceed with the trial;

(d) with diligence, the defendants can be ready for trial in May;

(e) the trial length, which I estimate to be 10-12 days on this straightforward matter, can be accommodated during the trial sittings;

(f) there is a high degree of uncertainty as to when a civil jury trial will be able to be held in this region, with a likely probability that the earliest date will be late in 2022;

(g) a process has been set up in this region to triage non-jury civil cases, and there is a strong likelihood that this matter could be reached given the current volume on the trial list;

(h) the plaintiff will undoubtedly have to update expert reports, most notably medical reports, if the matter is delayed another year; and

(i) the plaintiff’s past income loss claims are limited to 70% of his past losses. As time passes, future losses will convert into past losses which will result in an overall reduction in his income loss claims and a windfall for the defendants.

[34] When I weight these factors, I find that the defendant’s right to a trial by jury must give way to the plaintiff’s right to access justice in an affordable and timely manner. The plaintiff has requested that this court follow Justice McCarthy’s model from MacKenzie and strike the jury notice provisionally. Other than objecting to the striking of the notice, Mr. Colllier did not object to the idea that it could potentially be restored in the future if not reached before civil juries are once again empanelled in Central East Region.

[35] With the prior approval of the triage judge, I will not require the parties to write to seek permission - or present opposition – to having the matter placed on the May sittings list.

[36] For the foregoing reasons, there shall be an order to go as follows:

(1) The defendants’ jury notice is provisionally struck;

(2) The matter shall be placed on the May 17, 2021 sittings for an estimated 12-day trial before a judge alone at Barrie (to be held remotely or as directed by the trial judge);

(3) Should the matter not be reached or called for trial either in the May or November 2021 Central East civil sittings, the defendants shall be at liberty to bring a motion, on notice, to have the jury notice restored.

[37] The parties have agreed that costs will be paid to the successful party on the motion in the amount of $2,825 inclusive of HST. Accordingly, this court orders that the defendants opposing the motion shall pay costs to the plaintiff fixed in the amount of $2,825 and payable within 30 days.

HEALEY J.

Date: March 29, 2021