COURT FILE NO. CV-13-489498
DATE: 20210504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALEXANDER JASKOT and JULIANA HADDAD-JASKOT
Plaintiffs
– and –
MARVIN G. LAWRENCE
Defendant
Jeffrey Strype, lawyer for the Plaintiff
Grant E. Black, lawyer for the Defendant
HEARD: APRIL 29, 2021
REASONS FOR DECISION
G. DOW, J.
[1] This is a motion by the plaintiff, Juliana Haddad-Jaskot to strike the jury notice. I was assigned to conduct a pre-trial conference in this matter on April 29, 2021 and received and reviewed the pre-trial conference memoranda from the parties. I was then assigned to hear this motion and the pre-trial conference was rescheduled. The parties agreed I could consider material in their pre-trial conference memoranda.
Background
[2] This action arises from a rear end motor vehicle collision on August 28, 2012. Liability is not an issue. The plaintiff, Juliana Haddad-Jaskot alleges she suffered severe and permanent soft tissue injuries with psychological sequelae and chronic pain as a result of the collision. She is currently 55 years of age and married. The other plaintiff in the title of proceeding, Alexander Jaskot, is one of her two children. His claim has resolved.
[3] The plaintiff and her spouse are both chiropractors and were working in different clinics at the time of the accident. She alleges a past and future loss of income has occurred. The defendant relies on her pre-accident health problems, post-accident medical assessments, surveillance and her business and financial records to dispute these allegations. The defendant has also agreed to waive the 70% of gross income cap on pre-trial income loss from the date of this motion until trial should this motion be dismissed.
[4] The Statement of Claim was issued September 26, 2013. The Statement of Defence was served on or about December 5, 2013. I was not advised when the action was certified and ready for trial. The action is on the May 31, 2021 trial sittings. This is the first trial date for this action. It is subject to the most recent suspension of jury trials by the Chief Justice on March 17, 2021, that is, civil jury trials will not proceed any earlier than July 5, 2021. Both parties advised they are otherwise ready to proceed. Neither party alleges any delay on the part of the other party in the action being ready for trial.
Analysis
[5] Counsel for the defendant submitted and counsel for the defendant acknowledged that the COVID pandemic and suspension of jury trials amounted to a substantial and unexpected change in circumstances. Alternatively, the defendant conceded that it was just in the circumstances to grant leave as required by the rules to bring this motion before trial.
[6] Plaintiff’s counsel stressed the ongoing seriousness of the pandemic in support of this motion, while noting the recent deaths of individuals as young as 13 years of age and a person who had been vaccinated. Further, recent increased positive test results both in the province and abroad and the rise of variants of concern create an uncertain if not pessimistic future.
[7] Plaintiff’s counsel submitted the Court of Appeal modified the test to strike out the jury notice in Louis v Poitras, 2021 ONCA 49 from the “substantive right and should not be interfered with or without just cause or cogent reasons” (Cowles v Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, at paragraph 36) to a statutory right under Section 108 of the Courts of Justice Act, R.S.O. 1990 c. C.43 that should yield to practicality and how justice to the parties can be best served. With respect, that is not my view of that decision. The Court of Appeal maintained that it “is well settled in the jurisprudence that the substantive right to a 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” (at paragraph 17). The Court of Appeal then stated in the next sentence that the Court “should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons”.
[8] Plaintiff’s counsel agreed the issue becomes weighing a party’s right to select the mode of trial as against the right to timely justice. This is particularly so subsequent to the direction given by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 mandating a cultural shift to ensure timely access to justice. Counsel for the defendant raised its preference to have the jury determine the questions of fact given its belief this matter raises issues of credibility on the part of the plaintiff. In support of this submission, the defendant relied upon the statement by the Court of Appeal in Kempf v. Nguyen, 2015 ONCA 114 that “In addition to the wisdom of their collective life experience, a jury would bring to this action, as juries always do, a reflection of societal values” (at paragraph 60). In making this statement, the Court of Appeal went on to quote from the majority reasons of the Supreme Court of Canada in Whiten v. Pilot Insurance Co. 2002 SCC 18: “One of the strengths of the jury system is that it keeps the law in touch with existing realities, including financial realities” (at paragraph 135). However, both counsel conceded judges are as well- equipped as juries to determine issues of credibility.
[9] Counsel for the plaintiff raised and relied on the factors identified in a recent decision from the Toronto region with regard to striking a jury notice before trial, (Johnson v. Brielmayer, 2021 ONSC 1245 at paragraph 32).
[10] First, consideration of the resources available to the court to outfit its courtrooms to allow for jury trials in a safe manner was addressed. In this regard, Justice D. Wilson has stated (in her position as co-team lead of civil matters in Toronto) that dedicated courtrooms for civil jury trials had been retrofitted in accordance with Ministry of Heath standards to ensure social distancing occurs (Hazzard v. MacDonald, 2021 ONSC 2283 at paragraph 24). This undermines the submission that, in Toronto, upon resumption of in-person hearings, civil cases will be deferred over more urgent criminal or family matters. Civil jury trials in Toronto are conducted in a separate building from criminal or family matters. I would conclude this is not a sufficient reason to satisfy the onus on the plaintiff to demonstrate a sufficient reason to strike the jury notice.
[11] Second, regarding the local impact of the pandemic and assessing the likely timing for the resumptions of civil jury trials, the plaintiff’s counsel stressed the delay to be imposed on his client is currently indeterminant. This must be weighed against the ability to resume civil jury trials in Toronto as soon as the suspension is lifted. Civil jury trials arising from motor vehicle collisions in Toronto that are 15 days or less are currently placed on a list for a sittings which occur in both the spring and the fall of each year. That is, should this matter not proceed in the sittings to commence May 31, 2021, it would be traversed to the next sittings in the fall of 2021 (or a period of about six months). However, I am mindful that delay may also occur if the case proceeds to trial without a jury. The trial judge may utilize some or all of the six months allotted to render his or her decision (before seeking an extension from the Chief Justice). This compares to a jury verdict which is usually rendered in the hours following the conclusion of the trial.
[12] It must also be noted, as part of considering this and all of the factors, the direction by the Court of Appeal in Louis v. Poitras, supra: “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” (at paragraph 26). As a result, I find this to be a neutral factor in favour of striking the jury notice.
[13] Third, regarding the prejudice to the parties that would be caused by the delay, plaintiff’s counsel submitted that the pandemic and restrictions imposed on personal contact had been particularly acute for the plaintiff, as a chiropractor, given the hands-on nature of her profession. However, as noted earlier, neither party alleges any delay caused by the other when this matter was certified ready for trial. Further, the defendant has undertaken to waive any reduction in the past loss of income awarded from the date of this motion to the date of the trial if this motion is dismissed. I would conclude that this is not a factor in favour of striking out the jury notice.
[14] Fourth, regarding the age of the case, at almost nine years since the accident giving rise to the action occurred, I am aware this is an important factor for my consideration. Delay itself can constitute prejudice. However, as part of my review of the pre-trial conference memoranda, the first medical opinion to indicate that the plaintiff’s injuries surpassed the verbal threshold required of permanent and serious injuries, in order to be awarded non-pecuniary damages arising from a motor vehicle collision, is that of Dr. Pilowsky in an expert psychological report dated August 1, 2019 or less than 24 months ago and six years post-accident. Here, the plaintiff alleges life altering injuries which have taken years to evolve and for expert medical opinion to specify. It is not unusual for a significant amount of time to elapse between when an injury occurs and when it can be fairly assessed as permanent and serious. There is more to a claim for damages in a motor vehicle personal injury action than the date of the accident to consider. I am unwilling to ignore this information. There is also a need to consider when the parties were first ready for trial. This also did not appear to occur until in or shortly before 2019. I conclude this is a neutral factor.
[15] Fifth, regarding the history of adjournments, this is the first date this action has been listed for trial. Counsel acknowledged, while advised by the Court to be (and both are) ready to proceed, the case is on a list for a limited time sittings with no evidence as to where it was situated on the list, the number of judges and courtrooms available and whether it would be reached. While I take judicial notice that all cases on the list may be dealt with, it is possible that it would not be reached and could be transferred to the next sittings scheduled for the fall of 2021. This does not favour striking out of the jury.
Conclusion
[16] The plaintiff has not discharged its onus to show a just cause or compelling reason at this time that the jury notice should be struck out. The plaintiff’s motion is dismissed. The trial of this action is adjourned to the next sittings, the date which may be obtained from the trial coordinator. The dismissal of this motion is, of course, without prejudice to it being renewed as circumstances may warrant and any further order of this court.
Costs
[17] The parties agreed costs in the amount of $2,500.00 inclusive of fees, HST and disbursements to be payable by the unsuccessful party to the successful party. I agree this is a fair and appropriate disposition and the defendant is awarded that amount payable by the plaintiff, Juliana Haddad-Jaskot forthwith.
_____________________________ Mr. Justice G. Dow
Released: May 4, 2021
COURT FILE NO. CV-13-489498
DATE: 20210504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALEXANDER JASKOT and JULIANA HADDAD-JASKOT
Plaintiffs
– and –
MARVIN G. LAWRENCE
Defendant
REASONS FOR DECISION
Mr. Justice G. Dow
Released: May 4, 2021