Court File and Parties

Court File No.: CV-15-1658 (Brampton) Date: 2021-05-18 Superior Court of Justice – Ontario

Re: Rosa De Dieu and Kristina De Dieu, Plaintiffs And: Geordan Taylor and Annette Brown, Defendants

Before: Justice R. Chown

Counsel: Michael C. Brown, for the Plaintiffs Harvey Klein, for the Defendants

Heard: By video conference, May 18, 2021

Endorsement

[1] This is a motion to strike the jury notice in light of the pandemic and so that the trial may proceed without further delay.

[2] Mr. Klein agreed that it was appropriate to grant leave to hear this motion.

[3] The matter arises from a motor vehicle accident of September 7, 2013. The statement of claim was issued April 8, 2015. The trial record was served on May 16, 2018. Through no fault of the parties, the matter was struck from the trial list. A pretrial was held in a companion action on December 2, 2019. This matter was restored to the trial list at that pretrial and both matters were put on the January 2021 trial sittings list. The other matter settled. The pretrial in this matter was held on October 23, 2020.

[4] The trial was adjourned from the January 2021 sittings at an opposed motion for defence medicals heard on November 13, 2020 by R.S.J. Ricchetti. Due to the pandemic, the court was not hearing jury trials in January 2021. Although the motion was initially opposed, a consent order was made at the motion. That order said, “The January 2021 trial date is vacated. The trial is rescheduled for the May 2021 Blitz list but shall not be called before June 1, 2021.”

[5] A further pretrial in front of Justice Daley has been arranged for May 20, 2021.

[6] The parties are or should be ready to proceed to trial commencing June 1, 2021. However, jury matters will still not be proceeding in these sittings.

[7] Mr. Klein argues that the matter should be adjourned to the January 2022 sittings so that it may be heard by a jury.

[8] Counsel were advised by Justice Tzimas at a recent assignment court that matters that are not reached in the January 2022 sittings will be traversed to the January 2023 sittings because the May 2022 sittings are full.

[9] In my view, the approach taken by Justice Baltman in Mohan v. Howard, 2021 ONSC 2064 and by Justice Trimble in Roszczka v. Tiwari, 2021 ONSC 2372 is the proper approach to take in this case. There are many similar features and arguments available to the parties in this case. For example, both of those cases:

a. are Central West Region cases;

b. arise from long-ago car accidents; and

c. were set down for trial in May of 2018.

[10] The effect of the orders of in Mohan and Roszczka is that the trials are not to be delayed waiting for the return of jury trials, but if for any reason when the trial is called a jury trial is available, they will proceed with a jury.

[11] As Justice Baltman said at para. 16 of Mohan, this approach achieves the goal of avoiding further delay caused by the Covid-19 pandemic in bringing the matter to trial, but protects the statutory and substantive right to a trial by jury in the event Brampton has resumed conducting jury trials when the trial in this action is reached.

[12] Mr. Klein distinguished Mohan on the basis that (a) the parties in Mohan consented to striking the jury and the issue was whether it should be struck conditionally or without condition; and (b) conditions are different now in that vaccines are available and there is every reason to be optimistic that jury trials will resume by January of 2022.

[13] If it is adjourned, the chances of this matter getting heard in January 2022 are unknown. Mr. Klein argued that if the matter is not reached at the January 2022 sittings, then the plaintiffs could renew their motion to strike the jury notice. At that point, if it remains the case that a jury trial would not be available until January 2023, it would be difficult to dispute the issue. He urged a wait and see approach.

[14] It is anticipated that the court will be inundated once pandemic restrictions are relaxed. Criminal jury trials will take precedence. The circumstances do not permit a jury trial currently and may not permit a jury trial for some time. Once jury trials are possible, the backlog in the system may result in considerable further delay. In contrast, the court can likely accommodate and hear this matter by videoconference during June if it proceeds as a judge alone trial.

[15] Before the pandemic, the delays litigants experienced in civil matters in this jurisdiction were significant and should not be normalized or considered acceptable. The pandemic is not the fault of either party or the court, but it has compounded the problem of delayed justice. The right to a jury must be weighed against the injustice inherent in a delayed trial, in a case which has already involved a lengthy delay, and which faces uncertain and potentially inordinate further delay if not reached in the upcoming sittings.

[16] I therefore order:

a. This matter is to remain on the list for the upcoming sittings, not to be called before June 1, 2021.

b. If this matter can be reached in this sittings, the jury notice shall be struck and it shall proceed as a judge alone trial.

c. If the matter is not reached in this sittings, then it shall be set for the earliest trial date convenient to the Court, to be fixed by the Trial Coordinator or by an assignment court judge, in the normal course for matters that are not reached during the sittings.

d. If the Court can accommodate the trial of these actions on that set date, with a jury, it shall proceed with a jury.

e. If the Court cannot accommodate the trial with a jury on that set date, the jury notice is struck, and the trial shall proceed before a judge alone.

Costs

[17] Counsel provided costs outlines and provisional submissions. The plaintiffs seek more than double what the defendant seeks in costs but to some extent this is justified given that the plaintiffs brought the motion and were required in this case to file more extensive materials, whereas the defendant was able to respond only as needed.

[18] The immediate result favours the plaintiffs, but success is divided. The fair approach in the circumstances is to order that the costs of this motion shall payable in the cause, fixed in the amount $3,000 on a partial indemnity basis for the plaintiffs and $1,674 on a partial indemnity basis for the defendant.

Chown J.

Date: May 18, 2021