Court File and Parties

COURT FILE NO.: CV-17-00000081-0000 DATE: 20210531

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KIRI-CHRISTINA HAUCK Plaintiff

– and –

SYLVIE THOMAS-BEDARD and JOHN DOE Defendants

Counsel: Joseph Dart, for the Plaintiff David H. Lauder, for the Defendant Sylvie Thomas-Bedard

HEARD at Kingston by video conference: 22 April 2021 (with further written submissions on 21 May 2021)

REASONS FOR DECISION

(Motion to strike jury notice/adjourn trial)

Mew J.

[1] This personal injury action is presently scheduled to be tried in Kingston by a jury on a running trial list for sittings that commence on 7 June 2021. The defendant does not want to proceed with the trial, as scheduled, if, because of public health restrictions, it is not possible to have a jury hear the case. The plaintiff wants the trial to proceed. She moves to strike the jury notice so that any restrictions on the availability of jury trials should not affect when the case can be heard.

[2] Although there is no formal cross-motion for an adjournment of the trial, the practical conclusion, if the jury notice is not struck, is that the trial will not be able to proceed as scheduled. The defendant suggests that in such an eventuality, the case should be put over to the autumn by which time the restrictions may have changed.

[3] Motions such as this one are being brought all across the Province of Ontario at the present time. It is now well-established that the pandemic presents a substantial and unexpected change of circumstances justifying leave being granted, pursuant to rule 48.04(1), notwithstanding that this action has been set down for trial: see, for example, Premanathan v. Kandasamy, 2021 ONSC 3207.

[4] Leave to bring the motion is therefore granted.

[5] After this motion was argued on 22 April 2021, a memorandum was circulated by me on 14 May 2021 in my capacity as Local Administrative Judge for Kingston and Napanee (the "LAJ Memorandum"), providing information concerning the scheduling of hearings in those court centres. Included in that memorandum was information concerning the availability of jury trials.

[6] In order to give the parties as much notice of my disposition of this motion as possible, I released a short endorsement on 28 May 2021 conditionally striking the jury notice, with reasons to follow.

[7] These are my reasons.

[8] While the availability of a civil jury trial is a preciously guarded entitlement in this province, there is no absolute right to a jury trial. Hence the power of a judge, under Rule 47.02(2), to strike out a jury notice where a jury trial is inappropriate.

[9] In determining whether the court should exercise its discretion to strike out a jury notice, the overarching consideration is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury. Sometimes the right to a jury must yield to practicality: Girao v. Cunningham, 2020 ONCA 260, at para. 171.

[10] The ongoing public health pandemic, which started in March 2020, has significantly restricted the availability of in-person hearings in a courtroom. The vast majority of hearings in civil and family law cases have been conducted virtually, using "Zoom" video conferencing and other technologies. Many judge-alone criminal proceedings have also proceeded either completely virtually, or through a combination of virtual and in-person proceedings.

[11] While there is scope in jury trials for individual witnesses to give their evidence by video link, the jury, judge, and counsel are situated in the courtroom. Many courtrooms across the province have been adapted to provide for physically distanced jury boxes, with jurors separated by sheets of plexiglass. But inevitably, not all courtrooms that could previously handle a jury trial have been adapted to be able to do so while public health restrictions, physical distancing requirements and room capacity limitation prevail.

[12] Motions such as the present one require the court to weigh the respective interests of the parties in preserving the election by one or both of the parties to have a case heard by a jury while, on the other hand, liberally construing the rules (which would include a motion to strike out a jury notice brought under Rule 47.02) to secure the just, most expeditious and least expensive determination of a case on its merits: Rules of Civil Procedure R.R.O. 1990, Reg.194, rule 1.04(1).

[13] Where a motion to strike a jury notice is prompted by public health considerations there is, as Hourigan J.A. observed in Louis v. Poitras, 2021 ONCA 49, at para. 3 "…no single province wide answer to the problems we face in delivering timely civil justice". He continues "local conditions will necessarily impact the choice of effective solutions". And at para. 26 he states:

A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75.

[14] The accident giving rise to this action occurred in Ottawa on 27 March 2015. As a result, the plaintiff alleges injuries including chronic pain and numbness to her right arm and shoulder, in her neck and back, headaches, anxiety and depression-like symptoms. The plaintiff is a music teacher, and her injures have, allegedly, been difficult and limiting.

[15] As already indicated the trial is presently scheduled to be heard on a running list commencing 7 June 2021. In practice, this means that the case is likely to be called for trial during the month of June, but not necessarily on 7 June itself. It could be days, a week, or even a fortnight later. And there is no absolute guarantee that the case will be called. It will depend on what happens with other matters scheduled to be heard during the same period.

[16] Counsel advised that this case is, essentially, ready for trial. At the time the motion was heard in April, the defendant's counsel reported having experienced some difficulty obtaining expert reports due to the impact of the pandemic. An anticipated physiatrist's report was not delivered by the defendant until 11 May. On 19 May, the plaintiff served a responding physiatry report. As of 21 May, the defendant was still waiting for a future care costs report. Significantly, however, neither the plaintiff nor the defendant have sought an adjournment of the trial based on lack of trial preparedness or late delivery of reports.

[17] The LAJ Memorandum advised members of the legal profession with cases in Kingston that there will be no jury trials in June 2021 and, further, that no jury trials have been scheduled for the months of July or August. The memorandum also advised that:

1. There is currently only one courtroom in Kingston which is appropriately equipped for jury trials (civil or criminal).
2. Where both civil and criminal jury trials have been scheduled concurrently, priority will be given to the criminal matters.
3. If all criminal jury cases that have been scheduled for trial between September and December go ahead, it will not be possible to offer a jury for any civil trial listed to be heard during those months.
4. While there are windows of opportunity between now and the end of the year to schedule short trials of a week or less, at the present time the earliest available dates for any matter requiring two or more consecutive weeks for a hearing are in April or May 2022.

[18] The plaintiff argues (and I agree) that the practical effects of the information provided to the profession by the LAJ Memorandum are that:

1. there is a definite likelihood that no civil jury trials will be heard in Kingston in 2021; and
2. if this matter is adjourned, the earliest date the trial is likely to occur will not be until April or May 2022.

[19] As a consequence, the trial can only proceed on schedule (i.e. beginning on or shortly after 7 June 2021) if there is no jury, and if it does not proceed then, it would be adjourned until at least April or May 2022, nearly a year after its presently scheduled commencement, and over seven years after the accident.

[20] The trial record was filed on 1 August 2019 and the case was pre-tried on 21 January 2020. It was at that time that the trial was set to be heard on the June 2021 list.

[21] The plaintiff asserts that she will be prejudiced by further delay of the trial for a number of reasons, including the following:

1. The deductible applicable to her claim for damages will increase by operation of the Insurance Act;
2. Her ongoing loss of income claim is limited to recovery of 70% of income lost due to injury up to the point of trial. She cannot recover 100% of her loss of income claim until a judgment following a trial; and
3. The likely need to refresh or update expert reports in respect of which the disbursements incurred already stand at $37,144.68.

[22] To facilitate getting the matter to trial, the plaintiff has not objected to the late delivery by the defendant of her defence physiatry medical expert report.

[23] Recent amendments to Rule 1.08 of the Rules of Civil Procedure expand the range of situations in which various proceedings or steps in a proceeding may be conducted by telephone or video conference, and authorises the court, on motion or on its own initiative, to make orders directing telephone or video conference hearings on such terms as are just. Although those powers extend to the oral evidence of a witness and the argument at trial, Rule 1.08 does not on its face extend to selecting, empanelling, instructing or addressing a jury. In other words, the Rules do not permit virtual civil jury trials.

[24] The plaintiff says she is respectful of a party's entitlement under the Courts of Justice Act R.S.O. 1990, c. C.43, s.108, to have the issues of fact tried, or the damages assessed, or both, by a jury. That said, her preference is that the jury notice in this case be struck once and for all. In the alternative, she submits that if the court is not prepared to simply strike the jury notice, the appropriate order would be similar to those made in Mohan v. Howard, 2021 ONSC 2064, at para. 18, or Weaver v. Clunas 2021 ONSC 2364, at paras. 36 and 37, namely an order conditionally striking a jury notice if a jury trial is not available when the case is called to trial, but without prejudice to giving effect to the jury notice if a jury trial can be held when the case is called.

[25] The defendant notes that this matter has not suffered from substantial delay. The matter is coming on for trial for the first time in June 2021. There have been no previous adjournments. The accident giving rise to the claim occurred a little over six years ago. The statement of claim was served in May 2017. Accordingly, the case would be coming to trial a little over four years after that.

[26] I pause to observe that while it may be a sad reflection on the ability of the justice system to provide timely access to justice to parties involved in civil disputes, a six or seven year interlude between an accident occurring and a trial taking place is not untypical.

[27] The defendant submits that there is no significant evidence that the delay that would result from this matter being adjourned is sufficiently prejudicial to warrant striking the jury notice. In Baker v. Blue Cross Life Insurance, 2021 ONSC 1485, at paras. 15 and 22, Dow J. held that four years was not an unconscionable amount of time for it to take for an action to proceed to trial, and that if such an action was coming up for trial for the first time, and the mater had not been previously adjourned, it would be a factor for favouring dismissal of a plaintiff's motion to strike a jury notice. I am urged to take a similar approach in the present case.

[28] Baker was, however, a Toronto case and, as Dow J. observed, at para. 10:

As soon as the suspension is lifted, jury panels can be assembled and civil jury cases can proceed in Toronto. This compares more favourably to other locations of the Superior Court of Justice in Ontario where civil, family and criminal matters share their facilities. Further, family and criminal matters may understandably need to take priority in those other regions when in person hearings resume.

[29] The defendant advocates a "wait and see" approach and submits that the trial should be adjourned to a September date. If, by then, jury trials are capable of being tried, the matter would proceed by jury. In further written submissions which I invited after providing counsel with a copy of the LAJ Memorandum, the defendant stated that if, by September, the case was called but jury trials were still unavailable, it could proceed to trial by judge alone.

[30] In other words, both the plaintiff and the defendant now accept the principle of a conditional striking of the jury notice, but they disagree on when that disposition should be ordered.

[31] The main problem with the position taken by the defendant is that, as matters presently stand, there is no space in the trial schedule in Kingston for another two week trial, with or without a jury, for the remainder of this year. If the case cannot proceed in June, it will likely be adjourned until the Spring of 2022 at the earliest. It will not be called in September.

[32] Trials get adjourned for all sorts of reasons. The party opposing an adjournment will typically argue that delaying the trial will prejudice that party. Delay inevitably means that the case remains in the hands of the lawyers for longer, and that usually means more expense. Few parties enjoy litigation. It is stressful and unpleasant for most. Moreover, memories will fade. Witness will move away or become unavailable. It is one of the reasons that limitation periods exist.

Every trial judge is aware that stale claims with stale testimony produce bad trials and poor decisions.[^1]

[33] In motor vehicle cases in Ontario, a plaintiff is able to make only a partial recovery of lost income before trial. Furthermore, delay will also increase the statutory deductible and, hence, reduce a plaintiff's net recovery of non-pecuniary damages. So it will often enure to the financial detriment of a plaintiff if a trial cannot proceed as scheduled.

[34] This case is no exception. The plaintiff will suffer prejudice as a result of any delay.

[35] Despite a suggestion by the defence to the contrary, I do not see this motion to strike the jury notice as opportunistic even though, but for the pandemic and the unavailability of civil jury trials at this time, such a motion would normally have little chance of being successful.

[36] Counsel are in agreement that, if necessary, the trial can be conducted in whole or in part by video conference if there is no jury.

[37] As Grace J. observed in Weaver, at para. 29, remote, judge-alone civil trials have occurred and are occurring. He continues, with comments that are equally applicable to Kingston:

from a scheduling perspective, the access of the civil bar to judicial resources has rarely, if ever been this good. However, with certainty I can say that it will not last. The moment the suspension of jury trials ends, the long line of criminal cases will push through the courthouse doors, long before the participants in civil matters are ever able to view them from afar.

[38] Taking into account all of the circumstances of this case and, in particularly, the competing interests of the parties, the relevant legal principles, the effective deployment of court and judicial resources and the impact of the public health pandemic on the administration of justice generally, both now and for the foreseeable future, I am satisfied that the appropriate remedy is to make an order conditionally striking the jury notice.

[39] What this means in practical terms is that provided this matter is called to trial on the June 2021 running list, the jury notice will be stuck out.

[40] In the event that, because of a lack of judicial or other resources, the court is not able to call the matter for trial during June 2021, the trial will be adjourned. The practice in Kingston is to provide parties with a fixed date for a trial that has been adjourned because of a lack of judicial resources. If, by the time the rescheduled trial commences, the court is able to offer a civil jury trial, the jury notice in this case would be deemed restored (without prejudice to the plaintiff moving to strike the jury notice in the ordinary course). But if, on the other hand, a jury trial cannot be offered (which could occur either because of a further prohibition on jury trials generally or because physical facilities to provide a jury trial are not available on the date when the case is called), the trial would proceed without a jury.

[41] By reason of the foregoing, and subject to the conditions which I have outlined, the jury notice is conditionally struck out.

[42] It is expected that the parties will be ready for trial if the case is called on for trial during the June 2021 sittings.

[43] Counsel have agreed that the successful party should recover costs of the motion fixed in the amount of $3,500 plus HST. As the plaintiff has substantially prevailed, the defendant is to pay the plaintiff costs in that amount.

Graeme Mew J.

Released: 31 May 2021

[^1]: Costigan v. Ruzicka, 1984 ABCA 234, [1984] 6 W.W.R. 1, at 11; 13 D.L.R. 94th) 368, at 377 (AB CA), per Laycraft J.A.