Krista Lynn Holt v. Susan A.M. Cole

COURT FILE NO.: CV-17-00132245

DATE: 20210504

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Krista Lynn Holt

Plaintiff

– and –

Susan A.M. Cole

Defendant

COUNSEL:

Gerry Antman, for the Plaintiff

William Jesseau, for the Defendant

HEARD: April 15, 2021

REASONS FOR DECISION

MCKELVEY J.:

Introduction

[1] This action arises out of a motor vehicle accident which occurred on December 23, 2016. The defence filed a jury notice in the action. The action is now ready to proceed to trial and the plaintiff has brought a motion to strike the jury notice in the action. The defence agrees that although the action was previously set down for trial, there is no basis to deny leave to the plaintiff to bring this motion.

[2] For the reasons which follow I have concluded that the jury notice should be struck, but on condition that if juries are being empanelled when this matter is called to trial, the defendant’s jury notice shall automatically be reinstated without the need for a further motion. I communicated this decision on the date of hearing for this motion with written Reasons to follow. These are those written Reasons.

Factual Background

[3] The accident which is the subject matter of this action occurred on December 23, 2016. The plaintiff commenced this action in August, 2017. Examinations for discovery were held in January, 2019 and in March, 2019 the action was set down for trial. A private mediation was held in January, 2020, and a pre-trial was held on October 29, 2020. Following the pre-trial it was agreed that this action would be put on the running list for civil jury trials.

[4] On February 10, 2021, Regional Senior Justice Edwards issued a Notice to the Profession for the Central East Region concerning the May, 2021 civil sittings. In that notice, the profession was advised that the Court would proceed with its regular civil sittings commencing on Monday, May 17, 2021 for three weeks. Only non-jury matters will be heard during the sittings. There will be no civil jury trials.

[5] With respect to civil jury trials, the notice states that the Court, “does not anticipate having the capability to conduct a civil jury trial until well into 2022”. It would appear that this is a reference to the spring sittings which will likely be held in May, 2022.

[6] There is an inconsistency in the Notice to the Profession about cases which are eligible to be placed on the trial list for the May, 2021 civil sittings for non-jury cases. The notice states that the following cases will be eligible to be placed on the trial list for the May, 2021 sittings:

• All cases that were not reached in the November 2019 sittings

• All cases that were listed to be heard in either the May or November 2020 sittings

• All cases that have been pre-tried since November 2020 to date and which have been deemed ready for trial by the pre-trial judge

[7] It is apparent that this case does not fit any of the criteria listed to be put on the May 2021 trial sittings list. However, later in the notice, it states as follows,

Once all requests (either consent or opposed) have been reviewed by the triage judge, the court will compile one trial list for the entire Central East Region. The trial list will be completed as follows:

(a) All cases that were not reached in the November 2019 sittings

(b) All cases from May and November 2020 sittings with preference given to those cases that had been previously adjourned

(c) All cases that were pre-tried from March 2020 to April 15, 2021, with priority given to the oldest cases

(d) Judicial discretion to expedite cases where deemed appropriate

[8] It is apparent that this case would fall under category (c) as a case that could be added to the trial list.

[9] The defendant also makes reference to a Notice to the Profession dated March 17, 2021 from Chief Justice Morawetz in which he states,

Subject to further direction from the Regional Senior Justice and public health information, the Court anticipates resuming new jury selection and jury trials:

• On June 7, 2021 at the earliest, in the Central West, Central East, Central South and East regions.

The Parties’ Positions

[10] The plaintiff’s position is that justice will be better served by the discharge of the jury. The plaintiff argues that civil jury trials will remain unavailable for the foreseeable future and that she will be prejudiced based on the delay in waiting for a jury trial during the pandemic and the financial consequences of that delay.

[11] The defence maintains that this motion should be dismissed and the case should remain on the jury list. The defence relies on the established caselaw which provides that the right to a jury is an important substantive right which should not be lightly interfered with. The defence argues that there is no reason to believe that this case could be reached in the May, 2021 sittings in any event and that jury trials may be resuming by June according to the practice direction from the Chief Justice.

Analysis

[12] In my view, there is no inconsistency between the practice direction of the Regional Senior Judge and that of Chief Justice Morawetz. While jury trials are hopefully going to resume as of June 7, 2021 in the Central East Region, the cases being heard will be criminal cases. With respect to the civil jury list, I accept the comments of Regional Senior Justice Edwards to the effect that civil jury trials are not expected to resume until well into 2022. If this case remains on the jury list, therefore, it is expected there will be a lengthy delay before it can be tried. On the other hand, if the jury notice is struck, it seems likely that the case can be tried at a much earlier date. While there can be no guarantee that this case will be listed for the May, 2021 sittings, at a minimum, this case could be placed on a running list to be called on relatively short notice if it is to be tried by judge alone.

[13] There is reason to believe that the plaintiff will suffer some prejudice from a delay in having this action tried. She has not worked since the accident. Although she has received disability benefits from her employer as well as income replacement benefits, it does not appear that she will receive full indemnity for her loss of income claim up to the date of trial. Under the Insurance Act, she will only be entitled to receive 70% of the lost income claim prior to trial, whereas, a future loss of income claim will be assessed at 100%.

[14] In addition, the plaintiff will likely have to update its expert reports if the action is not tried in the relatively near future. The cost of updating expert reports is estimated at approximately $12,500. Finally, the plaintiff’s solicitor has been preparing for a trial that was not to be called before January, 2021. If the case is delayed for a year, there will be costs thrown away based on trial preparation for a trial which does not take place.

[15] In my view, however, the most significant consideration is that the delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice. This was the conclusion of Brown J.A. sitting alone as a motions judge in the case of Louis v. Poitras, 2020 ONCA 815.

[16] When that matter proceeded to the appeal itself, Hourigan J.A., writing on behalf of the Court, explicitly adopted Brown J.A.’s finding that delay in itself could justify striking a jury notice. In his decision, Hourigan J.A. states,

Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.

[17] Justice Hourigan goes on to note that 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. I conclude that it is clear that lengthy delays in scheduling a jury trial may result in significant prejudice to parties in a civil matter.

[18] In the defence Affidavit of Keith Smockum, he states at para. 43,

Although this matter does not meet the eligibility criteria enumerated in the Notice to the Profession, dated February 10, 2021, in the event the plaintiff is successful in having the matter placed in the May 2021 civil sittings trial list it would prejudice the defendant by denying a substantive right to have the action tried by a jury.

[19] Mr. Smockum does not give any details with respect to the prejudice his client will suffer. At para. 25 of the defence Factum, it states,

The source of the prejudice is self-evident from a plain reading of the entirety of the paragraph. The defendant will suffer prejudice because, in the event that the plaintiff is successful in the within motion, the defendant may be denied the substantive right to have the matters in issue tried by a jury despite (1) having delivered a jury notice at the outset of the litigation; (2) conducted a litigation strategy that envisioned a jury as the trier of fact; and (3) this matter does not comply with the criteria listed in the Notice to the Profession dated February 10, 2021.

[20] I accept that striking a jury notice involves taking away a substantive right for a party filing the notice. However, the right to a jury in a civil action is not absolute. In the Ontario Court of Appeal decision in Kempf v. Nguyen, 2015 ONCA 114, the court notes that a party moving to strike the jury notice 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, that merit the discharge of the jury”. The overriding test is stated to be, “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”. As noted above, a significant delay in being able to conduct the trial has been found to be sufficient to justify striking a jury notice.

[21] The defence also suggests that it has conducted its defence using a litigation strategy that envisioned a jury as a trier of fact. While I accept that a different strategy may be used by counsel in a jury action, that in my view should not result in any injustice to the defence. Trial by jury in a civil case is not an absolute right. As noted by Brown J.A. in Belton v. Spencer, 2020 ONCA 623, neither party has an unfettered right to determine the mode of trial. Further, at para. 55 Brown J.A. states,

If a stay is not granted and the trial proceeds next week, the appellant will have her defence adjudicated by a single judge, instead of a judge and jury. Both a single judge and a jury labour under the same duty to do justice impartially and dispassionately, based on the evidence before them. The appellant has not explained, in specific functional terms, what litigation disadvantage she might suffer if her rights are adjudicated by an impartial and independent judge instead of by an impartial and independent jury. Absent evidence of such specific litigation disadvantage and given the qualified nature of the right to a civil jury trial, I do not regard the prospect of proceeding to trial before a judge alone as causing irreparable harm.

[22] With respect to the issue of whether this action complies with the criteria listed in the Notice to the Profession dated February 10, 2021, as noted previously, there is an inconsistency in the notice as to whether this case would qualify to go on the May sittings list. That issue is not before me and can be addressed when the plaintiff’s solicitor moves to add this case to the May trial sittings list.

Conclusion

[23] In weighing the above-noted factors, I have concluded that the defendant’s right to a trial by jury must give way to the plaintiff’s right to access to justice. For the foregoing reasons, there shall be an order to go as follows:

The defendant’s jury notice is provisionally struck. However, if the case is called at a time when juries are being selected, the jury notice shall automatically be restored and the action shall be tried by a jury.

[24] This order is without prejudice to the right of the defendant to move for an adjournment if the case is called within the next month. It is also without prejudice to the right of the defendant to argue that the case not be called on only three days notice.

[25] With respect to costs, I would encourage counsel to agree on the costs of this motion. However, if they are not able to agree, then counsel should contact the trial coordinator to schedule a further appearance before me within 30 days. Concise briefs should be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

Justice M. McKelvey

Released: May 4, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Krista Lynn Holt

Plaintiff

– and –

Susan A.M. Cole

Defendant

REASONS FOR DECISION

Justice M. McKelvey

Released: May 4, 2021