COURT FILE NO.: CV-15-563-00
DATE: 2021-05-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Charlene Doran, Allan Doran, Alexander Grattan also known as Alex Grattan and Brandon Doran, a minor, by his Litigation Guardian Charlene Doran
Mr. J. Moorley, for the Plaintiffs (Moving Party)
Plaintiffs (Moving Party)
- and -
Courtney Huls
Mr. J. Elamathail, for the Defendant (Responding Party)
Defendant (Responding Party)
HEARD: April 29, 2021 via Zoom at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Judgment on Motion to Strike Jury Notice
[1] The plaintiffs seek leave to bring a motion to strike a jury notice served by the defendant. The defendant concedes the global pandemic represents a substantial and unexpected change of circumstances since the filing of the trial record and does not contest the issue of leave.
[2] Leave to bring this motion is granted.
Background
[3] This a personal injury action arising out of a motor vehicle accident that occurred on December 13, 2013.
[4] The following is a timeline of events in this matter
a. December 13, 2013 accident;
b. December 13, 2015 Statements of Claim issued;
c. November 22, 2016 Statement of Defence filed;
d. March 2017 Examinations for Discovery conducted;
e. January 29, 2019 The Plaintiffs file Trial Record;
f. October 18, 2019 First pre-trial conference held. The matter was placed on the civil jury sittings running list commencing January 2021 for a trial estimated to take 10 - 12 days.
g. March 17, 2020 First directive from Chief Justice suspending civil jury trials until September 2020;
h. July 6, 2020 One courtroom opened in Thunder Bay for entire Northwest region;
i. July 8, 2020 The second pre-trial conference was held. The matter was placed on the Assignment Court list, the January 2021 date was maintained.
j. August 20, 2020 Notice to the Profession from Northwest Regional Senior Justice Warkentin. No date indicated for resumption of civil jury trials but commitment made to endeavour to conduct civil trials in person in whole or in part by videoconference;
k. October 4, 2020 Fire in electric vault closes Thunder Bay courthouse;
l. November 26, 2020 First trial management conference held;
m. February 16, 2021 Thunder Bay courthouse reopens to in person attendances;
n. March 12, 2021 Second trial management conference held;
o. April 20, 2021 Chief Justice issues further update to Public and the Profession regarding stay at home order and impact on court operations.
Positions of the Parties
The Plaintiffs
[5] The plaintiffs argue it is currently unknown when civil jury trials will resume in Thunder Bay. The plaintiff is prepared to conduct the matter virtually with a judge alone. The plaintiff relies on the advice from the trial coordinator for the Northwest that no civil jury trials will be scheduled in 2021. Unless the jury notice is struck there is no reasonable prospect the matter will be adjudicated for another nine months at the very least. The plaintiffs argue they will be prejudiced in at least three ways if there is an indefinite delay of the trial.
[6] First, as the deductible and "threshold" for the deductible under the Insurance Act is indexed annually for inflation for non-pecuniary losses and claims under the Family Law Act delay in the adjudication of the matter will result in a decline both in the damages potentially received by the Plaintiffs', and the probability for claims to surpass the "monetary threshold" for the deductible.
[7] Second, the plaintiff Charlene Doran’s claims for past income loss will be subject to the 30 percent reduction under the Insurance Act. Damages for income loss after the trial are recoverable at 100 percent. As the trial is delayed, the unrecoverable amount of income loss increases.
[8] Third, there is a claim for medical treatment. While this trial is delayed the plaintiff Charlene Doran does not have the financial ability to pay for her medical care and treatment.
The Defendant
[9] The defendant submits the potential prejudice caused by the delay does not outweigh the defendant’s right to have the case heard by a jury. The defendant urges a “wait and see approach”. The defendant submits the efforts of both the Province and the Federal government to vaccinate the population gives reason to be optimistic that the pandemic will largely be under control or at least allow for the resumption of most in person court operations by July 2021. The defendant submits the plaintiffs have failed to adduce sufficient evidence to establish prejudice that would overcome a “wait and see” approach to the question of whether the matter should proceed with or without a jury.
[10] The defendant argues that inflation is inevitable and cannot be used to support an argument concerning prejudice arising from the delay in the possible finding concerning the annual indexing of Family Law Act damages. Second the provisions of the Insurance Act concerning income loss cannot be a basis to establish prejudice and relies on the finding of Kimmel J. in Saadi v. Silva, 2020 ONSC 6700, para. 46 that even in the face of established prejudice and inconvenience to the plaintiffs, arguments concerning past versus future income loss cannot be used to deprive the defendants of the loss of a substantive right to trial by jury.
[11] The defendant argues that the previous receipt of accident benefits by Ms. Doran has left her with sufficient sums to pay for what minimal treatment the defence will argue she actually needs for at least another three years.
[12] The right to have an action tried by a jury is a fundamental right which should not be interfered with without just cause or cogent reason. It is not absolute and must sometimes yield to practicality. The right is qualified as it is subject to the power of the court to determine that the action proceed without a jury. (Louis v. Poitras, 2021 ONCA 49 at para. 17)
The onus is on a moving party to prove that the Jury Notice ought to be struck and the court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury. The courts must balance competing interests to determine whether in the interests of justice a jury notice ought to be struck or whether it is more appropriate to take a “wait and see” approach. (Cowles v. Balac, (2006) 2006 CanLii 34916 (ONCA), at para. 37)
[13] I find the plaintiffs have placed before the Court evidence that justice to the parties will be better served by the discharge of the jury in this matter. I am not persuaded that the “wait and see” approach urged by the defendant is either realistic or is in the interests of justice for the parties in this case.
[14] In my view, the most compelling piece of evidence on this motion is the fact that the Regional Senior Justice for the Northwest Region has directed that no civil jury cases will be scheduled for 2021. This is a serious decision that our Regional Senior Justice has not taken lightly. The R.S.J. has had the benefit of assessing the needs of the entire court and has come to that conclusion. I note that is a particular fact that was not present in a number of authorities placed before me by the parties. Most concerned circumstances where jury trials were actually scheduled, albeit a long way in the future. In this case, the delay to a date for a jury trial is about as uncertain as it possibly could be. In my view this is a determinative factor for this case.
[15] The delay in this matter is due to local conditions that mean for this plaintiff a denial of the timely delivery of justice if the matter is left on a civil jury list. The civil jury list for the Northwest for all intents and purposes is being held in abeyance at the present time as the result of the pandemic. In my view this is real prejudice.
[16] Both parties have placed authorities before the court, decided during the pandemic, on the issue of a motion to strike a civil jury. In my view, the time and place of these decisions must be analyzed as context is the most significant aspect of this unprecedented time of the pandemic. I note that the most recent decision of the Ontario Court of Appeal on the topic, Louis v. Poitras, (supra) post-dates the primary authorities offered by the defendant where jury notices were not struck (Saadi v. Silva, 2020 ONSC 1245 October 26, 2020 Toronto, Jiang v. TTC, 2020 ONSC 5727 September 23, 2020 Toronto) This is significant in my view. This is the first time the issue of striking a civil jury has been considered in Thunder Bay since March 2020.
[17] Counsel in submissions pointed out a growing number of Superior Court cases have considered the ruling of the Court of Appeal in Louis v Potitras. I counted 25 in Quick Law the day before this motion was heard. One of the most recent decisions was of Varpio J. in Evans v. Bouchard-Chiarello, [2021] O.J. No. 1881. This was a decision that was rendered on April 12, 2021 from Sault Ste. Marie. The Superior Court in that city is experiencing similar problems with COVID as in Thunder Bay.
[18] Varpio J. did not give any credence to a plaintiff’s argument concerning prejudice regarding the treatment of future v. past loss of income. Nevertheless Varpio J. concluded at paragraph 16 “it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023 whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.”
[19] In this matter, I have reasonable confidence in a number of things. First, I know there will be no civil jury trials in Thunder Bay in 2021. I do not know when civil jury trials will resume in this region. Thunder Bay draws its jury panel from an area about half the size of France. Some potential jurors cannot reach Thunder Bay except by air or by ice road in winter. Others have to drive for three to four hours just to get to the courthouse. While jury duty is always important for all Ontarians, in our region, for some who are called, they must dedicate travel time and make plans which are above and beyond those experienced by jurors in the more compact Southern Ontario judicial regions. Jury duty is always a big deal for people in our region. I am reasonably confident that when the Court is again ready willing and able to assemble a panel of one hundred to one hundred and fifty of the citizens of our region to complete the process of empaneling a jury, it will be a jury that will hear a criminal case.
[20] In my view, the defendant’s submissions do not give adequate consideration to the present circumstances in the court in Thunder Bay. The affiant for the defendant is an associate lawyer who lives in Toronto. I was not persuaded by her optimistic assessment that because maybe we can hope to return to in person hearings in July 2021 this possibility defeats the clear and obvious prejudice being experienced by the plaintiffs over the past thirteen months and stretching in to the future.
[21] I recall in March 2020 the initial assessment of many in our community that the pandemic would “be over” by the summer of 2020. The initial directive of the Chief Justice of our court on March 17, 2020 suggested that jury trials would again be attempted in July 2020. A great deal of effort and monies were expended to try and continue to conduct jury trials in the major centres of our province for matters that had commenced in the late spring and early summer of 2020. I understand some civil and some criminal jury trials were actually completed at some locations in southern Ontario during that time. Those involved can be rightly proud of how resilient and strong they were in being able to carry on as normal in the face of this unprecedented virus.
[22] I see things as different now in the spring of 2021.
[23] On April 19, 2021, Copeland J. released a decision in a criminal matter, R v. Mackinnon, 2021 ONSC 2749. While it involved a Toronto criminal matter, Copeland J. from paragraphs 7 through 22 of the decision provides a comprehensive and useful summary of the events of the past 13 months as they have impacted the Superior Court of Justice. At paragraph 9, she describes the situation in Ontario now as “dire”. I agree with that assessment.
[24] In Louis v. Poitras the Court of Appeal stressed the importance of giving local trial judges the discretion to respond to local conditions to ensure the timely delivery of justice. I am the local administrative judge for civil in Thunder Bay. I have been assigned to conduct the trial of this matter.
[25] In the two trial management conferences I conducted in this matter I have made the local conditions facing us in Thunder Bay very clear to the parties. The fire in October certainly made things more difficult for court operations in Thunder Bay. Our staff magnificently pressed on in alternate locations. Nevertheless, it has compounded the effect of the pandemic.
[26] As of the end of April 2021, the Northwest Region is ready, willing and able to conduct a virtual judge alone civil trial for this matter in the next eight months or so. We cannot say the same for being able to conduct a civil jury matter.
[27] As difficult as that last sentence may sound, a realistic, prudent, careful, considered and evolving approach to a deadly virus has been taken by our region. It takes into account the resources, needs, and just priorities for the administration of justice in the Superior Court. The effect of the pandemic in a judicial region which serves the smallest population of all judicial regions spread across the largest geography of all judicial regions with the smallest group of judges of all the regions should be obvious. We are doing our best with what we have.
[28] Justice delayed is Justice denied. The delay in this matter to me is patently prejudicial if the jury notice is not struck.
[29] As legitimate and workable as the “wait and see” approach may have been in the pre- COVID times, the defendant has provided no good reason why this matter must proceed with a jury other than “it is my right”. In my view, the overarching right available to the plaintiffs and the defendant is one of a timely adjudication of their dispute by a neutral. One such neutral could be a jury panel of six fellow citizens of the parties. Another neutral could be a Superior Court judge. One is available in the foreseeable future and one is not.
[30] In my view the plaintiffs have amply demonstrated prejudice which overbears the defendant’s right to have a jury trial at some undetermined time in the future.
[31] The jury notice in this matter is struck.
[32] The parties will convene a trial management conference with Fitzpatrick J. to be held on or before May 21, 2021 to discuss the logistics of conducting a trial in this matter as soon as possible.
Costs
[33] At the commencement of the motion I asked if counsel had agreed on costs. They had not. I then asked for an estimate of what they felt they should pay to the other side if they were not successful. Both counsel said $5,000.00 on a partial indemnity basis. I agree this is a reasonable sum for the matter at hand. As the motion was allowed the defendant shall pay to the plaintiffs the sum of $5,000.00 inclusive of HST and disbursements forthwith as costs for this motion fixed on a partial indemnity basis.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: May 3, 2021
COURT FILE NO.: CV-15-563-00
DATE: 2021-05-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Charlene Doran, Allan Doran, Alexander Grattan also known as Alex Grattan and Brandon Doran, a minor, by his Litigation Guardian Charlene Doran
Plaintiffs
- and -
Courtney Huls
Defendant
JUDGMENT ON MOTION TO STRIKE JURY NOTICE
Fitzpatrick J.
Released: May 3, 2021
/lvp