Court File and Parties

COURT FILE NO.: 16-69895 DATE: 2021/05/11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SARA TOMSON and SEAN TOMSON by his litigation guardian SARA TOMSON Plaintiffs

– and –

SEAN JACKSON and CHRISTOPHER WATSON Defendants

Counsel: Frank E. McNally, for the Plaintiffs Alan L. Rachlin, for the Defendant, Sean Jackson

HEARD: April 23, 2021 via Zoom

RULING ON MOTION

Plaintiffs’ Pre-Trial Motion to Strike the Jury Notice

CORTHORN J.

Introduction

[1] As a result of the COVID-19 pandemic, participants in the civil justice system have had to be flexible in fulfilling their respective roles in the system. That flexibility has come in the form of increased reliance on both technology and virtual hearings. A casualty of the pandemic is the inability of parties to proceed to trial before a jury. That loss is experienced to differing degrees in each of the Regions within the Province of Ontario.

[2] The proliferation of motions to strike jury notices, in 2020 and early 2021, led to two main approaches being adopted. In some matters, the jury notice was struck and the parties ordered to trial before a judge alone. In others, the motion judge adopted a “wait and see” approach; the relief granted allows for the possibility that it will, by the time the matter proceeds to trial, be possible to conduct civil jury trials.

[3] In early 2021, the Court of Appeal for Ontario provided guidance as to the factors to be considered when determining a motion to strike a jury notice: Louis v. Poitras, 2021 ONCA 49 (“Louis”). Even with the benefit of those factors and of other portions of the decision in Louis, there remains significant uncertainty as to when civil jury trials will once again be held in each Region.

[4] That persisting uncertainty and the passage of time has led to a third possible approach on motions to strike a jury notice. This third approach emerged primarily post-Louis and might be described as a variation on the wait and see approach. Most recently, this third approach was described as provisional or as the middle ground. The end result is something other than an unequivocal outcome on a motion to strike a jury notice. The relief granted provides a balance between avoiding delay in proceeding to trial and protecting a party’s statutory and substantive right to a trial by jury.

[5] By which of the approaches proposed by the parties on the motion now before the court is justice between them better served?

Background

[6] The plaintiffs’ claims arise from a motor vehicle collision that occurred in October 2014. The collision involved three vehicles – the first driven by Sara Tomson, the second by Christopher Watson, and the third by Sean Jackson. The Tomson and Watson vehicles were stopped, the latter behind the former. The Jackson vehicle struck the rear of the Watson vehicle, propelling it forward and into the rear of the Tomson vehicle.

[7] Mr. Jackson admits liability for the collision between the Watson and Tomson vehicles. The plaintiffs discontinued the action against Mr. Watson. The action is proceeding to trial only with respect to the plaintiffs’ claims against Mr. Jackson.

[8] Sara Tomson was the driver of the Tomson vehicle. She alleges that she suffered physical and psychological injuries as a result of her vehicle being struck from behind by the Watson vehicle. The co-plaintiff is Ms. Tomson’s son, Sean Tomson. Collectively, the damages claimed by the plaintiffs total $5,250,000.

[9] Mr. Jackson describes Ms. Tomson’s alleged injuries as soft tissue injuries, chronic pain, and psychological impairment. He highlights that the cost to repair the collision-related damage to the Tomson vehicle was less than $500. Mr. Jackson’s expectation is that the outcome of the trial will turn in large part, if not entirely, on Ms. Tomson’s credibility and reliability as a witness.

[10] Mr. Jackson’s counsel is said to have approached the defence of this action based on the following factors:

a) His experience in numerous civil trials of chronic pain cases;

b) His assessment, based on the conduct of many civil trials, that judges and juries frequently assess chronic pain cases differently; and

c) A difference in approaches taken with respect to both settlement and trial strategy depending on whether or not a jury notice has been served in the subject action.

[11] A jury notice was delivered on behalf of Mr. Jackson together with his pleading.

[12] Set out below is a brief chronology of this action, from the date of the collision to the return date for this motion:

October 7, 2014 - The collision occurs;

September 12, 2016 - The statement of claim is issued;

February 3, 2017 - The Jackson statement of defence and jury notice are delivered;

May 10, 2017 - The action against Christopher Watson is discontinued;

June 5, 2017 - Ms. Tomson is examined for discovery;

June 3, 2019 - The plaintiffs and Ms. Jackson attend mediation;

July 30, 2019 - The plaintiffs serve their trial record;

December 6, 2019 - The plaintiffs’ motion for leave to amend their pleading is heard and granted. As a result of the amendment, the damages claimed are increased from $1,000,000 to $5,250,000;

January 17, 2020 - Mr. Jackson is examined for discovery;

October 26, 2020 - The pretrial conference scheduled for this date does not proceed because defence counsel is in trial in another matter;

February 17, 2021 - Counsel for the plaintiffs informs defence counsel, in writing, that a motion to strike the jury notice will be brought;

February 22, 2021 - The pretrial conference is conducted;

March 5, 2021 - The statement of claim is formally amended; and

March 24, 2021 - The parties attend Trial Management Court.

[13] As of the return date for this motion, this action was scheduled to proceed to trial on May 10, 2021. There is no evidence before the court as to when that trial date was set; nor is there any evidence of the trial being adjourned from an earlier date to the May 2021 date.

[14] Also, as of the return date for this motion, the practical effects of the COVID-19 pandemic had been addressed in several notices to the profession issued by the Office of the Chief Justice of Ontario and by Regional Senior Justice MacLeod. In summary, the state of affairs as of April and May 2021 is that,

• in the East Region, the suspension of jury trials remains in effect until June 7, 2021, at the earliest[^1];

• all non-jury matters are to proceed virtually unless it is absolutely necessary to hold the proceeding in person[^2]; and

• as a result of the “strengthened stay-at-home order and the critical situation with respect to the pandemic”, until May 7, 2021, the court will, in the East Region, defer as many matters as possible. This step is taken to reduce the number of court staff, counsel, or parties required to leave their homes to participate in court hearings, including virtual court hearings.[^3]

[15] As of the date of this ruling, it remains uncertain how long the deferral of “as many matters as possible” will remain in effect.

The Issues

[16] Given the state of uncertainty arising from the COVID-19 pandemic and the most recent notices from the Chief Justice and R.S.J. MacLeod, the issues on this motion are as follows:

1. Is the jury notice to be struck?

2. Regardless of the answer to Issue No. 1, on what terms is the matter adjourned from May 10, 2021 to a new trial date?

Preliminary Issue

[17] The plaintiffs set this matter down for trial in July 2019. They therefore require leave of the court to bring their motion: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 48.04(1). Mr. Jackson concedes that the circumstances arising from COVID-19 are such that the plaintiffs are entitled to leave to bring this motion. I agree.

[18] The plaintiffs are granted leave to bring their motion to strike the jury notice.

Issue No. 1 – Is the jury notice to be struck?

a) The Positions of the Parties

i) The Plaintiffs

[19] The plaintiffs’ position is that justice to the parties will be better served if the jury notice is struck. They submit that if the trial is adjourned from May 2021, they will experience prejudice by reason of the following:

• The delay in and of itself;

• The financial impact of the delay on Ms. Tomson’s claim for damages for past and future loss of income; and

• The potential for increased emotional or psychological harm to Ms. Tomson by reason of the delay.

[20] The plaintiffs submit that Mr. Jackson has done nothing more than make a broad assertion about settlement and trial strategy. The plaintiffs say that broad assertion is insufficient to counter the prejudice they will suffer if the trial is adjourned and the jury notice is permitted to stand.

ii) The Defendant, Sean Jackson

[21] Mr. Jackson submits that a nuanced approach is required; the context of the case is important.

[22] He asks the court to consider (a) the time taken by the plaintiffs to move the action forward, and (b) that he has done nothing to contribute to any delay in the action. Mr. Jackson submits that his conduct during this litigation has been reasonable and co-operative.

[23] Mr. Jackson describes this litigation as a chronic pain case – a type of case which he submits can have a materially different outcome if tried by a judge alone instead of by a jury. Mr. Jackson’s position is that the outcome in this case will depend on the assessment made by the trier of fact as to Ms. Tomson’s credibility and reliability. He points, for example, to the minimal physical damage to the Tomson vehicle ($500) and contrasts the extent of that damage with the $5,250,000 in damages claimed by the plaintiffs.

[24] Mr. Jackson submits that the evidence upon which the plaintiffs rely on this motion falls short of supporting a finding that justice between the parties will be better served if the jury notice is struck.

[25] Mr. Jackson asks that the trial be adjourned to the fall of 2021 and proposes alternative or additional forms of relief, depending on whether the jury notice is struck. Those forms of relief are considered under Issue No. 2 below.

b) The Law

[26] The substantive test on a motion to strike a jury notice remains that as set out by the Court of Appeal for Ontario in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, 273 D.L.R. (4th) 596. At para. 37, the Court sets out the following test:

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.

[27] A judge hearing a motion to strike a jury notice has a broad discretion: Cowles, at para. 38 and Louis, at para. 17.

[28] Since 2006, when Cowles was decided, the Supreme Court of Canada released its decisions in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In Hryniak, the Supreme Court calls for a culture shift on the part of all participants in the civil justice system – with the goal of that shift being the provision of “timely and affordable access to the civil justice system”: at para. 2. In Jordan, the Supreme Court emphasizes the need to change a “culture of delay and complacency” within the criminal justice system: at para. 29.

[29] The mandate from the Supreme Court of Canada requires that participants in the justice system conduct matters so as to minimize, if not eliminate, delay and to see that matters are resolved cost-effectively and expeditiously. Those mandates are also reflected in the Rules of Civil Procedure. This court must “liberally construe [the Rules] to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: r. 1.04(1). Fulfilling those mandates is easier said than done in the midst of the COVID-19 pandemic.

[30] In Louis, the Court of Appeal provides guidance for fulfilling those mandates as they relate to civil jury trials and motions to strike a jury notice. The Court approved the factors considered by the motions judge (Beaudoin J.), including the following:

• A practical approach is to be taken (para. 23);

• The motions judge must be cognizant of the responsibility of the court, to the parties and to the civil justice system, to move the case forward and provide timely service (para. 23);

• Consideration must be given to the interests of the parties and to the administration of justice (para. 25); and

• The availability of resources in the location where the trial is scheduled to proceed, in light of the COVID-19 pandemic (para. 26).

[31] I return to the circumstances in this action to determine whether the plaintiffs have met their onus on the motion to strike the jury notice.

c) Analysis

i) Prejudice to the Plaintiffs

[32] I turn first to the evidence on which the plaintiffs rely in support of their submission that they will be prejudiced if the jury notice is not struck and the trial is adjourned from May 2021 to another date. The plaintiffs submit that they will experience prejudice in three ways: (i) by reason of delay alone; (ii) because of the impact of delay on Ms. Tomson’s mental health; and (iii) because of the impact of delay on Ms. Tomson’s claim for damages for economic loss.

▪ Delay in and of Itself

[33] At present, no civil jury trials are being scheduled in Ottawa. I consulted with R.S.J. MacLeod and determined that it remains uncertain when civil jury trials will resume in Ottawa. It is possible that there may be no civil jury trials conducted in Ottawa during the 2021 calendar year. The reasons for that situation include the COVID-19 pandemic, the priority to be given to criminal jury trials when jury trials can once again be safely conducted, and potential limitations on the physical resources required to safely conduct jury trials.

[34] Plaintiffs’ counsel informed the court that if the trial does not proceed in May 2021, he does not have another four-week block in which to conduct the trial of this action until late May or early June 2022. Defence counsel informed the court that if the trial is adjourned to a date later in 2021 or a date in 2022, his office will do what is required to ensure that a lawyer is available to take carriage of the defence of the action at trial.

[35] The parties agree that “delay in obtaining a trial date for a civil jury trial can, by itself, constitute prejudice and justify striking a jury notice”: Louis, at para. 22, quoting Brown J.A. in Louis v. Poitras, 2020 ONCA 815, at para. 33.

[36] Mr. Jackson asks the court to consider delay in a nuanced manner. First, Mr. Jackson asks the court to consider the plaintiffs’ litigation conduct. In that regard, he submits that the plaintiffs alone are responsible for the passage of 6.5 years from the date of the collision (October 2017) to the trial date (May 2021). Second, Mr. Jackson submits that his litigation conduct has been entirely reasonable. Mr. Jackson asks the court to conclude that, the conduct of the parties, when considered in its entirety, does not support a finding that the plaintiffs will be prejudiced by reason of delay alone if the trial is adjourned to an uncertain date to be tried before a jury.

[37] I turn first to the plaintiffs’ litigation conduct. Mr. Jackson highlights the following choices made by the plaintiffs prior to and during the litigation:

• To leave it until less than one month prior to the two-year anniversary of the date of the collision before they issued their statement of claim (i.e., in September 2016); and

• To allow more than two years to pass after Ms. Tomson was examined for discovery before setting the action down for trial (i.e., from June 2017 to September 2019).

[38] Mr. Jackson does not suggest that there is any blame to be attributed to or wrongdoing on the part of the plaintiffs in that regard. He asks the court to balance the plaintiffs’ choices against his right to have the action tried by a jury.

[39] Mr. Jackson also acknowledges that the timelines set out in the bullet points above and more generally in this litigation are not out of the ordinary for a case of this kind. He submits, however, that the court must carefully analyze the timelines when balancing the equities to be considered on this motion.

[40] Even if the court were to apply the nuanced approach suggested, I do not find Mr. Jackson’s submissions with respect to the plaintiffs’ litigation conduct to be compelling. By emphasizing the two-year anniversary of the date of the collision as an important marker, Mr. Jackson overlooks the discoverability principle applicable to the limitation period for the commencement of an action. The discoverability principle is set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5.

[41] It is not necessary for the purpose of this motion to review that principle in detail. I wish only to identify that, by virtue of the discoverability principle, it is possible that the limitation period applicable to this action expired on a date beyond the two-year anniversary of the date of the collision. There is no evidence before the court as to when the plaintiffs first “discovered” their claims within the meaning of s. 5 of the Limitations Act.

[42] The court could, for example, draw an inference and find that the plaintiffs commenced their action in September 2016 solely out of an abundance of caution to avoid, with certainty, any limitation period defence that might otherwise be advanced. In any event, it is not necessary to draw such an inference or make such a finding.

[43] Absent the requisite evidence, it is not possible to assess where September 2016 falls in the two-year window that the plaintiffs had to commence this action. Mr. Jackson has not provided the evidence required to permit the court to apply the first element of the nuanced approach he suggests be followed.

[44] Turning to his own litigation conduct, Mr. Jackson contrasts the plaintiffs’ choice to allow time to pass with what he describes as his own reasonable and co-operative conduct. For example, he did not oppose the plaintiffs’ request for their examination for discovery of him to be conducted after the plaintiffs had set the action down for trial. His response to that request is said to be but one example of the extent to which his conduct, throughout the litigation, has contributed to moving the action forward.

[45] Mr. Jackson’s submission in that regard overlooks his choice not to set the action down for trial before the plaintiffs did so in June 2019. By that month, more than two years had passed following the examination for discovery of Ms. Tomson. It was not incumbent upon the plaintiffs alone to set the action down for trial. The Rules of Civil Procedure provide that “any party … who is ready for trial” may, after the close of pleadings, set an action down for trial: r. 48.01.

[46] The fact that Mr. Jackson did not set the action down for trial before the plaintiffs did so could support an inference that as of June 2019 he was not ready for trial. That inference, if drawn (which it is not), would run counter to Mr. Jackson’s request for the court to find that he contributed to moving the action forward.

[47] In summary, the second element of the nuanced approach Mr. Jackson suggests be followed does not sufficiently weigh in the defendant’s favour as to outweigh the prejudice the plaintiffs have made out.

[48] I am satisfied that the plaintiffs will, by reason of delay alone, experience prejudice if this matter does not proceed to trial in May 2021.

▪ The Impact of Delay on Ms. Tomson’s Mental Health

[49] One of the two affidavits filed in support of the motion is from Ms. Tomson. In her affidavit, Ms. Tomson refers to a post-collision diagnosis of psychological impairments including Post-traumatic Stress Disorder, Persistent Depressive Disorder, and Somatic Symptom Disorder. As an exhibit to her affidavit, Ms. Tomson attaches a copy of a Progress Report dated September 2020 (“the Report”) from her treating psychologist Dr. Maureen McConnell. In the balance of her affidavit, Ms. Tomson makes no further mention of either the Report or its contents.

[50] It appears that Ms. Tomson relies on the Report as the basis for her understanding of the psychological impairments she lists in her affidavit. I note, however, that Ms. Tomson does not identify the Report as the source for her information nor does she express a belief in that regard.

[51] In her affidavit, Ms. Tomson addresses the impact on her mental health of the litigation, the impending trial, and the potential for delay of the trial. Her evidence in that regard is set out in paras. 5 and 6 of her affidavit:

5. This ongoing litigation has significantly impacted my mental health. The possibility of delaying my day in court due to a pandemic which is outside of my control is increasing my anxiety and depression.

6. The trial of this matter is scheduled to proceed on May 10, 2021. For some time now, I have [been] ready for this day to come and for this litigation to finally come to an end. The delay of this trial is prejudicial and unfair to my claim. I am scared about the impact on my mental health if this trial is delayed.

[52] Plaintiffs’ counsel asks the court to treat certain passages from the Report as evidence on the motion. For example, he asks the court to consider the following points made at pp. 2 and 3 of the Report:

• Since the collision, Ms. Tomson has had difficulty managing stressors;

• The impact on Ms. Tomson of significant stressors is an exponential decrease in her level of function; and

• At any worsened level of symptomatology, Ms. Tomson is at high risk of self-harm.

[53] Ms. Tomson was not cross-examined on her affidavit. She submits that her evidence with respect to prejudice related to her mental health is uncontroverted. I agree with that submission. I do not, however, agree that there is much, if any, evidence before the court as to the impact that delay of the trial would have on Ms. Tomson’s mental health.

[54] The contents of affidavit evidence used on a motion is prescribed by the Rules of Civil Procedure. Specifically, r. 39.01(4) deals with evidence based on information and belief: “[a]n affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”

[55] Attaching the Report as an exhibit to the Tomson Affidavit does not amount to proof of the contents of the report: Peirson v. Bent (1993), 1993 CanLII 8559 (ON SC), 13 O.R. (3d) 429 (Gen. Div.). The evidence before the court on this motion is therefore limited, at most, to the statements made by Ms. Tomson in her affidavit. The exhibit is proof only of the existence of the Report and Ms. Tomson’s receipt of it.

[56] The statements made by Ms. Tomson are considered in light of the fact that she is a layperson. There is no evidence to support a finding that she has any expertise in the field of psychology.

[57] I find that the statements made at para. 5 of the Tomson Affidavit include opinion evidence on matters about which Ms. Tomson is not qualified to express such opinions. I attach no weight whatsoever to the statements made in that paragraph.

[58] The first and second sentences of para. 6 are facts to which Ms. Tomson is in a position to attest. Based on those facts, I find that Ms. Tomson is ready to proceed to trial in May 2021.

[59] In the third sentence of para. 6, Ms. Tomson says, “[t]he delay of this trial is prejudicial and unfair to my claim.” I find that statement is argument and I disregard it entirely.

[60] In the final sentence of para. 6, Ms. Tomson says, “I am scared about the impact on my mental health if this trial is delayed.” I accept Ms. Tomson’s expression of fear. There is, however, no evidence before the court to permit me to assess what the impact will be on Ms. Tomson’s mental health if the trial is delayed.

[61] In summary, in the absence of better evidence, including possibly expert opinion evidence, Ms. Tomson has established only that she is fearful for her mental health if the trial of the action is delayed. That fear alone does not support a finding of prejudice to Ms. Tomson’s mental health if the trial is delayed.

[62] I am in a position to take judicial notice of the fact that litigation is or, at a minimum, can be, stressful for litigants. I am satisfied that fact is “so notorious or generally accepted as not to be the subject of debate among reasonable persons”: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 864 at para. 48. The evidence before the court does not, however, permit me to distinguish Ms. Tomson from other litigants in that regard.

[63] In summary, I find that the plaintiffs have not established that Ms. Tomson will experience prejudice specific to her mental health if the trial is delayed from May 2021.

▪ The Impact of Delay on Ms. Tomson Financially

[64] The plaintiffs submit that by reason of the passage of time prior to the commencement of trial, Ms. Tomson suffers financial prejudice. That prejudice is said to arise because of the erosion of Ms. Tomson’s claim for damages for economic loss.

[65] Section 267.5(1) of the Insurance Act, R.S.O. 1990, c. I.8, provides defendants in motor vehicle litigation with protection from liability with respect to damages claimed for income loss and loss of earning capacity. In summary, a defendant is potentially liable for 100 per cent of the plaintiff’s gross income with respect to future losses. By contrast, a defendant’s potential liability with respect to the plaintiff’s past income loss is restricted to 70 per cent of gross income.

[66] The evidence before the court is that Ms. Tomson’s pre-collision gross income was $890 per week; 30 per cent of that amount is approximately $265. A delay of this trial by four months equates to a loss to Ms. Tomson of the potential to recover $4,590 ($265 x 4 x 4.33); by eight months to $9,180, and by twelve months to $13,770. The first of these calculations is set out in the responding affidavit of associate counsel, Laleh Hedayati (“the Hedayati Affidavit”) and is not disputed by the plaintiffs. The balance of the arithmetic is mine.

[67] Mr. Jackson describes the potential loss of $4,590 as modest – specifically in the context of a claim for damages totalling $5,250,000.

[68] In a number of decisions on motions to strike a jury, the erosion of a plaintiff’s claim for damages for economic losses has been found to cause a non-compensable and non-recoverable loss that is prejudicial to the plaintiff: see Sauve v. Steele, 2021 ONSC 1557, at para. 28; Louis, at para. 57; MacKenzie v. Pallister, 2021 ONSC 1840, at para. 12; and Johnson v. Brielmayer, 2021 ONSC 1245, at para. 50.

[69] Mr. Jackson concedes, and I so find, that this form of erosion of potential damages for economic losses amounts to financial prejudice to Ms. Tomson. However, he asks the court to consider other aspects of the evidence (or lack of evidence) with respect to Ms. Tomson’s financial situation:

• There is no evidence that Ms. Tomson is struggling financially, including at present, as a result of the collision;

• There is no evidence as to the specific financial significance to Ms. Tomson of the potential erosion of her claim for damages for loss of income; and

• Ms. Tomson is receiving collateral benefits.

[70] In my view, the court’s consideration of the financial impact of delay on Ms. Tomson need go no further than the finding set out in para. 69, above. The prejudice found is in the context of the litigation and the impact of delay on the potential for Ms. Tomson to be fully compensated for her alleged losses arising from the collision. A fact-specific inquiry based on this plaintiff’s financial circumstances is not required.

[71] To the prejudice found on the basis of delay alone, I add the prejudice to Ms. Tomson’s ability to be fully compensated for the economic losses she allegedly suffered as a result of the collision. These forms of prejudice are balanced against Mr. Jackson’s substantive right to have the action tried by a jury.

ii) The Right to a Trial by Jury

[72] “[T]he right to a trial by jury is a substantive right of great importance of which a party should not be deprived except for cogent reasons”: King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, at p. 533. In Louis, the Court of Appeal emphasizes that a court is not to interfere with the right to a jury trial “without just cause or compelling reasons”: at para. 17.

[73] As noted in the Background section of this ruling, Mr. Jackson describes this action as a “chronic pain case” and anticipates that the outcome at trial will depend in large part on the trier’s assessment of Ms. Tomson’s credibility and reliability as a witness. For a number of reasons, Mr. Jackson prefers that assessment be carried out by a jury. Those reasons include the comments made by Leach J. at paras. 45 and 56 of his decision in Ismail v. Fleming, 2018 ONSC 6780:

I frankly am not persuaded that a trial judge has any superior ability over members of a jury to make such fundamental credibility assessments. To the contrary, it has been said that cases turning on credibility are particularly well suited for jury determination; i.e., with six citizens judging the credibility of their compatriots. (Citation omitted.)

… repeated indications by the Supreme Court of Canada and our own Court of Appeal that civil jury trials ensure our system of justice benefits from the “wisdom of … collective experience”, “a healthy measure of common sense” and a “reflection of societal values” that jurors bring to trials, and that “one of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities.

[74] With those comments as a backdrop, Mr. Jackson submits that he will experience prejudice if the jury notice is struck because both the litigation and settlement strategies adopted on his behalf are based on an expectation that the action will be tried by a jury. That prejudice is addressed in paras. 24 and 25 of the Hedayati Affidavit:

24. I am informed by Mr. Rachlin, and verily believe, that he has participated in many civil trials involving chronic pain issues, and that in his experience judges and juries frequently assess chronic pain cases differently. Our office, our client and our principal have all approached the settlement strategy for this case on the assumption that it would be tried by a Jury.

25. As Mr. Jackson’s counsel, we have valued the case and tailored our strategy on the basis that the action would be tried by a Jury. The defendant Sean Jackson has prepared for and is ready for a trial with a Jury.

[75] Mr. Jackson’s position is that no greater detail can be provided than as set out in those paragraphs, because the disclosure of such detail would require a waiver of one or more of solicitor-client and litigation privilege. He also submits that, because Ms. Hedayati was not cross-examined on her affidavit, her evidence with respect to prejudice to the litigation and settlement strategy is uncontradicted.

[76] In Johnson, Sanfilippo J. was critical of a defendant who, in response to a motion to strike the jury, did not lead evidence or explain what general or litigation detriment he would experience if the action against him was tried by a judge alone as opposed to by a jury (i.e., based on that defendant’s jury notice): at paras. 51 and 52.

[77] In Ismail v. Fleming, 2021 ONSC 1425,[^4] Tranquilli J. was critical of the defendant’s general assertion that the delivery of a jury notice had informed their litigation and settlement strategy. He concluded that such a general assertion falls short of the type of “specific litigation disadvantage” that would justify delaying a trial to an uncertain date in the future so that it could proceed before a jury: at para. 26.

[78] I find that Ms. Hedayati’s evidence, uncontroverted as it is, amounts to a broad assertion of prejudice and fails to address the specific litigation disadvantage of the kind required in an effort to tip the balance in favour of maintaining the jury notice. I am not satisfied that the identification of this action as a chronic pain case and/or as one which Mr. Jackson and his counsel anticipate will turn on the assessment of Ms. Tomson’s credibility and reliability as a witness amounts to the requisite specific litigation disadvantage.

d) Summary

[79] I balance the delay that would result if the trial is adjourned to a start date after May 2021; the prejudice to the plaintiffs by reason of delay alone; and the additional prejudice to Ms. Tomson by reason of the erosion of her potential to fully recover the losses she alleges she has suffered, as against Mr. Jackson’s broad assertion of prejudice based on the litigation and settlement strategies adopted on his behalf. The outcome of that balancing exercise is that the scales tip in favour of striking the jury notice.

[80] The motion to strike the jury notice is granted.

Issue No. 2 – Regardless of the answer to Issue No. 1, on what terms is the matter adjourned from May 10, 2021 to a new trial date?

[81] In anticipation of the possibility that the jury notice would be struck, Mr. Jackson asked the court to consider making a provisional order – because of the uncertainties arising from the COVID-19 pandemic. He asks the court to consider one of two options. Both options contemplate an adjournment of the trial to a date after May 2021.

[82] The first option would be to include in the order striking the jury notice, a term entitling Mr. Jackson to bring a motion to reinstate the jury notice if, by the new trial date, it is once again possible for the action to be tried by a jury. The second option proposed is to leave the jury notice in effect and order that the jury notice shall be struck if, when the matter proceeds to trial, it is not possible to proceed before a jury.

[83] The approaches proposed are based on several decisions on motions of this kind in which the outcome was something other than an order unequivocally striking a jury notice. At least one such decision pre-dates the Court of Appeal decision in Louis: Solanki v. Reilly, 2020 ONSC 8031. The majority of the other decisions post-date Louis: Boothroyd v. Muir, 2021 ONSC 1239; Barikara v. Kyei, 2021 ONSC 1636; MacKenzie v. Pallister, 2021 ONSC 1840; Mohan v. Howard, 2021 ONSC 2064; Weaver v. Clunas, 2021 ONSC 2364; and Barnim v. Mitchell, (March 26, 2021), LondonCV-17-2865 (Ont. S.C.).[^5]

[84] The provisional approach followed varies from case to case. The approach adopted depends on several factors including local conditions with respect to when it is anticipated that a new trial date will be identified. In Mohan, Baltman J. describes the approach he adopted as “the middle ground approach”: at para. 16. He concludes that such an approach makes sense because it achieves “the [p]laintiff’s goal of avoiding further delay caused by the Covid-19 pandemic in bringing the matter to trial, whilst also protecting the [d]efendant’s statutory and substantive right to a trial by jury in the event [the court] has resumed conducting trials when [the] action is called to trial”: at para. 16.

[85] When is it anticipated that the parties now before the court will proceed to trial? At the conclusion of argument on the motion, I informed counsel that the trial would, regardless of the outcome of the motion, be adjourned from May 10 to either May 17 or 25, 2021. In ordering that brief adjournment, I considered that the terms set out in the most recent notice from R.S.J. MacLeod were set to expire on Friday, May 7, 2021. As of the date of this ruling, an update to that notice has not been released. Neither the parties nor the court could be certain that this matter will be permitted to proceed virtually before a judge alone on May 10, 2021 (i.e., if the jury notice were struck).

[86] I also took into consideration my schedule in the days immediately following argument on the motion and the time required to consider submissions and determine the motion. Lastly, I also considered the unfairness to the parties to require them to commence preparation for a trial that neither they nor the court could be certain would proceed on May 10, 2021.

[87] The brief adjournment from May 10, 2021 to a date to be addressed in this ruling is captured in the court’s unreported endorsement released on April 27, 2021.

[88] In the days prior to the release of this ruling, I ascertained that one of my colleagues is available to preside over this trial commencing on Tuesday, May 25, 2021. The parties attended Trial Management Court on April 27, 2021 and were advised that the trial was adjourned from May 10 to May 25, 2021 – pending the determination of this motion. On April 30, 2021, counsel were advised in an email from the Trial Co-ordinator’s Office of the order made below and that these written reasons would follow.

[89] The new trial date is therefore certain – at least to the extent possible during the COVID-19 pandemic. The trial is to proceed on May 25, 2021. The question therefore becomes: on what terms is the trial adjourned to May 25, 2021? I agree with the adoption of a provisional or middle ground approach with respect to striking the jury notice.

[90] If the trial does not proceed on May 25, 2021, this action will likely not proceed to trial before a jury until 2022 and possibly not until May or June of 2022. When discussing potential future dates with counsel at the conclusion of argument, defendant’s counsel made it clear that, whatever the length of the adjournment (if granted as per his request), his office would make certain that a lawyer is available to take carriage of the defence of the action at trial.

[91] Plaintiffs’ counsel did not take that approach. Rather, he informed the court that he is not available again until approximately a year from now.

[92] It is open to the plaintiffs to insist that their counsel at trial be the lawyer who has had carriage of their action to date. That is a reasonable and understandable decision on their part. I find, however, that it would not do justice between the parties to allow that decision on the plaintiffs’ part to prejudice the defendant’s substantive right to a trial by jury.

[93] To achieve the goal of avoiding delay in bringing the matter to trial, whilst also protecting Mr. Jackson’s statutory and substantive right to a trial by jury in the event of an adjournment of the trial to a date on which the court in Ottawa is once again conducting civil jury trials, I follow the middle ground approach taken by Baltman J. in Mohan and by Casullo J. in Barikara.

[94] In summary, if, when the action proceeds to trial (whether on May 25, 2021 or a later date), there are no civil jury trials being conducted, then the trial proceeds before a judge alone. If, however, the trial is adjourned from May 25, 2021 and civil jury trials are being conducted when the action is called to trial, it shall proceed before a judge and jury.

[95] This middle ground approach is premised on the expectation that Mr. Jackson and his counsel will act in good faith and co-operate with the plaintiffs and their counsel to secure the earliest possible trial date in the event of an adjournment of the trial from May 25, 2021: Mohan, at para. 17. This approach is not an invitation to Mr. Jackson or his counsel to “devise reasons to postpone the trial” until such time as civil jury trials are once again being conducted in Ottawa: Mohan at para. 17.

Disposition

[96] I order as follows:

1. The plaintiffs are granted leave to bring their motion to strike the jury notice delivered by Sean Jackson (“the Jury Notice”).

2. The trial of this action is adjourned from May 10, 2021 to May 25, 2021.

3. The plaintiffs’ motion to strike the Jury Notice is granted on the following terms:

a) The Jury Notice is conditionally struck and the trial of this action shall proceed virtually on May 25, 2021 before a judge alone;

b) If the trial of this action is adjourned from May 25, 2021 and a judge alone trial cannot be reached before civil jury trials are being conducted, then the Jury Notice is automatically reinstated without the need for a further motion by Sean Jackson; and

c) This order is without prejudice to the plaintiffs’ right to bring a further motion to strike the reinstated Jury Notice if the trial does not proceed before a judge alone, whether on May 25, 2021 or at a later date.

[97] Counsel for the parties shall contact the Trial Co-ordinator to schedule a Trial Management Conference with the trial judge during the weeks of May 10 or 17, 2021. The issues to be addressed at the conference include estimating the duration of the trial given that it is now scheduled to proceed before a judge alone.

[98] As of the date of return of the motion, Mr. Jackson’s counsel had a trial scheduled to proceed in another jurisdiction commencing in June. If Mr. Jackson’s counsel has a scheduling conflict as a result of that matter, it is open to the parties to request that the trial of this action proceed in two separate tranches with the first tranche commencing on May 25, 2021. That said, the manner in which the trial of this action proceeds is within the discretion of the trial judge.

[99] Alternatively, a determination may be required as to which of the two trials in which Mr. Jackson’s counsel is scheduled to participate takes precedence. That determination is beyond the scope of this ruling.

[100] If the parties collectively wish to proceed with a settlement conference prior to May 25, 2021, a request for such a conference shall be made jointly to the Trial Co-ordinator.

Costs

[101] In the decisions to date in which a provisional or middle ground approach was taken on a motion to strike a jury notice, the outcome with respect to costs has ranged from each party bearing their own costs to costs being reserved to the trial judge. Both parties achieved some success on the motion; I find that the latter approach is fair and reasonable. Costs of the motion, if requested, are reserved to the trial judge.

Madam Justice Sylvia Corthorn

Released: May 11, 2021

[^1]: Chief Justice Morawetz’ March 17, 2021 Notice, https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/court-proceedings-notice/. [^2]: Chief Justice Morawetz’ March 17, 2021 Notice, https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/court-proceedings-notice/. [^3]: R.S.J. MacLeod’s Notice April 20, 2021, https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/e-notice/. [^4]: In 2018, Leach J. declared a mistrial in Ismail v. Fleming, 2018 ONSC 6615. The decision of Tranquilli J. is from the second trial of this action. [^5]: There may be other decisions in which a provisional approach was adopted. I listed only those decisions cited by one or both of the parties on this motion.