OSHAWA COURT FILE NO.: CV-19-3041

DATE: 20210407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NICHOLAS TREIERS

Plaintiff

– and –

MICHAEL KMITH and A1 ON ONE HOME CARE INC.

Defendants

Ms. T. Vanounou, for the Plaintiff

Ms. M. Harper, for the Defendant

HEARD: March 26, 2021

REASONS FOR DECISION ON MOTION

Casullo J.

Overview

[1] The plaintiff brings this motion for an order striking the defendant’s jury notice pursuant to r. 47.02 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194. Given that the plaintiff has set the action down for trial, leave of the court is required: r. 48.04(1). The defendants do not object to leave being granted.

[2] This matter was set down for trial in the early days of the COVID-19 pandemic. However, it can fairly be said that the magnitude and duration of the pandemic represents a substantial and unexpected change in circumstances. Leave is granted to bring the motion.

[3] This is one of a growing number of motions to strike jury notices in Central East. The proliferation of such motions has been prompted by the February 10, 2021 Notice to the Profession – Central East Region – May 2021 Civil Sittings Trial List (the “Notice”). The Notice advised the Bar and all litigants with civil matters that the court will proceed with its regular trial sittings commencing May 17, 2021 for three weeks. Only non-jury matters will be heard – there will be no civil jury trials.

[4] For those matters where jury notices were served, counsel are advised that motions to strike jury notices would be heard, on an expedited basis, up to April 14, 2021. Counsel are further advised that while the Notice specifically addresses the May 2021 sittings, the court does not anticipate having the capability to conduct a civil jury trial until well into 2022.

[5] Pursuant to the Notice to the Profession and Public Regarding Court Proceedings – March 17, 20201 UPDATE, jury trials were anticipated to resume on June 7, 2021, at the earliest, in the Central West, Central East, Central South and East regions.

[6] We are now in the midst of the third wave of the COVID-19 pandemic. On April 3, 2021, the Ontario government imposed a provincewide emergency brake, which is expected to be in place for at least four weeks. As the related news release advises “[w]e are facing a serious situation and drastic measures are required to contain the rapid spread of the virus, especially the new variants of concern.”

[7] As an essential service, our courts remain open, but in-person proceedings are limited to only those that are absolutely necessary. Jury trials remain suspended.

Background

[8] This action arises out of a pedestrian/motor vehicle collision on April 6, 2018, when the plaintiff was struck as he crossed at a crosswalk.

[9] The statement of claim was issued on November 8, 2019. The statement of defence and jury notice were filed on December 9, 2019. Following examinations for discovery, the matter was set down for trial on June 8, 2020, and a pre-trial was held February 1, 2021.

[10] The action is ready for trial, but for production of an employment file and the accident benefits file, which can be completed in short order. The trial is estimated to be between four and six days in length. It has not yet been placed on a trial list and there have been no adjournments.

Positions of the Parties

Plaintiff

[11] The plaintiff submits that the delay posed by the pandemic is prejudicial, serving as it does to undermine the “service guarantee” articulated by the Court of Appeal in Louis v. Poitras, 2020 ONCA 815, at para. 33:

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.

[12] If the jury notice is allowed to stand, the plaintiff will face a wait of at least a year, thereby denying him the benefit of a just, expeditious and affordable determination. The delay will also result in non-compensable losses. To wit, the longer it takes to get to trial, the greater the portion of his future income loss will convert to past loss that is reduced by 30%, pursuant to ss. 267.5(1)2 and 267.5(1)3 of the Insurance Act, R.S.O. 1990, c. I.8.

Defendants

[13] The defendants submit that the plaintiff has failed to demonstrate what prejudice he would suffer if the jury notice were not struck. This is a relatively young matter that can afford to wait for civil jury trials to resume. There has been no delay thus far. The plaintiff is in good health, he has been employed since the collision, he was able to graduate from college, and there is no evidence he is facing pressing financial need.

[14] Defence counsel is scheduled to commence a trial at some point during the Toronto sittings, which commence May 31, 2021 and run for the entire month of June.

[15] Liability is in dispute, and the defendants’ third-party policy limits are at risk. These are issues the defendants want heard and determined by a jury.

[16] Trial by jury is a fundamental right that is enshrined and protected by the jurisprudence. The following points delineate the very real potential for prejudice to the defendants if their right to a jury trial is denied:

• Juries do not consider inadmissible evidence. For example, if a liability report or certain evidence is contested, a voir dire takes place in the absence of the jury.
• Juries preserve the independence of the trier of fact. All judges were lawyers once, and some may harbour inclinations one way or another. Systemic and unconscious bias is a reality that cannot be ignored. Six triers of fact instead of one produces a greater chance of balancing out that bias.
• Community participation encourages public respect for the law and the judiciary.
• Juries are not aware of the statutory deductible, which ensures they remain unbiased triers of fact.
• Judges are aware of the statutory deductible, and it is possible this knowledge may knowingly or unknowingly cause judges to influence their calculation of the plaintiff’s damages.

Legal Principles

Jury versus Judge-Alone Trials

[17] A word must be said about defence counsel’s submissions as to why prejudice could result if this action was tried by a judge sitting without a jury.

[18] It needs hardly be said that litigants are entitled to unbiased legal proceedings. Judges are expected to evaluate matters on their merits. Judges are capable of setting aside their personal views and acting impartially. Judges are also fully capable of ignoring evidence that is deemed inadmissible in a voir dire.

[19] As the Supreme Court held in Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 59:

“[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.

[20] There is no evidence that a judge-alone trial will offer the defendants a lesser form of justice than they would receive from a jury trial.

Striking the Jury Notice

[21] The right to a jury trial is a substantive one that has long been recognized. A party moving to strike a jury notice bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37.

[22] Judges considering motions to strike have broad discretion to determine how the trial will proceed: Cowles, at para. 38.

[23] In his pre-pandemic decision, MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, Justice Myers held that on motions to strike, the court must engage in a search for the process that most justly resolves the litigation: at para. 28. In so holding, Myers J. elucidated the following principles, at para. 30:

• Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
• Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.
• The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[24] The Court of Appeal recently provided welcome guidance on motions to strike jury notices in Louis v. Poitras, 2021 ONCA 49, at para. 3, and in particular, the fact that there is no “one size fits all” provincial solution as to when jury notices should be struck:

[l]ocal conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.

[25] Two recent decisions on motions to strike juries emanating from Central East, are worthy of note. In MacKenzie v. Pallister, 2021 ONSC 1840, at para. 14, Justice McCarthy provided a region-specific overview on the reality of jury trials as of March 11, 2021:

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.

[26] On March 26, 2021 Justice Healey released Frye v. Pattenden, 2021 ONSC 2373, which provides the most up-to-date advice from Regional Senior Justice Edwards regarding jury trials, at para. 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.

[27] As of today’s date, the RSJ confirms that the resumption of civil jury trials remains as set out in Frye. I pause to note this is an Oshawa matter, and Oshawa’s courthouse has two courtrooms outfitted to conduct socially distanced jury trials. However, the extra courtroom will have no discernable impact on civil matters. As I noted in Francisco, once jury trials are up and running, the imperative will fall to conducting criminal jury trials: Francisco v. Li, 2021 ONSC 1032, at para. 27. This too has been confirmed by the RSJ.

[28] There is no escaping the fact that, given the proliferation of the COVID variants, and the province’s recent plunge into an emergency brake, civil jury trials are fading even further into the sunset.

[29] I appreciate this matter is young when compared to the age of some actions. If this motion were dismissed, it is possible that the by the time action was heard, it could be five years old. However, I am not prepared to penalize the plaintiff for his counsel’s efforts to advance the action expeditiously. This would serve to compound the culture of complacency the Supreme Court warned against in Jordan:

While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view, developments since Morin demonstrate that the system has lost its way…contributing to a culture of delay and complacency towards it.

R. v. Jordan, 2016 SCC 27, at para. 29.

[30] While Jordan spoke to complacency in the criminal justice system, this principle is equally germane to the realm of civil litigation. Parties have become conditioned to accept that their matter might not be heard for four, five, even six years or longer. These wait times fly in the face of the raison d’être animating r. 1.04 of the Rules of Civil Procedure: the reduction of unnecessary cost and delay to litigants.

Conclusion

[31] Based on the considerations set out above, a balancing of each party’s rights leads me to conclude that justice will be better served by trying the case without a jury. Accordingly, the plaintiff’s motion is granted, and the defendants’ jury notice is struck.

[32] In the event defence counsel’s Toronto trial presents a barrier to this case being reached during the Central East spring sittings, the matter should be placed on Central East’s Running Trial List, which will resume immediately thereafter.

Costs

[33] Counsel are encouraged to agree on the costs of the motion. If they are unable to do so, they may arrange a short costs hearing, before me, through the Trial Coordinator. Concise briefs are to be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

Casullo J.

Released: April 7, 2021