DATE: 20210421

ONTARIO

SUPERIOR COURT OF JUSTICE

Guy Farrell and Stanley Pasternak, lawyers for the Plaintiff

Cynthia Verconich, lawyer for the Defendants,

Sedvi Begolli, Megabus Northeast, LLC,Megabus USA, LLC, Coach USA Inc., and The

Travelers Indemnity Company of Connecticut

Erica Lewin, lawyer for the defendant, Gayle

Tennant

Katherine Badenoch, lawyer for defendant,

Elizabeth Silcox

HEARD: April 14, 2021

REASONS FOR DECISION

G. DOW J.

[1] This matter is scheduled to proceed to trial for four weeks commencing on May 10, 2021. The parties have a further pre-trial conference scheduled for April 22, 2021.

[2] The plaintiff, James Clarke's motion is to strike out the jury notice and have the trial proceed virtually. The defendants, Sevdi Begolli, Megabus Northeast, LLC., Megabus USA, LLC., Coach USA Inc., and The Travelers Indemnity Company of Connecticut ("the Begolli/Megabus") have a pending motion to amend its Statement of Defence and Crossclaim. Justice Steele assigned this motion to be heard at the same time given the circumstances. None of the parties raised any concern with leave being required for any of the relief sought.

Background

[3] The plaintiff, then 42 years of age, was a passenger in the Begolli/Megabus on June 15, 2011 when it collided with vehicles operated by the defendants, Gayle Tennant and Elizabeth Silcox on the Queen Elizabeth Way. Liability for the collision is in dispute not only between the defendants but Begolli/Megabus seeks to allege contributory negligence on the part of the plaintiff as part of its proposed Amended Statement of Defence and Crossclaim. James Clarke alleges an injury to his left wrist from the accident which culminated in surgery to fuse the joint on June 30, 2017. At the time of the accident, he was employed as a bartender/manager in Barbados. He received treatment, including previous surgeries, in London, England. Mr. Clarke has resided in Ireland since March, 2014. He is in a relationship there and has a son, born on March 4, 2015. Mr. Clarke was working parttime as a retail associate in a discount clothing store prior to COVID related lockdowns.

[4] The Statement of Claim was issued May 24, 2013 and the Statements of Defence served in June to August of that year. Mr. Clarke acknowledged that the action was not certified ready for trial by him until January, 2018 pending a stable prognosis for his left wrist.

[5] The initial pre-trial conference was conducted November 28, 2019 with a trial date scheduled for March 30, 2020. The trial date was vacated as a result of the court shutdown due to the COVID pandemic. In or about August 2020, the parties were provided with the May 10, 2021 trial date. A further pre-trial in August, 2020 did not proceed due to the unavailability of a judge. In anticipation of that resumption of the pre-trial conference Mr. Clarke's counsel served material to strike out the jury notice.

[6] Given the notice on March 17, 2021 by the Chief Justice, this matter will not proceed with a jury on May 10, 2021. There was no evidence before me from the trial coordinator as to whether it can proceed virtually on May 10, 2021 without a jury.

Begolli/Megabus Motion to Amend its Statement of Defence and Crossclaim

[7] The co-defendants took no position with regard to the proposed amendments. This included detailing allegations of negligence on the part of those co-defendants in the operation of their respective vehicles. Those proposed amendments are allowed.

[8] The plaintiff opposed the following proposed amendments alleging James Clarke:

a) was contributorily negligent based on how he was seated in the bus and his failure to remain alert;

b) had failed to use the proceeds of the settlement of his accident benefit claim to mitigate his damages; and

c) had entered into an improvident settlement of his accident benefit claim.

[9] The amendments were not opposed on the basis of the provisions under Rule 26.01 that leave should not be granted because to do so would result in prejudice that "could not be compensated for by costs or an adjournment".

[10] Regarding the claim that James Clarke was contributorily negligent, this was predicated on discovery evidence from James Clarke that he was wearing a seat belt. Subsequently, the examination of the bus by a biomechanical expert, in a report dated November 13, 2019 (and served promptly thereafter), indicated that the bus was not equipped with a seat belt where James Clarke was seated. Further, his posture and not being awake at the time of the accident may have cause or contributed to the extent of his injury. Counsel for James Clarke submitted this position was unlikely to succeed and would lengthen the trial. In this regard, I was directed to caselaw that dealt with injuries to passengers on buses. The most direct statement of the law is "if an accident occurs and the passenger is injured there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger", Ruch v. Colonial Coach Lines, 1968 CanLII 30 (SCC), [1969] S.C.R. 106 (at page 114). That statement of the law does not make it impossible for the defendant to succeed. As a result, the amendment should be and is allowed.

[11] Regarding the failure to use the proceeds of the accident benefit settlement for treatment, counsel for James Clarke relied on the Insurance Act, R.S.O. 1990 c.I.8 subsection 267.8(22). That subsection (and the preceding subsection) deal with defining when an accident benefit is available or more precisely, deemed not available to a plaintiff. This section also deals with what accident benefits can be deducted from a tort award of damages. That is not what is being alleged as I read the proposed amendment. Rather, it raises the plaintiff’s failure to use the funds made available from the settlement for the purpose intended and that this resulted in a failure by James Clarke to mitigate his damages. It is open to James Clarke to explain what the proceeds of the accident and benefit settlement were used for and why. This becomes an issue to be determined. As a result, the proposed amendment should be and is allowed.

[12] Regarding the claim of improvident settlement of the accident benefit claim, counsel for James Clarke raised that the settlement was made with the insurer of the bus and its driver. While there is no doubt the insurer and the bus company (and its driver) are related parties, they are different entities at law with different responsibilities. Counsel for James Clarke submitted the defence is not known to law. I disagree. It may be rare and difficult to prove, particularly in these circumstances, but it can occur. Counsel for James Clarke submitted it invites evidence at trial regarding the role of the accident benefit insurer, its handling of the claim and the burden on this defendant to demonstrate James Clarke was entitled to more. I cannot conclude that prevents the allegation from being raised.

[13] Finally, counsel for James Clarke raised a potential for a mistrial in tendering evidence of insurance which, years ago, was not allowed to be heard in personal injury cases that proceeded with a jury. With respect, in my experience the mention of insurance in a personal injury trial has not resulted in a mistrial in many years. The existence of insurance has become well known to the public (and juries). It is routinely the subject of evidence at personal injury trials in this province. As a result, the proposed amendment should be and is allowed.

Plaintiffs Motion to Strike out Jury Notice

[14] Counsel for James Clarke relied on the following in support of its submissions that justice to the parties will be better served by striking out the jury notice:

a) the direction from the Court of Appeal in Louis v. Poitras, 2021 ONCA 49 (at paragraph 17) that the court has a broad discretion to determine the mode of trial and delay itself can constitute prejudice sufficient to strike out a jury notice;

b) as a case delayed by the suspension of civil jury trials as a result of the pandemic, the fact the accident giving rise to the action occurred almost ten years previously may justify striking out the jury notice (Louis v. Poitras, supra, at paragraph 33);

c) an analysis of the factors to consider as set out in Johnson v. Brielmayer, 2021 ONSC 1245 (at paragraph 32); and

d) additional factors of uncertainty, reduced loss of pre-trial income, deteriorating memories and increased expenses to the litigants.

[15] Regarding this court's broad discretion, it must be restated that the right of a party to proceed to trial with a jury is a "substantive right and should not be interfered without just cause or cogent reasons" (Cowles v. Balac [2006], 83 0.R. (3d) 660 at paragraph 36). The onus is on the party seeking to strike out the jury notice to demonstrate that justice to the parties would be better served proceeding without a jury. As recently as April, 2020, the Court of Appeal has stated while "the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality" (Girao v. Cunningham, 2020 ONCA 260, at paragraph 171).

[16] The defendants all submit that they wished to proceed to trial with a jury and adopt the submissions of counsel for Begolli/Megabus that preparing for a jury trial has been part of their litigation strategy. It was submitted that James Clarke is advancing a loss of income claim of $50,000.00 to $80,000.00 per year but has failed to report or document such an income level with complete records of pay stubs, bank deposits or returns to government tax agencies which would substantiate same. As a result, the credibility of the plaintiff will be a central issue.

[17] In Louis v. Poitras, supra, (at paragraph 26) the Court of Appeal stated "A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province." As stated in a decision from the Toronto region released March 12, 2021, Toronto appears to be uniquely situated given it has a separate building with retrofitted court rooms dedicated to hearing civil jury matters and with off-site premises, if necessary, to conduct jury selection (Hazzard v. MacDonald, 2021 ONSC 2283 at paragraphs 16 to 18). When weighed against the substantive right of a party to proceed to trial with a jury, I conclude this is a factor in favour of dismissal of the motion.

[18] Regarding the submission that delay itself can constitute prejudice and that the accident giving rise to this action occurred almost ten years ago, I would agree those are important factors for my consideration. However, this undue length of time is undermined by James Clarke's admission that he was not in a position to certify the action ready for trial until January, 2018 after the fusion surgery in June, 2017 and a stable prognosis had been made. I conclude this is not as strong a factor in favour of striking out of the jury notice as it would first appear.

[19] Determining the factors identified in Johnson v. Brielmayer, supra (at paragraph 32) I have already addressed the resources available to the court to outfit its court rooms to allow for the conduct of jury trials in as safe a manner as known at the time the trial commences.

[20] Regarding the local impact of the pandemic and the likely timing of resumption of jury trials, this is complicated by the rising level of cases, the imposition of increased and greater restrictions in an attempt to reduce the number of cases and the ongoing administering of vaccines to individuals in the Toronto region. The current trend of rising case numbers and limited supply of vaccine suggests this favours striking out of the jury notice.

[21] Regarding prejudice to the parties caused by delay, I have already addressed this factor. Personal injury cases by their nature involve life changing events and a single opportunity at the trial to recover compensation for the balance of the injured victim's lifetime. The marshalling of the best evidence on behalf of an injured victim may take years to become available. That appears to have occurred here. In this case, the 23 months between when the accident occurred and the Statement of Claim was issued should not be to the detrirment of the defendants. Similarly, and apparently with good reason, the more than four years between the delivery of Statements of Defence and certification of the case as ready for trial, has been acknowledged by the plaintiff to have been required given the nature of the injury. This essentially reduces the time by one half from when the accident occurred and I thus conclude this is a neutral factor.

[22] The history of adjournments is of concern. In the absence of the COVID pandemic, this matter should have proceeded at trial in March, 2020. It was adjourned through no fault of the parties. While the motion material to strike out the jury notice was prepared in August, 2020, a return date for the hearing of this motion was not secured until it came before me on April 14, 2021. As a longer than fifteen day personal injury trial in Toronto, further significant delay will occur if the motion to strike the jury is dismissed. However, as stated by Justice D. Wilson, noting her position as co-team lead of civil matters in Toronto "there is no difference in booking a 20-day jury trial when compared to booking a 20-day non-jury trial in Toronto" (Hazzard v. MacDonald, supra, at paragraph 17).

[23] Regarding uncertainty, loss of income before the trial, deteriorating memories and increased expenses to the litigants, I would indicate the following. The uncertainty of when this trial can proceed is of itself a concern to the timely delivery of civil justice between individuals. As will be detailed below, it is of greater concern given James Clarke's residence outside the jurisdiction. I note that there are decisions which have taken an alternative approach, particularly in regions outside Toronto, where judges have ordered cases adjourned to a future date with an order that if no civil jury trials are being conducted, then the matter shall proceed by judge alone. This is the second time this matter has been scheduled to proceed to trial. It is the first time a party has sought to have the jury notice struck out so that it may proceed. Should this matter be adjourned because it cannot proceed with a jury on May 10, 2021, I would take notice that as a long civil trial, any new date will be months away. This increases the delay. It also increases the likelihood jury trials will have resumed. I conclude this is a neutral factor.

[24] Regarding the loss of income claimed before trial, this is a reference to subsection 267.5 of the Insurance Act, R.S.O. 1990 c. 1.8 which reduces income loss awards in motor vehicle personal injury claims to seventy percent of gross income before trial. That reduction to the compensation available for victims of motor vehicle collisions in Ontario has existed since September 1, 2010. That reduction replaced a previous provincial law which only permitted recovery of eighty percent of net income. Like other aspects of compensation for injured victims in motor vehicle claims in Ontario, it is something weighed by the injured person and his or her counsel as part of determining the nature and manner of proceeding. The past loss of income claim was submitted to be a major issue in dispute in this matter. It does not persuade me as a sufficient reason to strike out the jury notice.

[25] Regarding deteriorating memories, no specific evidence was tendered that put in issue that this matter was different from other motor vehicle personal injury claim. Those involved in motor vehicle collisions are free to make notes of their recollection at any time after the incident occurs and use them to refresh their memory. Often, statements are given by those involved as to what happened shortly after the accident to police officers who complete an investigation report of the circumstances of the accident. In addition, parties can rely on their discovery evidence which was hopefully tendered after preparation and review of their observations with their counsel prior to giving such evidence. It does not persuade me as a sufficient reason to strike out a jury notice.

[26] Counsel for the plaintiff also raised a concern with the availability of counsel should the matter be further delayed. The schedule and availability of counsel is something to be dealt with between counsel and the trial co-ordinator. I am unable to conclude, given all the circumstances presented in this matter, that it is a sufficient reason to strike out the jury notice.

Plaintiff Motion to Tender Evidence by Videoconferencing

[27] Regarding increased expenses, James Clarke did submit an estimate of his anticipated expenses if required to attend in Toronto for the trial should it proceed on May 10, 2021. This was also part of ancillary relief to permit him to tender evidence and be cross-examined remotely. The law in this area was previously quite restricted. However, the post COVID pandemic reality and the need to adapt with greater use of reliable technology has proceeded and has met with considerable success. As part of "creative ways to ensure that parties get their day in court in a timely manner" (Louis v. Poitras, supra at paragraph 2) the law has shifted and testimony by video conference has become an acceptable alternative in circumstances where travel is restricted and may raise health concerns.

[28] The defendants opposed this request on the basis of credibility being a central issue between the parties. However, no specific evidence was tendered as to why or how the trier(s) of fact are unable to determine the reliability of oral evidence when it is observed on a screen as opposed to in person. James Clarke estimated he would incur expenses of $22,545.00 to attend in Toronto personally for the trial. Of this amount, almost $4,500.00 was related to COVID pandemic testing and quarantine. In order to eliminate additional delay and reduce the expenses, it is logical that the party putting forward the evidence on which it intends to rely should be permitted to request the manner and mode the witness gives that evidence. This is, of course, subject to it being demonstrated by the opposing party that proceeding in such a manner would be inappropriate. In this regard, care must be taken by the party seeking to tender evidence remotely to ensure that the court and its staff along with all responding parties have the requisite equipment and technology, including hardware and software, in place to ensure the tendering of the evidence proceeds as close as possible to as if the witness was in the court room.

Conclusion

[29] The motion by Begolli/Megabus to amend its Statement of Defence and Crossclaim is granted.

[30] The motion by James Clarke to strike out the jury notice at this time is dismissed. As a result, this trial of this action scheduled to commence May 10, 2021 is adjourned to the next date available from the Civil Long Trial Coordinator. The dismissal of the motion to strike the jury is, of course, without prejudice to it being renewed by any party as circumstances may warrant and subject to any further order of the court.

[31] The motion by the plaintiff that all witnesses testify by video conferencing is granted, in part. That is, any party attending at the trial may tender its evidence from a witness by video conference, having given notice to all other parties of its intention to do so at least 60 days in advance of the new trial date. Further, that party shall have taken all steps required to ensure the necessary equipment and technology, including hardware and software available to all parties in a manner acceptable to the presiding trial judge. I urge the parties to confer between themselves and the court in this regard.

Costs

[32] Counsel for the three opposing defendants sought costs in the amounts of $2,305.00, $2,645.78 and $2,888.00 inclusive of fees, HST and disbursements relating to the plaintiff’s motion to strike out the jury notice and have the evidence tendered by video conference. Counsel for James Clarke sought costs of $12,500.00 inclusive of fees, HST and disbursements if successful. It was submitted that the significantly higher amount sought by counsel for the plaintiff was the result of the requirement to monitor all of the recent decisions addressing this issue since its materials were originally prepared in August, 2020. This included contacting counsel involved in the Louis v. Poitras, supra decision which resulted in three additional decisions after the initial Reasons were released on September 9, 2020.

[33] In addition, counsel for Begolli/Megabus sought its costs in the amount of $1,456.55 inclusive of fees, HST and disbursements with regard to its motion to amend its pleading. Given its success, I award same to Begolli/Megabus, payable by James Clarke, in that amount, in any event of the cause.

[34] Given the nature of my order on whether the jury notice is to be struck out and permitting evidence by video conferencing, and in light of the ongoing uncertainty about when jury trials may resume, there is good reason to defer and reserve the awarding of costs to the trial judge. I so order.

Mr. Justice G. Dow

Released: April 21, 2021

COURT FILE NO. CV-13-481143 DATE: 20210421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES CLARKE

Plaintiff

— and —

GAYLE TENNANT, VICTOR TRNAVSKIS, ELIZABETH SILCOX, SEVDI BEGOLLI, TRENTWAY WAGAR (PROPERTIES) INC., TRENTWAY WAGER, INC., MEGABUS INC., MEGABUS NORTHEAST, LLC, MEGABUS PHILADELPHIA, LLC, MEGABUS USA, LLC, COACH USA INC., COACH USA INC., COACH CANADA INC., ST. PAUL FIRE AND MARINE INSURANCE COMPANY, TRAVELERS GUARANTEE COMPANY OF CANADA, TRAVELLERS INSURANCE COMPANY O FCANADA, THE TRAVELERS INDEMNITY COMPANY, THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICAN and ILLINOIS INSURANCE COMPANY

,

Defendants

REASONS FOR DECISION

Mr. Justice G. Dow

Released: April 21, 2021