COURT FILE NO.: CV-16-564229

DATE: 20210430

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TERRENCE CAVE Plaintiff

AND:

ANAHIT HOVSEPYAN and GARNIK HOVSEPYAN Defendants

BEFORE: Chalmers, J.

COUNSEL: A. Rachlin, for the Plaintiff

B. Chambers, for the Defendants

HEARD: By writing

ENDORSEMENT

OVERVIEW

[1] This action is scheduled to proceed to trial during the May 31, 2021 civil jury sittings in Toronto. The trial is scheduled for 15 days. The Plaintiff brings this motion pursuant to s. 108 of the Courts of Justice Act, R.S.O. 1990 c.C.43, to strike the jury.

[2] On March 17, 2021 a Notice to the Profession and Public Regarding Court Proceedings was issued under the direction of Chief Justice Morawetz of the Ontario Superior Court. The Notice continued the earlier suspension of civil jury trials and announced that the Court anticipates resuming new jury selection and jury trials on July 5, 2021, at the earliest, in the Toronto region. As a result of the most recent Notice, the trial of this action will not be conducted with a jury on its scheduled date. I have been advised by the Trial Co-ordinator that if the jury is struck, counsel can retain the date and proceed to trial, as scheduled by Judge-alone.

[3] For the reasons set out below, I allow the Plaintiff’s motion to strike the jury.

BACKGROUND FACTS

[4] This action arises out of a motor vehicle accident that occurred on November 20, 2015. The Plaintiff, Terrence Cave was driving his car southbound on Yonge Street in the right lane. The Defendant, Anahit Hovsepyan was driving the car owned by Garnik Hovsepyan northbound on Yonge Street. It was her intention to turn left into Drewry Avenue. As she was making her left turn, she struck the Plaintiff’s vehicle. Mr. Cave allegedly sustained personal injuries as a result of the accident.

[5] The action was commenced by Statement of Claim issued on November 16, 2016. The Plaintiff filed a Jury Notice. The Defendants delivered their Statement of Defence and Jury Notice, dated June 5, 2017. The Plaintiffs set the action down for trial on September 20, 2018. A pre-trial conference was scheduled for April 1, 2020. The pre-trial conference was adjourned due to the closure of the courts in response to the COVID-19 pandemic. The pre-trial took place by videoconference on May 28, 2020. The trial was scheduled for the civil jury sittings commencing June 1, 2020. The trial was adjourned due to the pandemic and is now scheduled for the May 31, 2021 civil jury sittings.

[6] Counsel for the Plaintiff filed an affidavit in support of this motion. He states that the Plaintiff has not returned to work since the accident. He is unable to claim income replacement benefits through the Statutory Accident Benefits Schedule (SABS) and as a result he has not received any income since the accident. Counsel also states that if the trial is adjourned, the Plaintiff will be prejudiced by the fact that he will lose the difference between 100% of his gross income and 70% of his pre-trial gross income loss during the period of the adjournment. Finally, he states that the Plaintiff has incurred significant disbursements preparing for trial and the adjournment will result in additional costs to prepare for a new trial date.

[7] The Defendants argue that the prejudice to the Plaintiff ought to be mitigated by the availability of collateral accident benefits through the SABS. The Defendants argue that striking the jury notice will cause prejudice by taking away their substantive right to trial by jury.

ANALYSIS

Is the Plaintiff Entitled to Leave to Bring This Motion?

[8] The Plaintiff set the action down for trial on September 20, 2018. Pursuant to Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, no party may initiate or continue any motion after setting an action down for trial. The Plaintiff must seek leave to bring this motion. The Defendants do not oppose the Plaintiff’s request for leave.

[9] To obtain leave, the moving party must show a substantial or unexpected change of circumstances since filing the trial record. Leave may also be granted if it is just in the circumstances of the particular facts of the case: BNL Entertainment v. Rickets, 2015 ONSC 1737, at para. 12.

[10] I am satisfied that both tests are satisfied. The action was set down for trial before the COVID-19 pandemic. The pandemic has caused major disruptions in virtually all facets of life including the suspension of civil jury trials. This constitutes a substantial and unexpected change in circumstances: Coban v. Declare, 2020 ONSC 5580, at para. 29. It is also in the interests of justice that the motion be heard. I grant leave to the Plaintiff to bring this motion.

Should the Jury Notice Be Struck?

The Legal Framework

[11] The law recognizes that the right to a jury trial is an important substantive and statutory right which should not be interfered with lightly: King v. Colonial Homes, 1956 CarswellOnt 74 (SCC), at para. 17. Although the right to trial by jury is an important right, the Court has broad discretion to strike out a jury notice. As stated by Brown, J.A. in Belton v. Spencer, 2020 ONCA 623, at para. 26:

The substantive right to a civil jury trial upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (CA), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, 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: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “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. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para., 39.

[12] The exercise of the Court’s discretion is specific to the unique factual elements of the case. A party moving to strike a jury has the onus of establishing that there are features in the legal or factual issues to be resolved, or the conduct of the trial which merits the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties would be better served by the discharge of the jury: Cowles, at para. 28, 37, 38.

[13] Justice Sanfilippo in Johnson v. Brielmayer, 2021 ONSC 1245, reviewed the recent cases to strike jury notices by reason of the pandemic. He noted that the cases are fact specific determinations made on an analysis of the following five factors:

i. the resources available, to the court to outfit its courtrooms to allow for the conduct of jury trials with social distancing;

ii. the local impact of the pandemic to assess the likely timing for the resumption of jury trials;

iii. the prejudice to the parties that would be caused by the delay in adjudication;

iv. the age of the case; and

v. the history of adjournments: at para. 32.

Consideration of the Factors

The Resources Available

[14] In support of his position that the jury ought to be struck, the Plaintiff relies on a number of cases from outside the Toronto Region. It is my view that cases which are not in the Toronto Region are of limited assistance. In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal stated that judicial responses to the pandemic and court resources vary across the province and local judges are best positioned to understand the resources available to conduct jury trials in their jurisdiction: at para. 26.

[15] In Toronto, the court has made case management decisions to accommodate civil jury trials during the pandemic. As noted by D. Wilson, J., in Jiang v. TTC, 2020 ONSC 5727:

I am well aware that we are in unprecedented times. The Court must be flexible and adaptable to accommodate the needs of the parties and to ensure that cases proceed in a fair and equitable fashion. In Toronto, we are very fortunate that we have courtrooms that have been retrofitted to accommodate the social distancing that is required to conduct jury trials. We also are able to conduct jury selection at an off-site premise which has been created to allow for social distancing; it has been approved by the appropriate authorities to ensure it is safe for choosing juries. Further, counsel can decide what witnesses can give their evidence virtually and what evidence can be filed electronically and what evidence may be necessary to have heard in the courtroom: at para. 6.

[16] As a result of the measures taken in Toronto, a 10- day jury trial was completed in the fall of 2020, just prior to the order suspending jury trials on October 9, 2020. Two other civil juries were selected but the trials did not proceed as a result of the suspension order: Hazzard v. MacDonald, 2021 ONSC 2283 at para. 16-19.

[17] Toronto has the resources to conduct a jury trial during the pandemic, however no civil jury trials have been available in Toronto from March 17, 2020 to July 5, 2021 (at the earliest) with the exception of the three week period in the fall of 2020. During that window only one civil jury trial was completed. I adopt the comments of Sanfilippo, J. in Johnson v. Brielmayer at para. 21:

This means that the public health requirements in Toronto have restricted civil jury trials in Toronto Region to 3 weeks out of a 58-week period from March 17, 2020 to May 3, 2021. Apart from the civil jury trials conducted in September-October 2020, the civil jury trials that were scheduled for hearing during this time have not been reached. These civil jury trials are vying for scheduling during the Toronto Region’s June 2021 Sittings, and then only if the suspension of civil jury trials is lifted after May 3, 2021.

[18] The suspension of civil jury trials was not lifted and was instead extended to at least July 5, 2021. Although Toronto may have the facilities to resume jury trials once the suspension is lifted, it is uncertain at this time, as to when the jury trials will be permitted to resume.

The Local Impact of the Pandemic

[19] Although the Toronto Region has taken steps to conduct jury trials during the pandemic, the ability to do so is dependent on the impact of the pandemic in Toronto. I take judicial notice of the fact that Toronto has experienced a higher number of cases than other parts of Ontario. I adopt the comments made by Dow, J. in Clarke v. Tennant, 2021 ONSC 2818, at para. 20:

Regarding the local impact of the pandemic and the likely timing of resumption of jury trials, this is complicated by the rising level of cases, the imposition of increased and greater restrictions in an attempt to reduce the number of cases and the ongoing administering of vaccines to individuals in the Toronto region. The current trend rising case numbers and limited supply of vaccine suggests this favours striking out the jury notice.

Prejudice to the Parties

[20] The Plaintiff argues that if the jury is not struck and the case adjourned, he will suffer prejudice by nature of additional delay. Prejudice may arise simply by reason of the delay: Louis v Poitras, at para. 22. In addition, the Plaintiff argues that he has received no income since the accident. If he is awarded damages for loss of income at trial, he will experience a loss caused by the operation of subsection 267.5 of the Insurance Act, R.S.O. 1990, c.I.8, which limits the Plaintiff’s pre-trial income loss to 70% of gross income while post-trial loss of income is recoverable at 100%. The Plaintiff also argues that he will incur additional costs in trial preparation if the matter is adjourned to a new trial date. I am satisfied that the Plaintiff has established that he will suffer prejudice if the jury is not struck and the trial is adjourned.

[21] The Defendants argue that the Plaintiff’s claims for damages are not admitted. Any losses caused by an adjournment ought to be mitigated by the availability of collateral accident benefits through the SABS, and pre-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c.C.43. The Defendants argue that they will lose their important substantive right to a jury. The Defendants did not tender any evidence of prejudice. The Defendant does not set out any “practical, functional or purposeful disadvantage” if the jury is struck: Johnson v. Brielmayer, at para. 52.

[22] The Defendant relies on the decision of Baker v. Blue Cross Life Insurance Company of Canada, 2021 ONSC 1485. In Baker, the Defendant made an advance payment of benefits to the Plaintiff to ameliorate any potential prejudice from the delay. In addition, the Defendant tendered an affidavit from the senior analyst involved in the carriage of the matter. His evidence was that as a result of the medical evidence and extensive surveillance, the Defendant’s litigation strategy was to proceed with a jury. Dow, J. concluded that the evidence put forward by the Defendant was a factor in favour of the dismissal of the Plaintiff’s motion. Similarly, in Saadi v. Silva, 2020 ONSC 6700, the Defendant filed affidavit evidence to support the claim that the Defendant’s approach to the trial and settlement of the case was different because it was to proceed by a jury. The Plaintiff did not cross-examine the affiant with respect to this evidence. Justice Kimmel concluded that there was some evidence to support the Defendant’s position that it had adopted a particular litigation strategy that was reliant on the election of trial by jury.

[23] Here, the Defendant did not make an advance payment to the Plaintiff and did not put forward any evidence of a litigation strategy based on the election of a trial by jury. The absence of any evidence of prejudice to the Defendants is a factor in favour of granting the Plaintiff’s motion.

Age of the Case

[24] This action arises out of a motor vehicle accident that occurred on November 20, 2015. The Plaintiff moved the matter forward fairly quickly and set the action down for trial less than three years later on September 20, 2018. At that point, the Plaintiff was ready to proceed to trial. The Defendants do not take the position that there had been any delay on the part of the Plaintiff in moving this matter forward.

[25] While five and a half years is not an overly long period to bring a personal injury action to trial in Toronto, this does not mean that such a delay is acceptable. As noted by the Court of Appeal in Louis v Poitras:

This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. 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: at para. 23.

[26] This matter was first scheduled to proceed to trial at the June 2020 civil jury sittings. The trial was adjourned as a result of the court shutdown in response to the pandemic. The fact the case has been adjourned once before, distinguishes it from Baker v. Blue Cross and is a factor that favours granting the Plaintiff’s motion.

[27] If the jury is not struck and the case is adjourned again, there is uncertainty as to when it may ultimately be tried. Three civil jury sittings in the Toronto Region have been cancelled as a result of the pandemic. Other jury trials with fixed dates have also been suspended.

[28] I have been advised by the Trial Co-ordinator that if the jury is struck, counsel may retain the date and proceed to a judge-alone trial on May 31, 2021. The trial will be conducted virtually. The Plaintiff is prepared to proceed with a virtual trial. The Defendants did not provide any evidence or advance any argument as to why this matter may not be appropriate for a virtual trial.

Conclusions

[29] The Plaintiff has established that justice to the parties will be better served by the discharge of the jury. I do not reach this conclusion lightly. Jury trials are an integral part of the civil justice system. The right to trial by jury is an important substantive right which is not to be interfered with “without just cause or cogent reasons”: Cowles v., Balac, at para. 36.

[30] Here, I find there are cogent reasons for striking the jury. The COVID-19 pandemic has caused significant disruption in our society. In Toronto only one civil jury trial has been completed over the last 15 months. Although Toronto Region introduced measures to conduct civil jury trials during the pandemic, the local impact of the pandemic in Toronto has prevented civil jury trials (but one) from taking place. The most recent Notice suspends civil jury trials in Toronto to at least July 5, 2021. There is no way to predict whether jury trials will be available at that time.

[31] The Plaintiff has established that he will suffer prejudice if the jury notice is not struck and the matter is adjourned. The Defendants did not put forward evidence to show they will suffer any specific prejudice if the jury is struck. The action was set down for trial on September 20, 2018. The parties are ready to proceed to trial. The court can provide a virtual trial to the parties commencing May 31, 2021. This will allow the parties to have access to justice now as opposed to facing an uncertain period of an adjournment.

[32] I am satisfied that at this stage in the pandemic, and in the unique circumstances of this case, the jury must be struck.

DISPOSITION

[33] On the basis of the reasons set out above, I make the following order:

i. The Plaintiff is granted leave to bring this motion to strike the jury;

ii. The Plaintiff’s motion to strike the jury is allowed; and

iii. Counsel are directed to contact the Trial Co-ordinator to make arrangements for the matter to proceed to a judge-alone trial on May 31, 2021.

[34] The costs of this motion are reserved to the trial judge.

DATE: April 30, 2021