Superior Court of Justice
COURT FILE NO.: 26951/15
DATE: 2021-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CECIL BRIAN EVANS and DEBORAH EVANS
Plaintiffs
– and –
JESSE ROBERT BOUCHARD- CHIARELLO and ROBERTO CHIARELLO
Defendants
COUNSEL:
Dalles J. Lee, for the Plaintiffs
Nicholas A. Papas, for the Defendants
HEARD: April 9, 2021
VARPIO J.
REASONS ON MOTION
[1] This is the plaintiffs’ motion seeking to strike the defendants’ jury notice. The plaintiffs are approximately 70 years old and claims that Mr. Evans suffered injuries as a result of a motor vehicle accident that occurred on January 16, 2015 in the City of Sault Ste. Marie. The defendants served a jury notice dated December 13, 2016. The matter was set down for trial on June 7, 2019, prior to the COVID pandemic.
[2] Since the pandemic, jury trials in the province have not been heard as per normal. Currently, there is a lockdown in place as well as an Order from the Chief Justice effectively preventing the hearing of jury trials for the time being.
[3] In Sault Ste. Marie, there is a rolling jury trial list. Jury sittings are set and trial matters are placed upon the list and given priority according to a variety of factors, including the age of the matter. The local trial coordinator participated in the motion today and he advised that:
All jury trials are going to be spoken to in the fall of 2021 to determine whether or not jury trials can proceed;
The only civil jury sittings currently scheduled are in January of 2022. There are currently 24 matters on that list, and the trial coordinator expects that number to increase to approximately 35;
If scheduling, backlog and other factors permit, another jury sitting could be booked in 2022;
The instant matter has some priority given its age but that there are other matters with priority on the list. Currently, it sits around twelfth on the list in terms of priority, although that could change and the matter could be given more priority. Nonetheless, there is no guarantee that this matter will be heard in January of 2022; and
If the jury notice in this matter were to be struck, a “judge alone” trial date could be set in the first half of 2022.
POSITION OF THE PARTIES
[4] The plaintiffs submit that the jury notice ought to be struck because:
a. The length of delay likely to be suffered if the matter continues as a jury trial is likely to be meaningful;
b. The age of the plaintiffs is such that their matters require prompt adjudication;
c. The plaintiffs will suffer actual prejudice by delaying the matter because:
i. The deductible in MVA cases will go up in the intervening time period thus depriving the plaintiffs of money;
ii. The longer the trial takes, the greater the claim for past income loss relative to future income loss. In that the former has a discount associated with it, the plaintiffs will suffer tangible prejudice flowing from the delay; and
iii. If the matter is delayed unduly, fresh expert reports will be required.
[5] The defendants submit that they have a right to a jury trial and that said right ought not be interefered with lightly. The defendants prepared their case a jury case and that a change at this juncture would be prejudicial, although I note that they did not provide evidence as to why this is the case.
[6] The defendants also submit that there is no guarantee that the case will be heard fast if it is to proceed without a jury.
[7] With respect to the points described in paragraph 4(c) above, the defendants state that the plaintiff’s arguments are speculative.
ANALYSIS
The Governing Legislation
[8] Rule 47.02 governs the striking of a jury notice:
ACTIONS TO BE TRIED WITH A JURY
47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury. R.R.O. 1990, Reg. 194, r. 47.01.
STRIKING OUT JURY NOTICE
Where Jury Notice not in Accordance with Statute or Rules
47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,
(a) a statute requires a trial without a jury; or
(b) the jury notice was not delivered in accordance with rule 47.01. R.R.O. 1990, Reg. 194, r. 47.02 (1); O. Reg. 344/19, s. 1.
Where Jury Trial Inappropriate
(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge. R.R.O. 1990, Reg. 194, r. 47.02 (2).
Discretion of Trial Judge
(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury. R.R.O. 1990, Reg. 194, r. 47.02 (3).
[9] Rule 48.04(1) states that a party may not bring a motion to strike the jury notice without leave, once the action has been set down for trial. Given the magnitude of the novus acuts intervenes caused by COVID-19, the defendants quite rightly consented to me granting leave. I so grant said leave.
The Jurisprudence
[10] The Ontario Court of Appeal recently dealt with the effect that COVID-19 has had upon the conduct and availability of civil jury trials. In Louis v. Poitras, 2021 ONCA 49 at para 17, the court described a litigant’s right to a jury trial:
It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party's entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial. This court described the role of the court this way in Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal refused, [2006] S.C.C.A. No. 496:
While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.
The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible.
[11] At paras 22, 23 and 25 of Louis, the Court stated:
The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time of the motion. Accordingly, the motion judge found that "the real and substantial prejudice arises simply by reason of delay": at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that "delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice." As Brown J.A. notes, the whole raison d'être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the "most expeditious...determination of every civil proceeding on its merits:" Louis v. Poitras, 2020 ONCA 815, at para. 33.
This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system's systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.
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. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted.
[12] It is clear, therefore, that efficient justice is a consideration on such a motion and, depending upon the given facts of a case, this phenomenon may prove to be determinative.
[13] Two lines of cases have developed in Ontario since the COVID-19 pandemic. One line of cases adopts the “wait and see” approach, whereby the court delays the decision to grant the motion to strike the jury notice to the trial judge. The other line of cases makes the decision immediately based upon local conditions.[^1]
Application to This Case
[14] Upon consideration of all the arguments, this is a fairly easy call. First, the plaintiffs’ arguments regarding the change in deductible, the change in future vs. past loss of income and the cost of expert reports hold no weight. I am not convinced that these are legally correct positions in so far as a change in deductible or movement from future to past income loss is a legal phenomenon whereby the application of a law changes. I do not know if this type of change is properly considered “prejudice”. I leave that for another day.
[15] With that being said, I disagree with the defendant that a non-jury trial date is uncertain. As was noted above, the strong likelihood is that a non-jury trial date can be secured in the first half of 2022. Conversely, it would appear that hearing the matter via jury in early 2022 is, at best, uncertain. Thus, the combination of the plaintiff’s age, the uncertainty in the ability to get jury dates and the relative expedience with which a judge-alone trial can be secured overwhelm the defendant’s arguments. It is true that the right to a jury trial is important, but as noted in Louis, it ought not override the larger concerns about “justice delayed is justice denied” where the delay in justice can cause real prejudice. In this situation, an older litigant will quite possibly have his legal affairs put on hold for several years pending the availability of a jury trial. Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87 speaks to the prejudice associated with delayed justice and, as a result, I need not repeat the damage that happens when litigants cannot get timely adjudication. It goes without saying that this phenomenon is exacerbated when older litigants are involved. Had the plaintiffs been younger, I may have considered this motion in a different light.
[16] Put another way, it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023 whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.
[17] Thus, the motion is granted and the jury notice is hereby struck.
[18] The plaintiffs asked for me to direct that the trial coordinator be directed to provide the plaintiffs with the first available trial time. I decline to so order.
COSTS
[19] The parties will provide me with costs submission not exceeding two pages within 15 days of the release of these reasons.
Varpio J.
Released: April 12, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CECIL BRIAN EVANS and DEBORAH EVANS
- and –
JESSE ROBERT BOUCHARD-CHIARELLO and ROBERTO CHIARELLO
REASONS ON MOTION
Varpio J.
Released: April 12, 2021
[^1]: Roszczka v. Tiwari, 2021 ONSC 2372 at paras 36 and 37.