Court File and Parties

COURT FILE NO.: CV-17-2865

DATE: 20210329

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Allen James Stephen Barnim, William Bradley Barnim, Breanna Diane Barnim, by their litigation guardian, Cynthia Barnim, Plaintiffs

AND:

Yolanda Mitchell, Federated Insurance Company of Canada, Defendants

BEFORE: Justice K. Tranquilli

COUNSEL: D. Wallace, for the plaintiff/moving party, William Bradley Barnim D. Bryce, for the plaintiff, Cynthia Barnim C. Prince, for the defendant/responding party, Yolanda Mitchell A. Cole, for the defendant/responding party, Federated Insurance Company of Canada

HEARD: March 26, 2021

ENDORSEMENT

[1] No civil jury trials have been heard in London since the arrival of the COVID-19 pandemic in March 2020. Only a few criminal jury cases proceeded in the fall 2020 under limited court operations and strict public health measures. As of January 2021, the Chief Justice of the Superior Court of Justice suspended criminal and civil jury trials until May 3, 2021 “at the earliest” due to concerns about the evolving public health situation.

[2] As of March 17, 2021, the Chief Justice updated the notice to advise that jury trials in the Southwest Region remain under suspension and will not resume until July 5, 2021 “at the earliest”. By follow up omnibus endorsement dated March 18, 2021, LAJ Grace directed that all civil jury trials scheduled to commence in London during May and June 2021 were therefore adjourned to a civil assignment court on March 26, 2021. However, the currently scheduled running trial list date in May or June 2021 will be maintained for any civil jury trial that has been or is the subject of an order striking the jury notice.

[3] This personal injury action is on the running list for the week of May 10, 2021 and will therefore be adjourned to a later date unless there is an order striking the jury notice. The plaintiff moves to strike the jury notice so that the trial can proceed as a virtual hearing if called from the May 10, 2021 running list.

[4] The plaintiff submits that it will otherwise suffer real and substantial prejudice by the continued delay involved in waiting for the uncertain date in the future when it can proceed with a jury. The defendants advocate the “wait and see” approach and argue that an adjournment of the May 2021 trial does not cause real and substantial prejudice to the plaintiff that overcomes the defendants’ substantive right to a jury trial.

[5] The plaintiffs’ claims arise from two motor vehicle accidents in 2016 and 2017. The plaintiff Bradley Barnim claims he is disabled by serious injuries from both accidents, is no longer able to work, has lost his career and his marriage. He seeks general damages of $3.5 million and special damages of $750,000. His estranged spouse claims damages of $100,000 and their three children each claim $50,000 pursuant to the Family Law Act. The plaintiffs set the action down for trial in October 2019 and a four-week jury trial was scheduled for May 10, 2021. The matter was pre-tried, where McArthur J. directed that the plaintiffs’ motion to strike the jury notice had to be heard before April 1, 2021.

Positions of the Parties

[6] The plaintiff submits that he suffers and will continue to suffer financial harm if the trial is adjourned to an unknown and uncertain future date when jury trials can proceed. He is diagnosed with disabling physical and psychological impairments. Expert opinion filed on the motion notes his limited education and that his pre-accident earning capacity was tied to his years of experience in a successful family business. He has relied on family benevolence since the accident; however, his family ultimately removed him from his job in 2019. He has relied on company loans through the family business and long-term disability for financial support since then.

[7] The plaintiff submits that the court recognizes that delay by itself can constitute prejudice and justify striking out a jury notice: Louis v Poitras, 2021 ONCA 49 at para. 24. The conditions in London are such that there is a narrow opportunity for the judge-alone trial to proceed in the spring 2021: Purcell v. Van Pelt, 2021 ONSC 1266.

[8] The defendants contend there is no compelling evidence that justifies depriving them of their right to a jury trial. They remind me that juries play an important role in the administration of civil justice. They ought not to be deprived of this substantive right without cogent reasons and where the moving party has discharged its “substantial onus” to demonstrate that justice to the parties is better served by striking the jury notice: Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (C.A.).

[9] The defendants challenge the plaintiff’s contention of financial hardship that justifies striking the jury notice. Their defence medical expert could find no objective evidence of impairments, raising credibility issues. This would only be the first time the trial would be adjourned. With the vaccination program underway and the justice system’s provisional plan to resume jury trials in July 2021 “at the earliest”, the defendants are optimistic that the end of the pandemic is imminent such that this jury notice should remain in place.

[10] The defendants decried the lack of sworn evidence directly from the plaintiff about his alleged financial hardship arising from a continued delay of the trial. They are skeptical of his claims of financial hardship as he retains a 10% interest in a family trust which holds the highly successful family business as one of its interests. Historically, a significant part of his annual earnings was comprised of corporate dividends as opposed to employment income. The plaintiff has thus far refused to disclose particulars of his stake in the trust. The defendants also question the reality of a loan agreement between the family business and the plaintiff, noting a lack of contemporaneous documentation. The defendants argue the court should draw an adverse inference from the plaintiff’s lack of transparency on these issues and find that there is, in fact, no financial hardship caused by the delay.

Analysis

[11] The issue of leave for the plaintiffs to bring this motion was not argued, McArthur J. having reportedly given permission at pre-trial for this motion. In any event, it is broadly recognized that the pandemic presents a substantial and unexpected change of circumstances that warrants leave under rule 48.04(1): Coban v. Declare, 2020 ONSC 5580.

[12] The parties referred to the numerous jury notice decisions that have been triggered by the pandemic. It is evident these decisions turn on the specific circumstances of the case and the local conditions affecting the trial schedule. For example, I accept the defendants’ position that the history of this action is readily distinguished from the “tortured history” of the action in Ismail v. Fleming, 2021 ONSC 1425, where I concluded that justice required that the notice be struck.

[13] However, the Court of Appeal has established clear guidance on the general principles to consider with jury notices in the context of civil case management and particularly in light of the pandemic’s impact on the civil justice system: Louis v. Poitras, 2021 ONCA 49. The civil justice system faces an unprecedented crisis and judges must sometimes find creative ways to ensure that parties get their day in court in a timely manner. The right to a jury trial is not unfettered and is subject to the overriding interests of the administration of justice and issues of practicality. 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. Local conditions will necessarily impact the choice of effective solutions. Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice to justify striking the jury notice. The whole raison d’être of the civil justice system is that courts will work to provide the most expeditious determination of every civil proceeding on its merits: Louis, supra at paras. 1, 24, 25, 33.

[14] But for the suspension of jury trials, this matter is ready to proceed in May 2021 as scheduled. In the meantime, remote judge-alone trials are being heard in London and there is limited opportunity for civil non-jury matters to proceed in this fashion while jury trials remain under suspension. While the court shares the defendants’ optimism that an “end” to the pandemic is in sight (as compared to one year ago), the justice system will still need to address the effects of the pandemic for some time to come. Even during regular court operations, criminal and family (child protection) matters take priority over civil matters when rationalizing court and judicial resources. Once the court can resume more regular operations as the public health risks recedes, there will be a backlog of criminal, child protection, family and civil cases to manage. In that context, it is likely there will be only limited judicial resources for civil matters and that a civil jury trial will be delayed by many months and well into 2022 at the earliest.

[15] The Supreme Court of Canada and our Court of Appeal have stressed that the civil justice system requires a “culture shift” and that we find creative ways to ensure a timely disposition of disputes. To permit adjournment of this matter to an unknown date in the future, at which time our justice system will be managing the general backlog of criminal, family and civil cases created by the pandemic, is to promote a culture of complacency and willingness to accept delay; one which we cannot afford with the additional pressures brought on by the pandemic: Hyrniak v. Mauldin 2014 SCC 7; Louis v. Poitras, 2020 ONCA 815.

[16] The court is satisfied that both the parties’ interests and the broader interests of the administration of justice leads to the conclusion that it is preferable to maintain this trial date and therefore strike the jury notice. In the broader interests of justice, those cases that are ready to be heard should be heard while the court has available resources in which to do so. The court acknowledges that there is a serious dispute regarding the plaintiff’s injuries and damages; however, this does not lead to the conclusion that a jury notice must remain. Issues pertaining to the plaintiff’s credibility or the extent of his income loss caused by the accident remain to be determined on their merits at trial and are not probative of whether the jury notice ought to be retained in this instance. The defendants’ substantive right to a jury is a qualified one and, in this case, must give way to practicalities.

[17] I am mindful that this proceeding has not suffered a history of previous adjournments and that but for the impact of the pandemic, this motion would not have been successful. There is also a possibility that the matter may not be called by the trial coordinator for trial in May 2021, which would mean that it would nevertheless be adjourned to a future date, when a jury trial may be feasible, thus endorsing the defendants’ “wait and see” approach with the benefit of hindsight. I will therefore seek to strike a balance between the interests in dealing with this action without delay and preserving the defendants’ jury notice where practicable. LAJ Grace has fashioned such a remedy in another matter just released: Weaver v. Clunas, London Court File No. 2440/16 (unreported). In my view, the order in that decision is well-suited to the situation in this action. It is also in line with an alternative proposal made by the plaintiffs on this motion.

[18] Accordingly, I order that if this matter is called to trial during the weeks of May 10 or May 17, 2021, the jury notice is struck. However, if the matter is not called by the trial coordinator during those weeks due to a lack of judicial resources, the jury notice shall be maintained, without prejudice to the plaintiffs’ right to renew this motion, provided that such a renewed motion shall not be brought until the rescheduled trial date is no more than four months away from the motion date. Such a renewed motion will require evidence from the parties concerning the status of the civil list at that time.

I encourage the parties to resolve the issue of costs. If they cannot agree, short written submissions of three pages or less may be delivered by the plaintiff and defendant by 4:30 p.m. on April 13, 2021 and April 23, 2021 respectively.

Justice K. Tranquilli

Date: March 29, 2021