COURT FILE NO.: CV-16-553828

DATE: 20210526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMANDA WALTI Plaintiff

AND:

MUQARABI ELLAHI and MUBASHAR AHMAD Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: D. Levy and D. Cervini, for the Plaintiffs

D. Himelfarb, for the Defendants

HEARD: May 19, 2021

By videoconference

ENDORSEMENT

OVERVIEW

[1] The Plaintiff brings this motion to amend the Statement of Claim to increase the amount claimed to $2,000,000, and for an order striking the jury. The Defendants bring a cross-motion for an order for further medical examinations of the Plaintiff.

[2] This action arises out of a motor vehicle accident that occurred on July 22, 2014. The Plaintiff alleges that as a result of the accident, she sustained serious personal injuries including a complex left ankle injury that required surgery. She also alleges that she suffered psychological injuries and was diagnosed with chronic pain disorder, chronic insomnia, adjustment disorder associated with mild depression and anxiety, and post-traumatic stress disorder.

[3] The key dates in the action are:

a. The Statement of Claim was issued on June 1, 2016;

b. The Defendants delivered their Statement of Defence and Jury Notice on September 6, 2016;

c. The Examinations for Discovery took place on April 26, 2018;

d. The mediation was conducted on April 4, 2018;

e. The Plaintiff filed a Trial Record on July 9, 2018;

f. At the trial scheduling court on October 30, 2019, the trial was scheduled for the 2021 civil jury sittings (commencing May 31, 2021); and

g. The pre-trial took place on February 23, 2021. A second pre-trial took place on April 8, 2021.

[4] 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.

THE ISSUES

[5] The following issues must be determined on this motion:

a. Are the parties entitled to leave to bring the motions?

b. Is the Plaintiff entitled to an order amending the Statement of Claim to increase the amount claimed?

c. Is the Plaintiff entitled to an order striking the jury? and

d. Are the Defendants entitled to an order for further medical examinations of the Plaintiff?

ANALYSIS

a. Should leave be granted to the parties to bring the motions?

[6] The Plaintiff set the action down for trial on June 17, 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.

[7] 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.

[8] The Plaintiff argues there has been a change in circumstances. With respect to the motion to increase the prayer for relief, the Plaintiff argues that the recent expert evidence indicates that the damages may be greater than originally expected. With respect to the motion to strike the jury, the Plaintiff argues that the action was set down for trial before the COVID-19 pandemic. The pandemic constitutes a substantial and unexpected change in circumstances: Hazzard v. MacDonald, [2021] O.J. No. 1539, at para. 10.

[9] The Defendants do not oppose the Plaintiff’s request for leave. I am satisfied that there has been a substantial and unexpected change in circumstances. I grant leave to the Plaintiff to bring this motion.

[10] The Defendants argue that the volume of medical reports submitted by the Plaintiff since the action was set down for trial constitutes a change of circumstances to justify granting leave. The Defendants also argue that leave is necessary in the interests of justice.

[11] The Plaintiff did not oppose the Defendants’ request for leave. I am satisfied that the expert reports submitted by the Plaintiff since the action was set down for trial constitutes sufficient change in circumstances and I grant leave to the Defendants to bring their cross-motion.

b. Is the Plaintiff entitled to an order amending the Statement of Claim to increase the amount claimed?

[12] Rule 26 of the Rules of Civil Procedure provides that at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just.

[13] The Defendants do not oppose the Plaintiff’s motion to amend the claim to increase the amount claimed to $2,000,000. In the absence of any evidence that the amendment will result in prejudice to the Defendants, I grant the Plaintiff’s motion.

c. Is the Plaintiff entitled to an order striking the jury?

The Legal Framework

[14] The law with respect to striking the jury is not seriously in dispute. Both parties recognize that the right to a jury trial is a substantive one which should not be interfered with lightly, and not unless there is just cause or cogent reason to do so: Cowles v. Balac, 2006 O.R. (3d) 660, at para. 36. Although the right to a jury is important, it is not an absolute or constitutional right, and sometimes must yield to practicality: Girao v. Cunningham, 2020 ONCA 260, at para. 171.

[15] The 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 is better served by the discharge of the jury: Cowles, at para. 28, 37, 38. The right to a jury trial must be balanced with the objective to provide access to justice that is timely, affordable and proportionate to achieve a just and fair result: Louis v Poitras at para. 23.

[16] Typically, courts adopt the “wait and see” approach when considering requests to strike a jury. 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. 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.

[17] Sanfilippo, J., in Johnson v. Brielmayer, 2021 ONSC 1245, reviewed the cases that considered whether a jury is to be struck as a result 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: Johnson v. Brielmayer, at para. 32.

Consideration of the Factors

The Resources Available in Toronto Region

[18] In March 2020, all Ontario Courts suspended regular operations due to the COVID-19 pandemic. Following the suspension of regular operations, the Toronto Region put measures in place to allow jury trials to proceed during the pandemic. 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.

[19] On December 14, 2020, Chief Justice Morawetz announced that due to the ongoing pandemic all jury trials are suspended until at least February 1, 2021. On January 13, 2021, Chief Justice Morawetz extended the suspension of jury trials until at least May 3, 2021. On March 17, 2021, the suspension of jury trials was extended until at least July 5, 2021.

[20] In support of her position that the jury ought to be struck, the Plaintiff relies on a dozen cases in which the court exercised its discretion to strike the jury as a result of the pandemic. Only one of those cases, Johnson v. Brielmayer is in the Toronto Region. The Court of Appeal in Louis v. Poitras 2021 ONCA 49, noted 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. I am of the view that cases from outside the Toronto Region are of limited assistance: Hazzard v. MacDonald, 2021 ONSC 2283, at para. 16-19.

[21] The ability to conduct civil jury trials in the Toronto Region is unique in the province. The Toronto Region used its judicial resources to put in place procedures 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.

[22] In Johnson v. Brielmayer, Sanfilippo, J., noted that although the Toronto Region has the resources to conduct a jury trial during the pandemic, only one civil jury trial was completed over a 14-month period between March 17, 2021 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 procedures in place to conduct jury trials once the suspension is lifted, it is uncertain at this time, as to when the jury trials will be permitted.

[23] Counsel for the Plaintiff, Daniela Cervini swore an affidavit on May 12, 2021 in which she deposed that on May 7, 2021 she was advised by the Assistant Trial Co-Ordinator for the Toronto Region, Sara Al-Jawhary that the earliest jury trial sittings that can be offered at this time is June 2022.

[24] In considering the resources available in the Toronto Region to conduct jury trials during the pandemic, I must also take into account the resources available in the Toronto Region to conduct non-jury trials. I have been advised by Ms. Al-Jawhary that if the jury is struck, it is unlikely the matter would proceed in June 2021 and the trial would have to be rescheduled. There may be available dates for a three-week non-jury trial in the fall of 2021. If the parties are unable to agree on available non-jury trial dates, the parties will be required to attend Trial Scheduling Court to schedule a new trial date. At the present time, the earliest date available at Trial Scheduling Court for a 15-day non-jury trial is March 14, 2022.

[25] The ability to conduct a non-jury trial in the Toronto Region will result in a delay even if the jury is struck. If the jury is not struck, the earliest the case may be tried is June 2022. If the jury is struck, there may be some availability to try the case in the fall of 2021. If the parties are required to attend Trial Scheduling Court, non-jury trials are being scheduled for dates after March 14, 2022. There may be a further delay in obtaining a verdict for a judge-alone trial, because the presiding judge may take up to six months to release a decision: Baker v. Blue Cross, 2021 ONSC 1485, at para. 19.

The Local Impact of the Pandemic

[26] Both parties ask that I take judicial notice of the current status of the pandemic and its effect on the courts. Counsel for the Plaintiff notes that the province recently went into a lockdown and there is uncertainty as to when the lockdown will be lifted. Counsel for the Defendants notes that there has been a rollout of the vaccine and the trend is a reduction in new cases.

[27] I acknowledge that this a rapidly changing situation. In recent weeks, there has been an increase in the supply of vaccine available and a significant number of Torontonians are being vaccinated each day. On May 20, 2021, the provincial government eased the lockdown restrictions and entered into a staged reopening. There continues to be an unacceptable number of seriously ill patients, however the number of new Covid cases is decreasing. I take judicial notice of the fact that the overall trend is positive.

[28] I find the impact of the pandemic in Toronto to be a neutral factor. Even if the positive trends continue and jury trials resume in July 2021, it is unlikely that this case will be reached for a jury trial until June 2022, at the earliest.

Prejudice to the Parties

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

[30] The Plaintiff argues that if the jury is not struck, there will be further delay and uncertainly. The Plaintiff advances a claim for past and future income loss. Section 267.5 of the Insurance Act R.S.O. c. I. 8 provides that the Plaintiff’s pre-trial income loss claim is recoverable at 70% of gross income while post-trial income is recoverable at 100%. The Plaintiff argues that she will suffer prejudice with the loss of 30% of her income for the period of time the trial is delayed. The Plaintiff also argues if the trial is delayed, she will incur additional costs to update expert reports and to re-prepare for trial. There is a concern that witnesses’ memories will fade over time. Finally, it is argued that the Plaintiff is eager for her day in court and has already waited almost 7 years since the accident and almost 3 years since the trial record was filed.

[31] The Defendants deny that the Plaintiff will be prejudiced if the jury is not struck. They argue that the loss of 30% of the Plaintiff’s pre-trial income is insufficient prejudice to justify striking the jury: Baker, at para. 24. The Defendants also argue there is no evidence of deteriorating memory in this case.

[32] I am satisfied that the Plaintiff has established that she will experience prejudice if there is further delay in proceeding to trial.

[33] Prejudice caused by delay alone, is sufficient to justify striking the jury notice. The Plaintiff is not required to prove additional prejudice before a court is justified in striking a jury notice: Louis v. Poitras, at para. 21 and 22.

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.

[34] The Defendants argue that they will be prejudiced if the jury is struck. The Defendants state that they elected to proceed with a jury and prepared the case on that basis. Nicholas Wine, a lawyer at the firm acting for the Defendants swore an affidavit in which he states:

17. I verily believe that Defendants’ litigation strategy from the onset of the proceeding has been associated with this being a jury trial. This is, in part, due to the conflicting liability evidence pertaining to how the accident transpired, as well as the Plaintiff’s alleged chronic pain syndrome. I verily believe that the Defendants have strategically relied on this matter being tried by a Jury.

[35] I accept that in this case there are issues of credibility with respect to both how the accident occurred and the Plaintiff’s allegations of chronic pain. The Defendants state that the credibility issues resulted in the Defendants’ litigation strategy to have the case tried by a jury. As noted by Leitch, J. in Ismail v. Fleming, 2018 ONSC 780, a jury may assess chronic pain differently than a judge: at para. 43-45 and 56.

[36] In Baker, the Defendant filed an affidavit from the senior analyst involved in the carriage of the matter. His evidence was that based on the medical evidence and surveillance that the litigation strategy was to proceed with a jury. As Dow, J. noted in Baker, the existence of a litigation strategy is a valid consideration as noted in Saadi v. Silva, 2020 ONSC 6700, at para. 44 and in Brooks v. Karim 2020 ONSC 7770, at para. 30: Baker, at para. 15.

[37] I find that evidence of the Defendants’ litigation strategy to have the matter tried by a jury is a factor which distinguishes this case from cases in the Toronto Region which struck the jury. In Johnson v. Brielmayer (at para 51), Cave v. Hovepyan, 2021 ONSC 3386 (at para. 23) and Sountharaajan v. Troisi, 2021 ONSC 3495 (at para. 30), there was no evidence on the part of the defendant that its litigation strategy was based on a jury’s assessment of credibility.

[38] I am satisfied that both parties have put forward evidence of prejudice. If the jury notice is not struck and the matter adjourned to, at least June 2022, the Plaintiff will be prejudiced by the further delay, the loss of the 30% of her pre-trial income loss claim, and the cost to update reports and re-prepare for trial. If the jury notice is struck, the Defendants will be prejudiced by the fact that they will lose the right to have the Plaintiff’s credibility assessed by a jury and lose the benefit of its litigation strategy.

[39] Unfortunately, even if the jury is struck, there is no guarantee as to when the non-jury trial may take place. The Plaintiff will be required to incur additional costs to re-prepare for trial. I am satisfied that the Plaintiff will be prejudiced by the delay whether the jury is struck and the matter proceeds as a non-jury trial, or if the jury is not struck and the matter is tried in June 2022, at the earliest. While the Plaintiff will be prejudiced either way, the Defendants will be prejudiced only if the jury notice is struck. I am of the view that the Defendants’ loss of its litigation strategy is a factor in favour of dismissing the Plaintiff’s motion.

Age of the Case

[40] This action arises out of a motor vehicle accident that occurred on June 22, 2014. The Plaintiff certified that the action was ready for trial on July 9, 2018.

[41] I note that there has not been excessive delay on the part of the Plaintiff 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.

[42] The Defendants argue that the age of this case is not as significant as other Toronto cases that did not strike the jury. In Henry v. Zaiton [2021] OJ No. 983, the accident occurred 10 years before the motion to strike the jury, and in Clarke v. Tenant, 2021 ONSC 2818, the accident was 9 years before the motion. 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 not significantly different from the cases which did not strike the jury; (Jiang, 7 ½ years, Saadi, 6 years, Baker, 4 years and Hazzard, 7 years).

[43] It is my view that less than 7 years from the date of the accident to the date of the trial, puts this case in the middle of the range and is a neutral factor in the analysis.

[44] This matter was first scheduled to proceed to trial at the June 2021 civil jury sittings.

[45] The Toronto cases in which the jury was struck, had been subject to prior adjournments of the trial. In Johnson, the case was scheduled to be tried during the October 2020 jury sittings but was adjourned because the trial would take more than the scheduled time. In Cave, the matter was to proceed to trial at the June 2020 sittings but was adjourned as a result of the court shutdown in response to the pandemic. In Sountharaajan, the matter was scheduled to proceed at the October 2020 jury sittings but was adjourned for reasons unrelated to the pandemic. In Jiang, Saadi, Brooks and Baker there had been no prior request for an adjournment. In those cases, the motion to strike the jury was dismissed.

[46] The fact that this case was not previously adjourned is a distinguishing factor from those cases in the Toronto Region which struck the jury: Johnson v. Breilmeyer, at para. 34. Although not determinative of the issue, the fact there was no prior adjournment of the trial supports a dismissal of the Plaintiff’s motion.

Conclusions

[47] Jury trials are an important and integral part of the civil justice system. The right to a civil jury trial is a substantive and statutory right. However, the right is qualified and 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.

[48] The Plaintiff has not satisfied her onus of establishing that justice to the parties will be better served by discharging the jury in this case. I find that the fact there had not been a previous adjournment and the evidence tendered by the Defendants of its litigation strategy to have the Plaintiff’s credibility assessed by a jury, are distinguishing features from the cases in the Toronto Region in which the jury was struck.

[49] I conclude that in the unique circumstances of this case, justice is best served by not striking the jury. The Plaintiff’s motion to strike the jury is dismissed.

d. Are the Defendants entitled to further medical examinations of the Plaintiff?

[50] The Defendants seek an order pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and R. 33 of the Rules of Civil Procedure for a medical examination of the Plaintiff.

[51] The Defendants state that they require a further examination by Dr. Kleinman and a new examination by a psychologist. The Defendants argue that the Plaintiff produced a significant amount of medical evidence since her initial defence medical assessment with Dr. Kleinman in 2019. On February 26, 2021, the Defendants received updated psychological records from Dr. Bodenstein, which provide that the Plaintiff is continuing to receive psychiatric treatment.

[52] A party seeking the order must demonstrate that the assessment is warranted and legitimate and not made with a view to delaying the trial or causing prejudice to the other party. A request may be legitimate where there is evidence that:

i. the party’s condition has changed since the date of a previous examination;

ii. a more current assessment of the plaintiff’s condition is required for trial;

iii. the plaintiff served specialist reports after the defendant conducted its assessment; or,

iv. some of the parties’ injuries fall outside of the expertise of the first examining doctor: Bonello v. Taylor, 2010 ONSC 5723, at para. 16.

[53] The Plaintiff argues that the Defendants failed to establish that the medical examinations are necessary. In the alternative, the Plaintiff argues that even if the Defendants establish that the examinations are necessary, the request should be denied because the Defendants failed to proceed diligently and in accordance with the timetable for the delivery of expert reports. The parties agreed to a timetable that included a deadline of December 25, 2020 for the service of Defendants’ expert reports. The Plaintiff’s reports were served in accordance with the timetable. The Plaintiff argues that there are no extraordinary circumstances in this case that would justify granting the Defendants’ request for medical assessments on the eve of trial.

[54] For the reasons set out above, the trial in this matter will not take place in June 2021. The parties are no longer on the eve of trial.

[55] I am satisfied the Defendants have established that further medical examinations are necessary. Although the Plaintiff alleged a psychological injury in the Statement of Claim, it was only with the production of the records from Dr. Bodenstein in February 2021 that the Defendants learned the Plaintiff was continuing to receive psychological treatment.

[56] There is now sufficient time before trial to conduct the medical examinations. The Defendants argue that there is no prejudice to the Plaintiff to proceed with the medical examination but the Defendants may suffer prejudice if they are not given an adequate opportunity to meet the Plaintiff’s case: Galea v. Firkser [2013] OJ No. 1251, at para. 14. The Plaintiff focused her argument on the fact that the request for medical examinations was being made too close to the commencement of trial. No other allegations of prejudice were raised.

[57] I am satisfied that there is no prejudice to the Plaintiff to submit to a further examination by Dr. Kleinman and a first examination with a psychologist. She has put her physical and psychological condition in issue in the action. She recently delivered records which provide that she is continuing to attend treatments with Dr. Bodenstein. The examinations can be conducted at this time without delaying the trial.

[58] I grant the Defendants’ motion for a further examination with Dr. Kleinman and an examination with a psychologist. The appointments must take place at the earliest possible date which is convenient to the Plaintiff and the doctors. I grant the Defendants’ request to extend the time for service of the reports. The reports must be served no later than September 30, 2021.

DISPOSITION

[59] For the reasons set out above, I make the following order:

i) The parties are granted leave to bring their respective motions;

ii) The Plaintiff’s motion to amend the Statement of Claim to increase the amount claimed to $2,000,000, is granted;

iii) The Plaintiff’s motion to strike the jury is dismissed; and

iv) The Defendants’ motion to compel the Plaintiff to attend a medical examination with Dr. Kleinman and a psychologist is granted.

[60] The Plaintiff was successful with respect to its motion to amend the Statement of Claim. The Defendants were successful with respect to both opposing the Plaintiff’s motion to strike the jury and their motion to compel the Plaintiff to attend a medical examination.

[61] I encourage the parties to come to an agreement with respect to the costs of the motions. If the parties are unable to come to an agreement, the Defendants may file written submissions of no more than 3 pages in length, excluding bills of costs and caselaw within 20 days of the date of this endorsement. The Plaintiff may file her written cost submissions on the same basis within 20 days of receiving the Defendants’ submissions.

DATE: May 26, 2021