COURT FILE NO.: CV-16-551368-0000
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLEN J. BARGMAN
Plaintiff
– and –
TA J. KUO and SHU-WHA LING
Defendants
Jeffrey Wm. Strype, for the Plaintiff
Sarah Reisler, for the Defendants
HEARD: April 8, 2021 by videoconference
A. ramsay j.
OVERVIEW
[1] The plaintiff seeks leave to bring this motion to strike the defendant’s 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 a trial by judge alone, on the basis that COVID-19 has raised serious concerns that the trial of this matter will be delayed by a year or a year and a half, if it proceeds before a jury as opposed to a judge alone.
[2] This action arises out of a motor vehicle accident, which occurred on September 19, 2014. The matter was scheduled for trial on the June 2021 sittings in the Toronto Region.
Leave to Bring Motion
[3] There is currently a body of case which establish that motions to strike the jury notice since the pandemic present a substantial and unexpected change of circumstances justifying leave to be granted pursuant to subrule 48.04(1) Rules of Civil Procedure.
Objection to Evidence Filed on Motion
[4] The plaintiff objected to the inclusion of evidence in the motion materials which is subject to a publication ban. Given the nature of the information, which relates to the sexual assault of a 13-year-old girl, at the very least the defendants should have ensured that minor’s name was redacted. The publication ban is in place to protect the identity of the minor from being revealed not the plaintiff’s name. The document is now a public document as it has been filed. I am satisfied that the non-publication warning on the documents will notify members of the public of the prohibition against disseminating the information.
THE PARTIES POSITION
Plaintiff’s Position
[5] The sole affidavit on the motion on behalf of the plaintiff is that of a law clerk.
[6] The matter is scheduled for the June 1, 2021 trial sittings in the Toronto region. The trial will be postponed until the July 2021 at the earliest. The plaintiff submitted that proceeding with a jury trial will cause significant prejudice to the plaintiff, cause significant, unreasonable delay that is unfair and unjust and fails to meet the objectives of the Rules and justice in general. The plaintiff argue that he will suffer “severe prejudice” if this motion is dismissed, whilst the defendants would not be prejudiced if the motion were granted.
Defendant’s Position
[7] The plaintiff, 52 at the time of the accident, last worked in 2011 or 2012 as a costumed performer for children’s events. He was unemployed and receiving social assistance. He is currently facing criminal charges for sexually assaulting a 13-year-old girl in 2015. There are serious questions of credibility and having a jury decide the issues of liability and damages is an important part of the defendants’ litigation strategy.
BACKGROUND
[8] This matter arises out of a motor vehicle accident, which occurred on September 19, 2014. The plaintiff issued a statement of claim on April 21, 2016, which was amended on September 4, 2018. The defendants delivered a statement of defence and jury notice dated October 14, 2016. Examinations for Discovery were completed in February 2017. Mandatory mediation was completed on November 29, 2017. The plaintiff filed a trial record on January 24, 2018. On January 9, 2019, the parties attended Trial Scheduling Court and the trial was scheduled to proceed on the October 2020 sittings. On October 2, 2020, the parties attended “To be Spoken to Court” to obtain an adjournment of the October 2020 trial, which was unopposed, as a result of the late service of the plaintiff’s expert report. The matter proceeded to a Pre-Trial on March 18, 2021. The trial is scheduled for the June 2021 sittings in Toronto.
[9] The plaintiff’s motion is supported by an affidavit of Judi Denesi, a senior law clerk with the plaintiff’s law firm. Ms. Denesi’s affidavit, for the most part, provides a recitation of information gleaned from various government websites, the Centre for Disease Control, and media articles. She speculates about a growing backlog, stating: “With the limited access to courtrooms and the limited matters that have been heard since March 13, 2020, there necessarily must be a growing backlog of cases.” Further speculation is made about the impact of R. v. Jordan and s. 11(b) and 7 of the Charter, with Ms. Denesi commenting that criminal matters have been given elevated importance and will continue to take precedence over civil personal injury matters. She commented generally on the challenges of running a jury trial during a pandemic.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] The Toronto Region has judges dedicated to sit on Civil, Criminal and Family matters.
[15] Courtrooms in the Toronto Region have been retrofitted to comply with the standards set by the Ministry of Health.
[16] Off-site Covid-19 compliant venues have been secured, utilized previously, and are available, for jury selection in Toronto.
[17] 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”.
[18] 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 an shows a ramped up allocation of Pfizer-BioNTech Covid-19 to the province of Ontario between May and July 4, 2021.
[19] 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.
THE LAW
[20] The test to be applied by the Court on a motion to strike a jury notice is articulated by the Court of Appeal in Cowles v. Balac, 2006 CanLII 34916 (ONCA), at para. 30:
A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.
[21] 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.
[22] The right to a civil trial by jury, however, is not absolute (see: Belton v. Spencer, 2020 ONCA 623, Girao v. Cunningham, 2020 ONCA 260), at para. 171.
[23] While the right to a jury trial in a civil action is fundamental, "it is not absolute and must sometimes yield to the practicality." Girao v. Cunningham, at para. 171.
[24] In Hunt (litigation Guardian of) v. Sutton Group Incentive Realty (2002), 2002 CanLII 45019 (ON CA), 162 O.A.C. 186, Austin J.A. stated that the onus on the moving party is “substantial”, since the right to a civil jury trial is substantive.
[25] In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal provided guidance to judges hearing motions to strike jury notices. In particular, at para. 3, the panel found that there is no “one size fits all” provincial solution as to when jury notices should be struck. The court stated:
[l]ocal conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.
DISCUSSION
[26] The plaintiff has not provided an affidavit, and much of the affidavit of the law clerk is devoted to information about the coronavirus. There is no evidence from the plaintiff as to the nature of his injuries or the issues in the lawsuit. There is no evidence from the plaintiff as to the judicial region where his criminal trial is to take place and the impact if any, that the criminal trial may have on his personal injury civil matter.
[27] There was one previous adjournment of the trial prompted by the plaintiff’s late service of an expert report, but likely would have been affected by the suspension of jury trials in October 2020. The prospect of a civil jury trial resuming in Toronto in July 2021 is, of course, dependent on the pandemic. Toronto has retrofitted courtrooms dedicated to civil trials; there are off-site venues Covid-19 compliant in the Toronto region for jury trials. Civil jury trials have proceeded in Toronto during the pandemic, contrary to the statement in the plaintiff’s factum that “New civil and criminal jury trials have not been heard since March 17, 2020.” In the Toronto Region, there are judges dedicated to hearing matters on the civil team.
[28] The plaintiff has not put forward any evidence to suggest that this is a case where court costs and delay will become too great if civil jury trials were to resume in the Toronto Region in July 2021.
[29] This is not a case where there will be a lengthy delay or even an indefinite adjournment of the trial.
[30] Aside from a bald allegation of prejudice by the law clerk who provides the only affidavit in support of the plaintiff’s motion, there is no evidence of prejudice.
[31] The prejudice articulated by the defendant, which boils down to the potential loss of its litigation strategy where there is “serious” credibility issue would not, in my view, constitute an item of prejudice in the proper case. It is not, either, in this case. The defendants’ litigation strategy must yield to the overarching precepts for the civil justice system embraced by the Supreme Court and as articulated by Karakatsanis J. in Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 Hyrniak that civil justice must be proportionate, timely and affordable.
[32] The onus on the plaintiff is substantial. The plaintiff has not put forward any cogent evidence to show that the interest of justice would be best served in dispensing with the jury.
[33] There will not be a significant delay for a jury trial once the suspension is lifted for the Toronto Region. On the evidence, it cannot be said that justice to the parties will be better served by striking the defendants’ jury notice.
DISPOSITION
[34] The plaintiff’s motion to strike the defendants’ jury notice is dismissed.
COSTS
[35] 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:
ALLEN J. BARGMAN
Plaintiff
– and –
TA J. KUO and SHU-WHA LING
Defendants
REASONS FOR JUDGMENT
A. Ramsay J.
Released: May 3, 2021