COURT FILE NO.: CV-14-518067

DATE: 20210507

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ESWARAN SOUNTHARAAJAN, as represented by his Litigation Administrator, MAHILINI SOUNTHARARAJAN, MAHILINI SOUNTHARARAJAN and RAJESWARY SOUNTHARARAJAN

Plaintiffs

AND:

ERICK TROISI, THUY VAN TO and THE CO-OPERATORS GENERAL INSURANCE COMPANY

Defendants

BEFORE: Chalmers, J.

COUNSEL: N. Mester, for the Plaintiffs

C. Farahat, for the Defendants

HEARD: May 4, 2021 by teleconference

ENDORSEMENT

OVERVIEW

[1] This action arises out of a motor vehicle accident that occurred on December 14, 2012. On December 8, 2018, Regional Senior Justice Firestone scheduled the matter to proceed to trial during the jury sittings in October 2020. The trial was adjourned to the June 2021 jury sittings.

[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.

[3] 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.

BACKGROUND FACTS

The Action

[4] On December 14, 2012, the Plaintiff, Eswaran Sountharaajan was driving his vehicle southbound on Kennedy Road towards the intersection at Forbes Road, in Toronto. At the same time, the vehicle operated by Erick Troisi and owned by Thuy Van To, was proceeding northbound on Kennedy Road. Mr. Sountaraajan alleges that Mr. Troisi lost control of his vehicle, crossed into the southbound lanes and struck his vehicle. Mr. Sountharaajan alleges that he sustained personal injury as a result of the accident.

[5] Mr. Sountharaajan commenced the action on December 12, 2014. The action was brought against Erick Troisi and Thuy Van To along with the Co-operators General Insurance Company. The action against Co-operators was discontinued on September 14, 2015. A Statement of Defence and Jury Notice was served on February 22, 2016 on behalf of Mr. Troisi and Mr. Van To. The Plaintiff set the action down for trial on November 7, 2017.

[6] On December 28, 2017, Mr. Sountharaajan committed suicide. On July 19, 2018, an order was granted allowing the action to continue with his mother, Mahilini Sountharajan as the Litigation Administrator. On December 4, 2019, an order was granted to amend the Statement of Claim to add Mahilini and Rajeswary Sountharaajan; Mr. Sountharaajan’s sister, as Plaintiffs. They claim a loss of care, guidance and companionship pursuant to s. 61 of the Family Law Act. The Examinations for Discovery of Mahilini and Rajeswary took place on May 8, 2020.

[7] By endorsement dated December 8, 2019, Regional Senior Justice Firestone scheduled the trial to proceed during the October 2020 civil jury sittings.

[8] The pre-trial conference proceeded before Justice J. Wilson on September 14, 2020. She completed a trial management report pursuant to R. 50.08. She noted that the trial was scheduled for the October 2020 jury sittings. She stated that the matter should proceed to trial with a jury if able to accommodate and if not by whatever mode of trial is possible. She stated that the, “Case is a matter of priority.”

[9] In October 2020, the Plaintiffs requested an adjournment of the trial because one of their experts was out of the country and did not have access to wi-fi. On September 28, 2020, Justice Ramsey adjourned the matter to the June 2021 civil jury sittings.

Jury Trials in the Toronto Region

[10] On March 15, 2020, all Ontario Courts suspended regular operations due to the COVID-19 pandemic.

[11] Following the suspension of regular operations, the Toronto Region put measures in place to allow jury trials to proceed during the pandemic. The largest civil courtrooms were outfitted with Plexiglas barriers and were reconfigured to allow for social distancing between counsel and the jury. Arrangements were made to have jury selection at the Metro Convention Centre.

[12] During a three-week window in September - October 2020 jury trials were permitted in Toronto Region. Three civil juries were selected. One civil jury trial was concluded before jury trials were suspended again on October 9, 2020. No jury trials have been conducted in Toronto Region since October 9, 2020. The Notice to the Profession and Public Regarding Court Proceedings dated March 17, 2021 continues the suspension of civil jury trials in the Toronto Region, until July 5, 2021, at the earliest.

ANALYSIS

Leave to Bring This Motion

[13] The Plaintiff set the action down for trial on November 7, 2017. 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 Plaintiffs must seek leave to bring this motion. The Plaintiffs did not formally seek leave. The Defendant did not raise an objection to the failure of the Plaintiffs to seek leave.

[14] 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. I am satisfied that both tests are satisfied. The action was set down for trial before the COVID-19 pandemic. The pandemic has affected every aspect of our society including the functioning of the Court: Hazzard v. MacDonald, [2021] O.J. No. 1539, at para. 10. The pandemic constitutes a substantial and unexpected change in circumstances. I grant leave to the Plaintiffs to bring this motion.

Should the Jury Notice Be Struck?

The Legal Framework

[15] The law recognizes that the right to a jury trial is an important substantive and statutory right that 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.

[16] 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 of the case which merit 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 paras. 28, 37, 38.

[17] Courts often adopt the “wait and see” approach when considering requests to strike a jury. The “wait and see” approach is not a rule of law. It is a pragmatic approach to decide whether the jury ought to be struck based on the circumstances at the time of the request and not on the basis of anticipated circumstances that may not materialize: Cowles, at para. 70. As noted by Justice Dow, it is only in the “rarest of situations” and in the “clearest of cases” where a party can successfully argue that a Jury Notice should be struck out prior to trial: Ma v. RBC Life Insurance Co., [2016] O.J. No. 5168, at para. 13.

[18] Justice Sanfilippo in Johnson v. Brielmayer, 2021 ONSC 1245, reviewed the “wait and see” body of cases that have considered whether a jury is to be struck as a result of the effect 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 in Toronto Region

[19] In support of their position that the jury ought to be struck, the Plaintiffs rely on several cases from outside the Toronto Region. Cases which are not in the Toronto Region are of limited assistance: Hazzard v. MacDonald, 2021 ONSC 2283 at para. 16-19. 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.

[20] In Toronto Region, steps have been taken 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. 7.

[21] The Defendants argue that most of the motions brought in Toronto Region to strike the jury have been dismissed on the basis of the “wait and see” approach. In Jiang v. TTC, Saadi v. Silva, [2020] O.J. No. 4789, Henry v. Zaiten, [2021] O.J. No. 983, Brooks v. Karim (unreported, January 8, 2021), Baker v. Blue Cross Life Insurance, 2021 ONSC 1485, Hazzard v. MacDonald, and Clarke v. Tennant, 2021 ONSC 2818, the motions judges relied on the fact that the Toronto Region is unique in its ability to conduct jury trials during the pandemic, when dismissing the motion to strike the jury.

[22] In Johnson v. Brielmayer, the jury was struck. Justice Sanfilippo noted that although the Toronto Region has the resources to conduct a jury trial during the pandemic, only one civil jury trial was completed from March 15, 2020 to May 5, 2021. Since that decision was released, the suspension of jury trials was extended to July 5, 2021 (at the earliest). The civil jury sittings in June 2020, November 2020 and now June 2021 have been cancelled. Although the Toronto Region has 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.

The Local Impact of the Pandemic

[23] 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.

[24] Both parties filed newspaper and internet articles on the effect of the pandemic, the vaccine rollout and “herd immunity”. The articles are not evidence. Neither party tendered evidence from an expert who could provide opinion evidence with respect to these issues. However, I take judicial notice of the fact that Toronto has experienced a higher number of cases than other parts of Ontario. I also take judicial notice of the fact that in the last few months, Ontario experienced a “third wave” which eventually led to the Notice suspending jury to trials to at least July 5, 2021. I also take judicial notice of the fact that several vaccines have been approved for use in Ontario and are currently being administered.

[25] I adopt the comments of 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 of rising case numbers and limited supply of vaccine suggests this favours striking out the jury notice.

Prejudice to the Parties

[26] In exercising my discretion, I must balance the interests of the parties to achieve a fair result.

[27] The Plaintiffs argue that if the jury is not struck and the case adjourned, there will be additional costs. The Plaintiffs argue that they will suffer prejudice by the additional delay. The Plaintiffs do not assert any specific prejudice which will result if the jury is not struck and the trial adjourned. Plaintiffs’ counsel argues that the Plaintiffs have been waiting for the case to be decided for several years and want “closure”. No affidavit was filed by either of the FLA Plaintiffs which set out how the delay has affected them or why closure is important. There is no evidence that there is a risk that any witnesses may be unavailable for trial if there is further delay.

[28] The Defendants argue that the Plaintiffs have been unable to establish any actual prejudice. The Defendants refer to the fact that Mr. Sountharaajan died in December 2018 and as a result, section 267.5 of the Insurance Act R.S.O. c. I.8 has no application. That section provides that the Plaintiffs’ pre-trial income loss claim is recoverable at 70% of gross income while post-trial income is recoverable at 100% gross. Here, all income will be assessed on a past loss basis. The Defendants argue that this fact distinguishes this case from Johnson v. Brielmayer. The Defendants argue that the Plaintiffs failed to establish sufficient prejudice to justify striking the jury.

[29] Prejudice caused by delay alone, is sufficient to justify striking the jury notice. The Plaintiffs are not required to prove additional prejudice before a court is justified in striking a jury notice: Louis v. Poitras, at para. 21.

The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time for the motion. Accordingly, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown, J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown, J.A. notes, the whole raison d’etre of the civil justice system, as captured in r.1.04(1), is that courts will work to provide the “most expeditious… determination of every civil proceeding on its merits”: Louis v. Poitras, at para. 22.

[30] The Defendants did not tender any evidence on the motion. There is no evidence that the Defendants took any steps to ameliorate the prejudice to the Plaintiffs or establish that they will be prejudiced if the jury is struck. Although the Defendants stated that they would be prejudiced if they lost their substantive right to a jury, they did not state why that is the case. There is no submission that the Defendants adopted a litigation and settlement strategy based on the expectation that the trial would be with a jury. I note that Mr. Sountharaajan is deceased and as a result, the credibility of his testimony will not be an issue at trial.

[31] This case is distinguished from the cases in which the Defendants filed evidence with respect to prejudice. In Baker v. Blue Cross, and Hazzard v. MacDonald, the Defendants made advance payments to the Plaintiffs to ameliorate the potential prejudice caused by the delay. In Saadi v. Silva, the defendant filed affidavit evidence that its approach to the trial and settlement of the case was different because it was to proceed by a jury. 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. In Baker v. Blue Cross Life Insurance Company of Canada, 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. Justice Dow concluded that the evidence put forward by the defendant was a factor in favour of the dismissal of the plaintiff’s motion. The defendant also filed evidence of prejudice in Brooks v. Karim.

[32] I find that there is uncertainty as to when this case may be tried by a jury. I am satisfied that the uncertain delay results in prejudice to the Plaintiffs: Louis v. Poitras at para. 22. I am not satisfied that the Defendants will suffer prejudice if the jury is struck. There is no evidence of the “litigation detriment” the Defendants would sustain if the claims were determined by a judge rather than a jury. As noted by Justice Sanfilippo in Johnson:

It was insufficient to simply claim a substantive detriment through the striking of a jury notice, in principle without any evidence of a practical functional or purposeful disadvantage: at para. 52.

[33] In balancing the relative prejudice to the parties, I am of the view that the prejudice to the Plaintiffs caused by an uncertain delay in having this matter tried, outweighs prejudice to the Defendant from striking the jury. This factor supports striking the jury.

Age of the Case

[34] This action arises out of a motor vehicle accident that occurred on December 14, 2012. This was approximately six months before the accident which was the subject matter of Louis v. Poitras. The Plaintiff certified that the action was ready for trial 3½ years ago on November 7, 2017. Counsel for the Plaintiffs states that the action is ready to proceed to trial at this time.

[35] The Defendants argue that the action, as currently constituted, is a claim for Family Law Act damages, which did not arise until the claim was amended on December 4, 2019. The discoveries of the Plaintiffs took place one year ago in May 2020. He argues that the case is not old, and this is a factor which favours of the dismissal of the Plaintiff’s motion.

[36] I reject this argument. The action includes a claim for the pain and suffering and income loss sustained by Mr. Sountharaajan from the date of the accident to the date of his suicide. The FLA Plaintiffs argue that Mr. Sountharaajan’s suicide was caused by the motor vehicle accident. I am satisfied that the subject matter of this case is the motor vehicle accident that occurred 8½ years ago.

[37] I note that there was no excessive delay on the part of the Plaintiffs in moving this matter forward. The action was set down for trial within three years of the Statement of Claim being issued. This case is to be distinguished from Hazzard in which the action had been struck from the trial list and from Clarke in which there was a delay of four years before the action was set down for trial.

[38] The Defendants also argue that the age of this case is not as significant as other Toronto cases which did not strike the jury. In Henry the accident occurred 10 years before and in Clarke, the accident was 9 years before. In both cases the jury was not struck. The Defendants also argue that the age of this case is less than in Johnson where the accident occurred almost 10 years before the motion to strike the jury was brought. I note that the age of this case is longer than other Toronto cases which did not strike the jury; Jiang 7 ½ years, Saadi 6 years, Baker 4 years and Hazard 7 years.

[39] The age of the case is not determinative, but it is one of the factors to be considered in deciding whether a jury notice ought to be struck. In considering this factor, the court must not proceed on the basis that delay is to be expected and tolerated. 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.

[40] It is my view that 8 ½ years from the date of the accident puts this case at the older end of the range and is a factor that supports striking the jury.

[41] This matter was first scheduled to proceed to trial at the October 2020 civil jury sittings. The trial was adjourned at the request of the Plaintiffs because one of their experts was not available. Although the adjournment was at the Plaintiffs’ request, the trial would not have proceeded in any event because of the suspension of jury trials on October 9, 2020.

[42] In Hazzard the trial was scheduled for the June 2020 sittings. The estimate for trial was 20 days. Since the trial could not be completed within 15 days, it could not proceed during the sittings and the matter was adjourned to February 16, 2021. In Johnson the case was scheduled to be tried during the October 2020 jury sittings but was also adjourned because the trial would take more than the scheduled time.

[43] Several of the Toronto cases which dismissed the motion to strike the jury had not had a prior adjournment during the pandemic (Jiang, Saadi, Brooks, and Baker). Three cases which dismissed the motion (Henry, Hazzard and Clarke) had been subject to a prior adjournment. In Henry and Clarke, the adjournment was as a result of the closure of the courts. In Johnson, there was a prior adjournment of the trial during the pandemic, that was not related to the closure of the courts.

[44] Here, there was a prior adjournment of the trial. The adjournment occurred during the pandemic but was not related to the closure of the court. In my view, the fact that there was a prior adjournment for reasons unrelated to the pandemic is a neutral factor in the analysis.

Conclusions

[45] Jury trials are an important and integral part of the civil justice system in this Province. The right to a civil jury trial is a substantive and statutory right. It is however a qualified right and is subject to the overriding interests of the administration of justice and issues of practicality: Louis v Poitras at paras. 17 and. 24. The right to a jury trial is also subject to the objective of providing access to justice that is timely, affordable and proportionate: Hryniak v. Maudlin, 2014 SCC 7, at paras. 2, 28, and 66.

[46] The Toronto Region has taken significant steps to allow for jury trials during the pandemic. Although the Toronto Region is well-placed to conduct jury trials once the suspension on jury trials is lifted, Toronto has been particularly hard-hit by the pandemic. Even with the special measures in place, only one civil jury trial has been completed since the pandemic began 14 months ago. As noted by Sanfilippo, J., “This is a keen reflection that the capacity to conduct jury trials in Toronto Region is dependent on the state of the pandemic in Toronto”: Johnson, at para. 44.

[47] With respect to the issue of prejudice, the Plaintiffs established that they will experience general prejudice from the uncertain delay which will result if the jury is not struck and the trial is adjourned. The Defendants did not submit any evidence that steps were taken to ameliorate prejudice to the Plaintiffs caused by delay. The Defendants did not make any submissions or tender any evidence that they adopted a litigation strategy that was based on trial by jury. On balance, I am satisfied that the prejudice to the Plaintiffs favours striking the jury.

[48] This action arises out of a motor vehicle accident that occurred 8½ years ago. There is no indication that the delay in getting this case to trial, was as a result of any action or inaction on the part of the Plaintiffs. The length of delay is at the longer end of the range and is a factor that favours striking the jury. The action was scheduled to proceed to trial in October 2020 but was adjourned for reasons unrelated to the pandemic. It is my view that the prior adjournment for non-pandemic reasons is a neutral factor.

[49] In conclusion, I am satisfied that the Plaintiffs established that justice to the parties will be better served by discharging the jury and proceeding to trial as scheduled during the sittings commencing May 31, 2021. I do not reach this conclusion lightly. I acknowledge that the right to a jury is an important substantive right, however, on a balancing of the interests of the parties, the jury should be struck in this case. If the jury is not struck, the trial will be adjourned, and the Plaintiffs will be prejudiced by the uncertain delay. It is unknown as to when jury trials may resume or once resumed, when this matter may be reached. There have now been three civil jury sittings cancelled by reason of the pandemic. In addition, other matters with fixed jury trial dates have been adjourned. The number of cases that have lost their trial dates as a result of the pandemic adds to the uncertainty as to the length of any delay. There was no evidence tendered by the Defendants with respect to the issue of prejudice. The Defendant did not submit that its litigation strategy was based on trial by jury. I echo Justice J. Wilson’s comments made in her pre-trial conference trial management report that it is time for the action to be tried.

[50] This is not an appropriate case for a “wait and see” approach. The case is scheduled to proceed to trial during the jury sittings which are scheduled to begin on May 31, 2021. We know with certainty that the case cannot be tried by a jury when scheduled.

[51] Although this matter is scheduled for the sittings starting May 31, 2021, it is possible that even if the jury is struck, the case will not be reached and it will be necessary for the trial to be put over for reasons unrelated to the pandemic. The adjournment may be to a date when jury trials are permitted in the Toronto Region. In those circumstances, it would not be fair to deprive the Defendants of their right to have this action tried by a jury.

[52] In the unique circumstances of this case, I exercise my discretion to strike the jury and order the matter to proceed to trial as scheduled during the sittings commencing May 31, 2021. If the trial is adjourned to a date when jury trials may be permitted in the Toronto Region, the parties may return before me to determine whether the interests of justice justifies reinstating the jury notice: Higashi v. Chaiarot, 2020 ONSC 5523.

DISPOSITION

[53] For 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;

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

iv. If the trial is not reached and must be adjourned to a date when jury trials may be permitted in the Toronto Region, the parties may return before me to determine whether the interests of justice justifies reinstating the jury notice.

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

DATE: May 7, 2021