COURT FILE NO.: CV-14-509586

DATE: 20210526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATERINA DELJANOV Plaintiff

AND:

PEEL CONDOMINIUM CORPORATION NO. 516, also known as APPLEWOOD PLACE CONDOMINIUM and 1225209 ONTARIO LIMITED and BROOKFILED OFFICE PROPERTIES MANAGEMENT CORPORATION Defendants

BEFORE: Chalmers, J.

COUNSEL: D. Cortinovis, for the Plaintiff

J. Hirsh, for the Defendants

HEARD: May 19, 2021

By videoconference

AMENDED ENDORSEMENT

OVERVIEW

[1] The Plaintiff brings this motion to strike the jury.

[2] This action arises out of a trip and fall accident that occurred on May 22, 2013. The Plaintiff is currently 62 years of age. She alleges that as a result of the fall, she sustained serious orthopaedic injuries. The parties have settled the quantum of damages and the only remaining issue is liability.

[3] The key dates in the action are:

a. The Statement of Claim was issued on August 1, 2014;

b. The Defendants delivered their Statement of Defence and Jury Notice on September 11, 2014;

c. The Examinations for Discovery took place on September 16, 2015;

d. The mediation was conducted on November 24, 2015;

e. The Plaintiff filed a Trial Record on June 7, 2017;

f. The pre-trial was conducted on May 28, 2020. A 12-day civil jury trial was scheduled by Sanfilippo, J. to proceed during the three-week civil jury sittings in June 2020;

g. As a result of the pandemic, the trial date in June 2020 was vacated. The trial was rescheduled for the June 2021 civil jury sittings; and

h. The Plaintiff brought a motion to strike the jury which came before Dow, J. on January 25, 2021. The Plaintiff agreed to dismiss the motion, but with the right to renew the request to strike the jury if jury trials remain suspended in June 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 will be determined on this motion:

a. Should leave be granted to the Plaintiff to bring this motion to strike the jury?

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

ANALYSIS

a. Should leave be granted to the Plaintiff to bring this motion to strike the jury?

[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. The Plaintiff must seek leave to bring this motion.

[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] Here, 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 Plaintiff to bring this motion.

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

The Legal Framework

[9] A party may require the issue of fact be tried, or the damages assessed, or both, by a jury under R. 47.01 of the Rules of Civil Procedure and s. 108 of the Courts of Justice Act, R.S.O. 1990 c.C.43. 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: Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241 (ONCA), at para. 43(1) and Cowles v. Balac, 2006 O.R. (3d) 660, at para. 36.

[10] Although trial by jury is an important right, the court has the discretion to strike the jury. The right to a jury is not absolute, and sometimes must yield to practicality: Girao v. Cunningham, 2020 ONCA 260, at para. 171.

[11] 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 is better served by the discharge of the jury: Cowles, at para. 28, 37, 38. The objective of a civil trial is to provide justice between the parties and therefore neither party has an unfettered right to determine the mode of trial: Cowles, at para. 36.

[12] 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.

[13] A body of caselaw has developed with respect to motions to strike juries due to the suspension of jury trials during the pandemic. 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. The Court of Appeal also stated that 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.

[14] 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 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

[15] 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.

[16] On December 14, 2020, Chief Justice Morawetz announced that due to the ongoing pandemic all jury trials were 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.

[17] The ability to conduct civil jury trials in the Toronto Region is unique in the province. 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.

[18] 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 has been 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.

[19] Counsel for the Plaintiff stated in argument that he has been advised by the trial co ordinator that even if jury trials are permitted on July 5, 2021, no civil jury trials will be conducted in the summer of 2021.

[20] 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 the trial co-ordinator that if the jury is struck, it could remain on the list and may be called at any time during the month of June 2021. If the matter is not reached in June 2021, the parties can obtain a new trial date at that time. Dates are currently available for a 5-day non-jury trial in November 2021.

The Local Impact of the Pandemic

[21] Both parties asked that I take judicial notice of the current status of the pandemic. Counsel for the Plaintiff noted that Canada is currently experiencing a detrimental third wave of the pandemic. There are serious concerns about the spread of the virus and its effects on public health. The Defendants state that the infection rates have been steadily decreasing over the past few weeks and vaccinations have been growing exponentially. As of May 8, 2021, over 6,000,000 vaccinations had been administered in Ontario.

[22] I acknowledge that this a rapidly changing situation. On May 20, 2021, the provincial government eased the lockdown restrictions and entered into a staged reopening. Although there continues to be an unacceptable number of seriously ill patients, I take judicial notice of the fact that the recent trend is positive.

[23] Even if the positive trends continue and jury trials are permitted on July 5, 2021, the trial co-ordinator has advised that no civil jury trials will take place in the summer of 2021.

Prejudice to the Parties

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

[25] The Plaintiff argues that if the jury is not struck, there will be further delay and uncertainly. The Plaintiff states that she has been prejudiced by the elapsed time in getting this case to trial. The Plaintiff has already waited eight years since the accident and almost four years since the trial record was filed. The Plaintiff argues that witnesses’ memories will fade over time.

[26] 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.

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

[28] The Defendants argue that the Plaintiff has failed to demonstrate any prejudice if the jury notice is not struck. The parties have agreed on damages and the only issue to be tried is liability. As a result, the Plaintiff is not prejudiced by any ongoing loss of income before trial.

[29] The Defendants state that the primary dispute is with respect to the placement/location of the speedbump in the condominium parking lot. The Defendants state that this is a straightforward issue that requires the common sense of a jury. Also, the Defendants wish to use demonstrative evidence at trial including the imaging of the appearance of the speedbump and state that the demonstrative evidence may not be as effective on a video conferencing.

[30] The Defendants do not allege that the Plaintiff’s credibility will be an issue at trial. The damages are admitted and therefore there will be no surveillance or evidence from the Plaintiff’s doctors or employers. The Defendants did not put forward any specific evidence of a litigation strategy based on trial by jury. The Defendants state that they wish to have the placement of the speedbump determined by a jury but do not state how they would be prejudiced if the issue was instead tried by a Judge. I find that the evidence put forward by the Defendants in this case, is insufficient to establish a “practical functional or purposeful disadvantage” if this matter proceeded to trial without a jury: Johnson v. Breilmayer, at para. 52.

[31] In balancing the interests of the parties, I am of the view that the prejudice to the Plaintiff as a result of the additional delay is a factor that favours granting the Plaintiff’s motion.

Age of the Case

[32] This action arises out of a trip and fall accident that occurred on May 22, 2013. The Plaintiff certified that the action was ready for trial on June 17, 2017.

[33] There was no excessive delay on the part of the Plaintiff in moving this matter forward. The action was set down for trial less than three years after the Claim was issued. Neither party requested any adjournments nor contributed to delay in moving the matter forward.

[34] It is my view that 8 years from the date of the accident to the date of the trial, is not a delay that is to be “expected or tolerated”: Louis v. Poitras, at para. 21. I am of the view that the age of the case favours granting the Plaintiff’s motion.

[35] This matter was first scheduled to proceed to trial at the June 2021 civil jury sittings. The matter was adjourned as a result of the pandemic. The trial was scheduled for the June 2021 jury sittings, commencing on May 31, 2021.

[36] In January 2021, the Plaintiff brought a motion to strike the jury. The motion came before Dow, J. The Plaintiff agreed to a dismissal of the motion and the matter was confirmed for the June 2021 civil jury sittings. The expectation was that if jury trials continue to be suspended in June 2021, the motion to strike the jury would be renewed. After the Notice to the Profession dated March 17, 2021, the trial co-ordinator advised that the matter was no longer on the trial list. The Plaintiff renewed its motion to strike the jury.

[37] This case has now been subject to two adjournments because of the pandemic. The Defendants argue that it was not likely the case would have proceeded in June 2020 in any event, because damages had not been agreed to and no updated medical documentation had been produced. I am not prepared to assume the action would not have been ready for trial. As a result of the pandemic, there was a general shutdown in mid-March 2020. If there had not been a shut down the parties may have had sufficient time to be ready to proceed to trial in June 2020.

[38] 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. Sanfilippo, J. found that the prior adjournment, even for reasons not related to the pandemic, was a factor that favours striking the jury.

[39] Although not determinative of the issue, the two prior adjournments of the trial because of the pandemic, is a factor that favours granting the Plaintiff’s motion.

Conclusion

[40] The right to a civil jury trial is a substantive and statutory right. However, it is 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 para. 2, 28, and 66.

[41] The Plaintiff has put forward “cogent reasons” to establish that justice to the parties will be better served by the discharge of the jury: Cowles v. Balac, at para. 36. The matter has been subject to two prior adjournments during the pandemic. The Plaintiff will be prejudiced by the ongoing delay in proceeding to trial. The Defendants failed to establish any “practical functional or purposeful disadvantage” if this matter proceeds to trial without a jury: Johnson v. Breilmayer, at para. 52.

[42] In considering the resources to conduct a trial in the Toronto Region, I am satisfied that even if the suspension of jury trials is not extended beyond July 5, 2021, there will be no civil jury trials in the summer of 2021. I have been advised by the trial coordinator that if the jury is struck, it could remain on the list and may be called at any time during the month of June. If the matter is not reached in June 2021, dates are currently available for a 5-day non-jury trial in November 2021.

[43] In the unique circumstances of this case, I conclude that justice to the parties is better served by the discharge of the jury.

[44] This case will remain on the June 2021 list to be tried by judge-alone. If the matter is not reached the parties are directed to contact the trial coordinator to schedule the trial for the first available date. If, when this matter to called for trial, civil jury trials are permitted in the Toronto Region, the Defendants may bring a motion before me to determine whether the interests of justice justify reinstating the jury: Higashi v. Chairot, 2020 ONSC 5523, and Sountharaajan v. Troisi, 2021 ONSC 3495, at para. 52.

DISPOSITION

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

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

ii) The Plaintiff’s motion to strike the jury is granted;

iii) If when the matter is called for trial, civil juries are permitted in the Toronto Region, the Defendants may bring a motion before me to determine whether the interests of justice justifies reinstating the jury.

[46] Costs of the motion are reserved to the trial judge.

DATE: May 26, 2021