Losty v Reesor., 2021 ONSC 2622

COURT FILE NO.: CV-16-557915

DATE: 20210412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHEN LOSTY, MICHELLE LOSTY, BENJAMIN LOSTY, by his Litigation Guardian, Stephen Losty and LIAM LOSTY, by his Litigation Guardian, Stephen Losty

Plaintiffs

– and –

PETER M. REESOR and MONIKA KASZKOWIAK

Defendants

Wei Jiang, lawyer for the the plaintiffs

David Merner, lawyer for defendants

HEARD: April 6, 2021

ENDORSEMENT

DIAMOND J.:

Overview

1The plaintiffs bring a motion seeking an order striking the jury notice in this proceeding. The defendants oppose the relief sought.

2The motion was argued before me on April 6, 2021. At the conclusion of the hearing I took my decision under reserve.

Summary of Relevant Facts

3The plaintiffs seek damages for injuries allegedly suffered as a result of a motor vehicle accident which took place on August 17, 2014. The plaintiff Stephen Losty (“Losty”) claims general and special damages, including loss of income and future care costs, while the remaining plaintiffs all claim damages pursuant to the provisions of the Family Law Act, R.S.O. 1990 c.F3.

4The Statement of Claim was issued on August 4, 2016. The parties participated in settlement negotiations both prior to and after the issuance of the claim. Those settlement efforts continued until approximately late 2017, when the negotiations broke down and the plaintiffs requested the service and filing of a Statement of Defence.

5The defendants served a Statement of Defence and a Jury Notice on January 25, 2018. Over the next (approximate) 18 months, documentary and oral discoveries were completed. The action was thereafter set down for trial.

6In an attendance in Trial Scheduling Court on November 13, 2019, a three week jury trial was scheduled on consent of the parties to commence during the May 2021 Toronto trial sittings. While the plaintiffs submit that it was the defendants’ refusal to concede liability which necessitated the trial lasting up to three weeks (and therefore a longer wait to trial), the defendants submit that as the plaintiffs refused to confine their damages within the limits of the applicable insurance policy, the defendants had no choice but to maintain lability as a live issue for trial.

7It is common ground that as a result of the COVID-19 pandemic, all Ontario jury matters were suspended in March 2020. While jury selection resumed in mid-September 2020 for the Toronto region, all Ontario jury matters were again suspended on or about October 9, 2020. This suspension remains in place to the present date, and the last Direction from the Chief Justice of the Superior Court of Justice indicated that the earliest possible date upon which jury trials could resume was July 5, 2021.

Position of the Plaintiffs

8If the trial was to proceed as scheduled during the May 2021 Toronto sittings, seven years will have passed since the date of the accident. The plaintiffs submit that they are already subject to considerable prejudice which will only be exasperated by further delay.

9The plaintiffs have provided additional expert evidence from their forensic accountant to support the position that, as a result of the governing legislation, Losty will only be able to recover 70% of his lost income prior to trial. The plaintiffs’ expert originally opined that Losty’s income loss was anticipated to total approximately $470,000.00.

10In the event that the trial is further adjourned, not only would the plaintiffs need to incur additional expenses by updating their expert reports and preparing for trial anew, according to the plaintiffs’ expert, but also Losty’s loss of income claim would be further reduced by approximately $64,000.00 with a six month trial delay, and $133,000.00 with a one year trial delay.

11The above figures are based upon Losty’s loss of income claims in the amount of $470,000.00 being ultimately accepted by the Court.

Position of the Defendants

12A pre-trial occurred on February 22, 2021, but not all of the trial management issues were addressed or completed. A mediation is currently scheduled to take place on May 7, 2021.

13The defendants are ready for a trial with a jury, and have approached and prepared this case on the basis that the action would be tried by a jury.

14During argument, the defendants conceded that, at best, it is currently unknown whether jury trials will proceed during the July 2021 Toronto sittings.

15The trial of this action has not been adjourned for any prior reason. The defendants submit that Losty’s income loss claims are significantly exaggerated, as he had been unemployed for approximately one year at the time of the accident, and earned $257,000.00 in 2019.

16It is the defendants’ position that Losty’s exaggerated income losses act as a significant barrier to any potential settlement.

Decision

17As I raised with counsel during the hearing, there is a plethora of jurisprudence developed during the COVID-19 pandemic relating to motions to strike out jury notices. There is no dispute that while the right to a civil trial before a jury is obviously important, it is nevertheless a qualified right. As held by the Court of Appeal for Ontario in Girao v. Cunningham 2020 ONCA 260, the right to a jury trial is “important and fundamental, but not absolute.”

18While the recent relevant jurisprudence continues to develop, each decision is obviously based on its own facts. More importantly, a review of that jurisprudence discloses that each decision may also vary by jurisdiction. Different jurisdictions throughout Ontario employ different resources, and each jurisdiction’s ability to offer civil jury trials is based upon numerous factors, such as available courtrooms, the number of available judges, the local ability to convene a jury panel, and whether other criminal or family trials are set to proceed before juries.

19I am guided by the recent judgment of Justice Wilson in Hazzard v. MacDonald 2021 ONSC 2283, and in particular the following relevant passages:

“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.

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…”

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.

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.

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.”

20Similar to the facts before Justice Wilson in Hazzard, if the jury notice is not struck out in this action, Losty may lose up to 30% of his loss of income claims from May 2021 to the date that this case is tried. While the plaintiffs argue that Losty’s loss of income claims will be reduced by more than $100,000.00 if the trial is adjourned for up to one year, the defendants argue that since Losty has no income losses, there is thus no resulting prejudice occasioned by the rescheduling of the trial before a jury.

21It is true that seven years have passed since the date of the accident. However, the parties negotiated until late 2017, and an attendance in Trial Scheduling Court was booked approximately two years later. No Statement of Defence was requested from the defendants for the first four years post-accident, and this delay cannot lay at the feet of the defendants.

22Even accepting the plaintiff’s argument that the three week trial estimate was caused by the defendants’ refusal to concede liability, a two week jury trial would still have been scheduled to proceed during the COVID-19 pandemic, and would not have been reached.

23The plaintiffs submit that the earlier the trial would have been originally scheduled, the earlier it would likely be rescheduled. At present, the Toronto region is aiming to avail itself of significant judicial resources to have jury trials resume during the October 2021 sittings in the event the Chief Justice lifts the ban on jury trials in the near future. While the Court is aware that another lockdown is currently in place due to the pandemic’s “third wave”, there are objective factors (such as the present availability and distribution of COVID-19 vaccines) which lead to the reasonable assumption that jury trials may indeed resume in 2021, or perhaps early 2022.

24In my view, and despite the able submissions of the counsel for the plaintiffs, on the record before me I do not find that the plaintiffs have discharged their onus. Striking the jury notice is not a just or necessary result in the circumstances of this case. I cannot find at the present time that justice to the parties will be better served by the discharge of the jury. As put by the defendants, it is not in the interest of justice to rush a case to trial before a judge only based upon speculation of the length of any potential delay.

25For these reasons, the plaintiffs’ motion is dismissed without prejudice to the plaintiffs’ right to renew this motion in the event circumstances change and the Court remains unable to offer the parties a trial before a jury at the time of any new rescheduled trial date.

26In my view, the costs of this motion are best reserved to the discretion of the trial judge.

Diamond