ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-512290

DATE: 20210503

BETWEEN:

THINESH PREMANATHAN

Plaintiff

– and –

VATHANAGOPAN KANDASAMY, 6757596 CANADA LTD. and/or 1475032 ONTARIO INC.

Defendants

Doug Wright, for the Plaintiff

Deanna M. Stea, for the Defendants

HEARD: April 8, 2021 by videoconference

A. Ramsay J.

OVERVIEW

[1] The plaintiff seeks leave of the court to bring this motion to strike the defendants’ jury notice pursuant to rule 47.02 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194, and permitting the action to proceed to trial by judge alone on the basis that the Covid-19 pandemic has delayed matters indefinitely and it is unknown when civil jury trials will resume.

[2] This matter is scheduled for a two-week jury trial on the June 2021 sittings in the Toronto Region.

Leave to Bring the Motion

[3] The plaintiff set the action down for trial and leave of the court is required to bring this motion: rule 48.04(1). The defendants, rightly so, do not object to leave being granted. Leave of the court is therefore granted to the plaintiff to bring this motion given the considerable body of cases, now available, which have concluded that the pandemic presents a substantial and unexpected change of circumstances justifying leave.

Background

[4] This action arises from a motor vehicle accident that occurred on September 17, 2012 in the City of Toronto, in the Province of Ontario. The plaintiff, then 25 years old, allegedly sustained serious and permanent injuries as a result of the accident. No firsthand evidence was provided by the plaintiff on this motion.

[5] The statement of claim was issued on September 16, 2014. The defendants, Vathanagopan Kandasamy and 6757596 Canada Ltd. (“the defendants”), served a Jury Notice on January 29, 2015 and a statement of defence thereafter on February 4, 2015. The action was discontinued against the defendant 1475032 Ontario Inc. on March 20, 2017.

[6] The plaintiff filed a Trial Record on May 4, 2017. A mediation occurred on May 28, 2020. The matter was scheduled for trial on the June 2020 trial sittings, but the date was suspended due to the Covid-19 global pandemic. A pre-trial conference took place on June 18, 2020 and again on September 22, 2020.

Judicial Notice

[7] The parties agree that I may take judicial notice of facts, information and statistics contained in the notices to the profession and the public by Chief Justice Geoffrey Morawetz (“Chief Justice”) of the Superior Court of Justice, information on the government websites (at all levels), and information obtained from enquiries made by me of the Team Leaders, Regional Senior Justice in this regions, and information obtained from discussions with the civil Trial Coordinators regarding the Civil Trial List.

[8] Judicial notice may therefore be taken of the following facts:

i. There is an ongoing global pandemic. There has been an increase in the number of variants and an increase in rapid transmissions.

ii. On April 7, 2021, Premiere Doug Ford declared, for the third time, a state of emergency and imposed a stay at home order in the province of Ontario.

iii. On April 21, 2021, the Chief Justice released another update to the series of notices previously released during the pandemic to address court proceedings. In this most recent “Notice to Profession and Public regarding Court Proceedings…”, the Chief Justice stated:

“In view of the strengthened stay-at-home order and the critical situation with the pandemic, over the next several weeks until May 7, to reduce the number of court staff, counsel or parties required to leave their homes to participate in court proceedings, the Court will defer as many matters as possible. This includes virtual hearings. “

iv. In the Toronto Region, civil motions and civil trials (except for a few which were deferred) have still proceeded after the Chief Justice’s most recent notice.

[9] Since the pandemic, civil jury trials in the Toronto Region have been suspended several times, with the last suspension triggered by the Chief Justice’s notice on October 9, 2020, updated on January 13, 2021, and again on March 17, 2021 (“the March Notice”). The Chief Justice announced in his March Notice that subject to further direction from the Regional Senior Justice and public health information, the court anticipated resuming jury selection and jury trials on July 5, 2021 at the earliest, in the Toronto, Northwest, Northeast and Southwest regions.

[10] By virtue of the March 2021 Notice, the June 2021 civil jury sittings in the Toronto Region is suspended until July 5, 2021, at the earliest.

[11] The Toronto Region has judges dedicated to sit on Civil, Criminal and Family matters.

[12] Courtrooms in the Toronto Region have been retrofitted to comply with the standards set by the Ministry of Health.

[13] Off-site Covid-19 compliant venues have been secured, utilized previously, and are available, for jury selection in Toronto.

[14] Discussions with the Team Leader for Civil Trials regarding the anticipated resumption of civil jury trials and the state of the list for civil jury trials disclose that suspended civil trials will be placed on the next sittings and, it is anticipated that when the Chief Justice issues an order indicating that jury selection and jury trials may resume in Toronto, these trials will recommence. In Toronto, trials may be held year around.

[15] Enquiries made of the Trial Co-Ordinators did not reveal any information about a backlog of civil trials.

[16] The province is in phase two of its three-phased vaccination plan. Since the motion was heard, the government of Ontario has announced under its “Ontario’s COVID-19 vaccination plan” that anyone over the age of 18 will be eligible to receive a vaccine by the week of May 24, 2021. Under this phase, the government anticipates distributing vaccines until the end of June 2021 through a “mass vaccination clinics, pharmacies, primary care, site-specific clinics, mobile teams, pop-up clinics, workplace clinics, public health units”.

[17] The government of Canada has announced that it expects that most Canadians will be vaccinated by September 2021. As of April 29, 2021, the Government of Canada website revealed that a total of 14,779,842 vaccines have already been distributed in Canada and shows a ramped up allocation of Pfizer-BioNTech Covid-19 to the province of Ontario between May and July 4, 2021.

Evidence on the Motion

[18] Given the importance of the issue between the parties, the court must comment on the quality of the evidence on this motion.

[19] The sole affidavit in support of the plaintiff’s motion was that of Joseph Kositsky (“Mr. Kositsky”), a lawyer at the plaintiff lawyer’s firm. Mr. Kositsky’s affidavit is sworn as to information, for the most part, setting out the history of the proceedings. Other portions of the affidavit, though not challenged by the defendants on this motion, contains statements on contentious matters, without identifying the source of the information nor the fact of his belief. More problematic are the statements, not moored to any source, (and otherwise inadmissible as hearsay) about the plaintiff’s injuries, diagnoses, employment and attempts to mitigate in contravention of subrules 4.06 (2) and 39.01(4) of the Rules. Reference is made to communication with a trial coordinator without disclosing who had the communication, when it occurred, and with whom. Arguments, more appropriate for a factum, are also contained in the affidavit.

[20] The defendants rely on the affidavit of Nancy Boucher (“Ms. Boucher”), a law clerk, with the defendant’s law firm. Ms. Boucher’s knowledge apparently is based on the fact that she is a law clerk with the firm, and, has knowledge of the matters to which she deposes, except where stated to be based upon information provided by others. She goes on to state that she has personally reviewed all the documents referred to in the affidavit, and thereafter proceeds provide information (double hearsay at times) without disclosing the source of the information regarding the accident, significant events, what unfouled at various proceedings (which she was not present at), the defendants’ litigation strategy, the basis of prejudice to the defendants, and more, and at the same time failing to specify the fact of her belief in the information. True, there are instances where Ms. Boucher states that she was “advised”, but in most of those instances, she does not reveal who is advising her. And, on the even fewer occasions where she identifies the source of her information, her source was Ms. Stea, the lawyer who argued the motion.

[21] It is trite law to state that the evidence on a motion should be admissible. While the Rules have carved out a process for receiving hearsay evidence, the Rules deal specifically on facts that are contentious, and the jurisprudence is well established on the issue.

[22] Rule 4.06 (2), which provides:

(2)An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except that an affidavit may contain statements of the deponent's information and belief with respect to facts that are not contentious, provided that the source(s) of the information and the fact of belief are specified in the affidavit, or except where these rules provide otherwise (emphasis added).

[23] Pursuant to subrule 39.01(4), an affidavit on a motion based on information and belief must set out the source of the information and the fact of the belief.

[24] Statements in an affidavit based on information and belief ought to be restricted to matters which are not contentious: R. v. Chan, [2007] O.J. No. 4734; CPC International Inc. v. Seaforth Creamery Inc. [1996] O.J. No. 1353, 49 C.P.C. (3d) 363, at para. 28:

[25] The best evidence may be appropriate if facts are contentious. As stated by Cumming J. in CPC International Inc. v. Seaforth Creamery Inc. [1996] O.J. No. 1353, 49 C.P.C. (3d) 363, at para. 28:

“Motions generally require an underlying evidentiary basis. That is, there needs to be a source of information. It is normal practice for motions to be heard on the basis of affidavits and the cross-examinations of parties on such affidavit evidence. Under rule 39.01, evidence on a motion may be given by affidavit (and may be given on "information and belief") or by examination for discovery or orally. If there is contentious evidence the court may invoke the best evidence role to require more evidence.”

[26] In R. v. Church of Scientology, [1984] O.J. No. 465 (Ont. H.C.), at para. 6, Osler J. stated:

“…it is proper that the affiant disclose on the face of the document what is personal knowledge and what is information and belief, and the grounds for such belief should be stated….because it is in accordance with the whole purpose of the law of evidence, namely, to furnish some assurance that the evidence is worthy of belief, and to indicate the circumstances that make it possible to determine the degree of credibility that attaches to it.”

[27] The admonishment against lawyers and law clerks swearing affidavits on motions where the evidence is contentious is dealt with by Myers J. in Ferreira v. Cardenas (2014), 2014 ONSC 7119, 2014, After referring to the guideline articulated by Master MacLeod, as he then was, in Mapletoft v. Service (2008), 2008 CarswellOnt 897 regarding he use of affidavits sworn by counsel and their staff, he stated:

“It is rarer for law firm clerical staff to be helpful witnesses. In some cases, a clerk or assistant may conveniently adduce evidence simply exhibiting correspondence between lawyers that is non-contentious. By contrast, evidence from a lawyer adduced by way of information and belief through a staff member simply limits the weight of the evidence and should be discouraged: Heck v. Royal Bank, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Ont. Div. Ct.). Moreover, this is not an appropriate vehicle if the lawyer who provides the information wishes to be counsel at the hearing: Manraj v. Bour, 1995 CarswellOnt 1335 (Ont. Gen. Div.).

[28] In the result, I find the “evidence” relied upon by both parties on this motion problematic. Both parties are on similar footings in terms of the weight to be given to the evidence on this motion, but the court specifically rejects, in its totality, the information in paragraph 10 of Mr. Kositsky’s affidavit.

Position of the Parties

[29] Notwithstanding the deficiencies in the affidavits of both parties, the positions of the parties are summarized below:

i. The Plaintiff

[30] Counsel for the plaintiff submitted that it is not known when civil jury trials will resume, and the likelihood of this matter being reached in 2021 or even 2022 is not known. The plaintiff maintained that criminal and family matters continue to receive priority scheduling over civil matters in the Ontario Superior Court. The plaintiff argued that if there was a further adjournment of the trial, there is “a real risk” that key witnesses will no longer be able to provide evidence, additional costs will be incurred, and expert reports will have to be updated. The plaintiff stated that a judge alone trial will shorten the trial from two, or more, weeks to one week thereby permitting the trial to proceed in 2021 or 2022.

[31] The plaintiff submitted that a further delay of the trial “for an indefinite duration, is unconscionable”, and submitted that the interests of justice overwhelmingly favour the striking of the jury. A further delay, it is submitted, would result in “untold financial hardship” to the plaintiff and would unduly benefit the defendants. It is argued, on behalf of the plaintiff, that by virtue of s. 267.5(l) of the Insurance Act, RSO 1990, c. 1.8 (“the Insurance Act”), the plaintiff is only entitled to recover 70% of his gross income loss before trial as 30% of his income loss is not recoverable.

ii. The Defendant

[32] The defendants submitted that there were no witnesses to the accident and the trial will largely be driven by the experts and surveillance footage. They argued that credibility is central to the defence which requires an assessment based on societal common sense which may only be achieved with a jury. They maintained that this matter was not ready for trial in 2020; full disclosure of documents was only completed in 2020; in June of 2020, the pre-trial judge directed that the parties jointly agree on an expert to assess the plaintiff’s post-traumatic stress disorder. The parties could not agree on an expert but counsel for the plaintiff had the plaintiff assessed by a psychiatrist in July 2020.

[33] The plaintiff is young and claims of continued disability are undermined by surveillance. He has provided no evidence of prejudice.

[34] The defendants argue that the motion to strike the jury is premature and urged the court to adopt a "wait-and-see" approach.

THE LAW

[35] The right to a civil jury trial is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons or just cause: King v. Colonial Homes Ltd. 1956 CanLII 13 (SCC), [1956] S.C.R. 528, 4 D.L.R. (2d) 561 at para 17; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 at 625; Kempf v. Nguyen, 124 O.R. 93d) 241 (ONCA) at para. 43; Belton v. Spencer, 2020 ONCA 623, at para. 26.

[36] The right to a jury trial is not to be taken away lightly: Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (Ont. C.A.), at para. 73.

[37] A party’s substantive right to a civil jury trial though is a qualified one, and is subject to the power of the court to order that the action proceed without a jury: Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32; Belton, supra.

[38] A right to a jury trial is not absolute and must sometimes yield to practicality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171.

[39] The overriding test is whether the moving party has shown that justice to the parties will better be served by the discharge of the jury. Will justice to the parties be better served by dismissing or retaining the jury? This discretion may be exercised for or against discharging the jury. When answering the overriding question, context matters: Girao v. Cunningham supra at para. 162-163.

[40] A judge considering a motion to strike out a jury notice has a rather broad discretion to determine “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38; Belton, supra.

[41] The onus is upon the party moving to discharge a jury and that onus is substantial: Hunt, supra.

[42] In Louis v. Poitras, 2021 ONCA 49, at para. 3, Hourigan J.A. stated: “There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions.” The Court of Appeal expressly 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.

DISCUSSION

[43] The court may infer from the available evidence that the plaintiff has sustained physical and psychological injuries, but the lack of evidence directly from the plaintiff makes it difficult for the court to make any determination beyond that. There is no evidence from the plaintiff in relation to any impairment or his claim for income loss. The reduction of the plaintiff’s past income loss award claim, before judgment, may be a live issue but is not, in and of itself, a sufficient reason to strike out the jury notice: Clarke v Tennant, 2021 ONSC 2818, at para. 26. There are cases of course which take this factor into consideration. It is difficult, in this case, to take it into consideration absent evidence on this point.

[44] The plaintiff has baldly claimed he will suffer prejudice, without any evidence. There are no specifics regarding the dates of the plaintiff’s expert reports, which ones, if any, would require updating, the anticipated expenses, or whether there would be any difficulty in updating any of the expert reports.

[45] Contrary to the plaintiff’s contention, it is known when civil jury trials is to resume in the Toronto Region as there is a fixed date (July 5). That date, of course, may be defendant on external factor, which are changing daily (the rate of infections versus the rate of inoculation). However, any determination can only be made on the facts and evidence as they exist or are known at this time. The province is still operating under a state of emergency. To support the stay at home order, the Chief Justice has directed that courts defer as many matters as possible – a twilight period now exists until the anticipated resumption date in the Toronto Region.

[46] On the other hand, the court does not accept the defendant’s suggestion that because the plaintiff is young and has collateral benefits, of which there was no evidence, there is no real past loss of income claim.

[47] The matter may not have been ready to proceed to trial, in any event, in June 2020. Further, the plaintiff has not put forward any actual evidence that any of his proposed witnesses would not be available for trial if the matter were put over to the next sitting.

[48] The court cannot accept the plaintiff’s argument that a judge alone trial with seventeen witnesses from the plaintiff (including an accountant and nine medical professionals and experts) and four witnesses on behalf of the defendants, would take one week as opposed to two or more, without any indication of the issues in the case to be determined and an estimate of the time for each of the witnesses, openings, closings, and any motions.

[49] On the other hand, the defendants’ argument with respect to credibility, anchored to the defendants’ litigation strategy, ought to be rejected. A judge is just as capable as a jury in assessing the credibility of witnesses. The defendants’ litigation strategy does not trump the balancing exercise required by a motion judge in determining whether the interest of justice requires that the action proceed to trial with a judge alone. The basis for the analysis starts with Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (Hyrniak).

[50] In MacLeod v Canadian Road Management Company, 2018 ONSC 2186 () (MacLeod), Myers J., on a motion before him to strike a jury notice, reiterated the principles articulated by Karakatsanis J. in Hyrniak that civil justice must be proportionate, timely and affordable, and referred to what he called the “fundamental words” of Associate Chief Justice O’Connor in Cowles v. Balac: “The object of a civil trial is to provide justice to the parties, nothing more.” Myers J. concluded that “the mode of trial is a facet of the overarching goal of doing justice": MacLeod, at para. 29.

[51] The plaintiff has asserted that he will incur costs of preparing again for trial. There is no evidence of what preparation, if any, was completed before the suspension of the courts in March 2020. The province wide state of emergency and suspension of court proceedings (for all but urgent matters as defined) in March of 2020 affected both jury and non-jury trials.

[52] Given the deficiencies in the defendants’ evidence as well, the question is whether the plaintiff has discharged the onus of demonstrating that the interests of justice in this case would be best served by dispensing with the jury. There is an anticipated resumption date for jury selection and jury trials in Toronto after July 2021. Indeed, the plaintiff stated in his factum: “Were this Court to strike the jury, the trial of this action will be able to proceed in late 2021 or 2022.” In fact, it is anticipated that the trial in this matter will proceed once the suspension is lifted.

[53] This is not a case where there has been “undue process and protracted trials, with unnecessary expense and delay (which), can prevent the fair and just resolution of disputes” (see Hyrniak at para 24). The motion is brought merely months before civil jury trials are to resume in the Toronto Region. This is not a case of an indefinite delay of a trial for an unknown period. While not a hard and fast rule, the court agrees that the wait and see approach would be appropriate in this case.

[54] On the evidence, the plaintiff has not discharged his onus, which is substantial, in satisfying the court that the interests of justice warrants striking the jury notice and trying the case with a judge alone.

DISPOSITION

[55] Based on the foregoing, the plaintiff’s motion to strike the defendants’ jury notice is dismissed without prejudice to the plaintiff renewing his motion in the future.

COSTS

[56] If the parties are not able to agree on costs, the plaintiff may submit written submissions to my assistant limited to three pages, excluding the Bill of Costs, within thirty days of the date of the release of these Reasons. The defendants shall deliver their costs submissions fifteen days thereafter, with the same restrictions.

A. Ramsay J.

Released: May 3, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THINESH PREMANATHAN

Plaintiff

– and –

VATHANAGOPAN KANDASAMY, 6757596 CANADA LTD. and/or 1475032 ONTARIO INC.

Defendants

REASONS FOR JUDGMENT

A. Ramsay J.

Released: May 3, 2021