COURT FILE NO.: CV-07-009756-CM00
DATE: 20210624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Edward Randall Vogler
Plaintiff/Moving Party
– and –
Allstate Insurance Company of Canada
and Tom Lemieux
Defendants/Responding Parties
– and –
Allstate Insurance Company of Canada, Statutory Third Party added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990 c.I.8 as am,
Statutory Third Party
Jame Pedro, for the Plaintiff/Moving Party
R. Shawn Stringer, for the Defendant/Responding Party, Allstate Insurance Company of Canada
R. Shawn Stringer, for the Statutory Third Party
HEARD: June 8, 2021
THIS MOTION WAS HEARD BY ZOOM, PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
RULING ON MOTION TO STRIKE JURY NOTICE
CARROCCIA J.
[1] The plaintiff brings a motion seeking an order to strike the jury notice of the defendant, Allstate Insurance Company of Canada (“Allstate”), on the grounds that there will be a substantial delay before the trial can proceed with a jury due to the ongoing COVID-19 pandemic and that it can proceed sooner as a judge alone trial. The plaintiff requires leave to bring this motion, but the issue of leave was not seriously challenged by Allstate and will be addressed below.
[2] Allstate opposes the motion and takes the position that it is premature to strike the jury notice at this time and urges the court to adopt a “wait and see” approach as other courts have.
Background
[3] The history of this matter is somewhat complicated, but not contentious, so I will set it out in some detail. The action arises out of a single vehicle motor vehicle accident that occurred on February 18, 2006.
[4] The plaintiff, Randy Vogler (“Vogler”) was located in the passenger seat of his pickup truck following a single vehicle accident where the operator of the vehicle lost control of it, proceeded through an intersection, across a ditch and ultimately struck a tree. At the time that the vehicle was located, no one was in the driver’s seat. The plaintiff was intoxicated and was ultimately charged with Impaired Driving and Exceeding the Breathalyzer as a result of the accident. He also suffered injuries including a severe closed head injury and remains unable to work.[^1]
[5] This action was commenced on August 31, 2007. At that time, the defendant was Allstate which was sued under the unidentified motorist coverage pursuant to the motor vehicle liability policy issued to Vogler who was the owner of the pickup truck.
[6] Around May 3, 2008, Tom Lemieux (“Lemieux”) came forward to claim that he had been driving the vehicle at the time of the accident.
[7] As a result, the statement of claim was amended by order of Patterson J., on July 8, 2008, to delete Allstate as a defendant and to add Lemieux as a defendant.
[8] On November 18, 2008, by order of Little J., Allstate was added as a Statutory Third Party to this action, pursuant to a motion brought by Allstate, rather than defend Lemieux. Allstate took the position that Vogler was operating the vehicle at the time of the accident and, in any event, Lemieux was not properly licenced to drive.
[9] Allstate delivered a statement of defence as a Statutory Third Party and jury notice on December 1, 2008.
[10] At Vogler’s criminal trial before Quinn J. in the Superior Court of Justice at Windsor, conducted on April 27 and 28, 2009, the only issue for trial was the identity of the driver of the pickup truck at the time of the accident on February 18, 2006. Lemieux testified at the trial that he was driving the vehicle immediately before the accident but jumped out of the vehicle while it was still moving after Vogler, who was very intoxicated, threatened to hit him.[^2] Vogler was acquitted of both charges.
[11] An examination for discovery was conducted with Vogler on October 21, 2009, however Lemieux, who was served with a notice of examination failed to attend. A mediation session was conducted on May 26, 2010, but did not result in a resolution.
[12] On September 16, 2010, Master Pope presided over a preliminary pretrial conference.
[13] Lemieux was noted in default on December 13, 2010.
[14] The matter then took a turn which saw it proceed to the Ontario Court of Appeal and back again. Former counsel for the plaintiff sought leave to amend the statement of claim to add Allstate back into the action as a defendant so that they could claim under the OPCF 44R Family Protection Change Form attached to the policy. This motion was opposed by Allstate and it was argued before Master Pope on October 24, 2011.
[15] In her decision, released on March 15, 2012, Master Pope dismissed the motion. An appeal of the decision was heard by Leach J., sitting as a single judge of the Divisional Court, on November 2, 2012. On July 8, 2013, Leach J. released his decision and dismissed the appeal. An appeal of that decision was filed in the Ontario Court of Appeal.
[16] While that was going on, as a result of Lemieux’s earlier failure to attend to be examined for discovery, the plaintiff obtained an order requiring Lemieux to attend to be examined on August 22, 2013. He did not attend, and a bench warrant was issued for his arrest. Ultimately, he was arrested on the warrant, released and appeared to be examined.
[17] The appeal of the decision of Leach J. was heard by the Ontario Court of Appeal on November 13, 2014. The appeal was allowed and granted the plaintiff leave to amend the amended statement of claim.
[18] Counsel for Allstate was then served with the amended amended statement of claim by service on their counsel on March 4, 2015. Allstate served a statement of defence and crossclaim to the amended amended statement of claim on March 22, 2017, and a jury notice on March 27, 2017.
[19] The plaintiff’s trial record was served on October 28, 2015, prior to the service and filing of the statement of defence and crossclaim following the decision of the Ontario Court of Appeal.
[20] Several dates for pretrial conferences were arranged and subsequently adjourned. On January 25, 2021, a pretrial conference was conducted by Pomerance J., which was not concluded pending the outcome of this motion.
[21] Liability and damages are in issue. Allstate disputes that it was Lemieux who was operating the vehicle at the time of the accident. Additionally, it is anticipated that conflicting medical opinion evidence will be called at trial as well as complex engineering reconstruction evidence.
[22] This claim is ready for trial, but no trial date has yet been set. Counsel estimate that a trial with a jury would take at least three to four weeks.
Leave to Bring the Motion
[23] Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires leave to bring a motion once an action has been set down for trial:
Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
[24] Allstate did not oppose granting leave in this case in keeping with a growing body of case law which has considered that the current COVID-19 pandemic is a substantial and unexpected change in circumstance which has occurred since the matter was set down for trial and would justify granting leave.[^3] Accordingly, leave is granted.
The Position of the Parties
i) The Plaintiff
[25] The plaintiff argues that this is one of the oldest cases in the system. The accident which is the subject matter of this claim occurred on February 18, 2006, over 15 years ago. It was set down for trial on October 28, 2015 and no trial date has yet been scheduled.
[26] The plaintiff has filed, as an attachment to the affidavit of A. Rachlin, sworn June 7, 2021, a copy of the “Endorsement affecting all Civil Jury Trials scheduled to commence in Windsor, Ontario between March 2020 and December 2021” issued by Local Administrative Justice R. Pomerance on January 21, 2021. It states in part:
Given the uncertainties flowing from the pandemic, and the backlog of cases waiting to be heard, it is realistic to expect that civil jury trials will not be reached for hearing in the Windsor Superior Court of Justice until 2022.
[27] This trial, however, if it were to proceed to a jury trial, could not be scheduled until early 2024, according to an e-mail exchange between counsel for the plaintiff and the local Trial Coordinator which was attached as an exhibit to the same affidavit. If the jury notice is struck and the matter proceeds as a judge alone trial, either virtually or in person, it could be added to a running list in November or December 2021.
[28] The plaintiff does not point to any particular evidence of prejudice, other than the lengthy delay in obtaining a jury trial. The plaintiff maintains that justice to the litigants will be better served with a non-jury trial.
ii) The Defendant
[29] Allstate takes the position that the right to a jury trial is a substantive one and that there is no just cause or compelling reason in this case to deprive the defendant of that right. Allstate relies on the fact that the provincial government has recently ended the stay-at-home order that was in effect for the last several months and has released a “Roadmap to Reopen” with a gradual resumption of social activities including indoor activities. Things are improving with respect to the pandemic.
[30] Allstate advocates a “wait and see” approach and indicates that it is premature to strike the jury notice at this time. No trial date has yet been scheduled. It may well be that a jury trial can be accommodated earlier than anticipated.
[31] In the alternative, the defendant suggests that it is open to the court to “conditionally” strike the jury notice, or to adjourn this motion to a later date to see whether conditions improve.
[32] The defendant emphasizes the importance of a jury trial and urges the court not to deprive the defendant of that right in these circumstances.
The Legal Principles
[33] In Cowles v. Balac, 2006 CanLII 34916 (ONCA), the Ontario Court of Appeal set out a number of basic principles to be considered when a motion to strike a jury is brought, namely:
The right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36).
A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury (at para. 37).
A court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).
The object of a civil trial is to provide justice between the parties, nothing more (at para. 38).
Neither party should have an unfettered right to determine the mode of trial (at para. 38).
Obviously, there is merit to taking a “wait and see” approach in some cases, and perhaps in most. However, taking such an approach is not a rule of law. The Courts of Justice Act and the rules contemplate that a judge may strike a jury notice even before a trial has begun and that a trial judge may dismiss a jury before beginning to hear the evidence (at para. 71).
The fact that a jury trial might last for a lengthy period of time is not, in itself, a reason to strike a jury notice or dismiss a jury. However, the length of a trial may be one indicator of the complexity of a case (at para. 81).
Cases such as these come down to weighing the right of the litigant to a jury trial against a determination that justice to the parties will be better served by striking the jury notice (at para. 91).
[34] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 1, the Supreme Court of Canada, reminds us that:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today… Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication in civil cases, the development of the common law is stunted.
[35] The Court goes on to consider that protracted trials with unnecessary expense and delay can prevent the fair and just resolution of disputes (at para. 24). The Court calls for a “shift in culture” towards an accessible, proportionate, timely and affordable process for the adjudication of disputes.
[36] More importantly, the Court calls for a culture shift which “requires judges to actively manage the legal process in line with the principle of proportionality.”[^4]
[37] The impact of the COVID-19 pandemic on the management of civil trials in the province of Ontario was considered in the recent decision by the Ontario Court of Appeal in Louis v. Poitras, 2021 ONCA 49.
[38] In that case, the Court says that while a court should not interfere with the right to a jury trial without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial.[^5]
[39] The Court considered that local judges are “best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case.”[^6]
[40] Furthermore, in Louis v. Poitras, the Court recognized that delay alone is sufficient grounds to justify striking a jury notice:[^7]
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 of 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'être 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, 2020 ONCA 815(Ont. C.A.), at para. 33.
[41] Counsel for both parties have referred the court to a number of cases decided during the pandemic that have considered motions to strike jury notices.
[42] In the following cases, among others, jury notices were struck:
• On September 1, 2020, Roger J. struck a jury notice in Ottawa, ON in Higashi v. Chiarot, 2020 ONSC 5523. The parties were ready for trial and it was unknown when a jury trial might be heard;
• On September 4, 2020, Sheard J. in Belton v. Spencer, 2020 ONSC 5327, struck the defendant’s jury notice in circumstances where there would likely be a delay of one year or longer to have a jury trial in a case that was already 10 years old.
• On September 21, 2020, Sheard J. struck a jury notice in Passero v. Doornkempt, 2020 ONSC 6384, in St. Catharines, ON. In that case the trial had been adjourned previously and the matter was nine years old. The plaintiff indicated that the delay of the trial was difficult for him emotionally, psychologically and financially.
[43] However, jury notices were not struck in all cases. There have been a number of recent cases where jury notices have not been struck.
• On September 20, 2020, in Jiang v. Toronto Transit Commission, 2020 ONSC 5727, D. Wilson J. declined to strike a jury notice in Toronto because jury trials were being conducted at that time and there was no urgency to the motion .
• On October 29, 2020, in MacDougall v. Sisley, 2020 ONSC 6632, McKelvey J. decided it was appropriate to adopt a “wait and see approach” to determine whether jury trials would be available in the new year (2021) in Barrie, ON.
[44] By adopting the “wait and see” approach, some judges have attempted to find a middle ground in determining what constitutes justice for the parties. For instance, in Solanki v. Reilly, 2020 ONSC 8031 Nicholson J. determined that the plaintiff’s circumstances justified proceeding “without a jury if it will expedite the trial”.[^8] It was believed, at the time of the decision, that the matter could proceed to a judge alone trial in February 2021.
[45] As a result, Nicholson J. “conditionally” struck the jury notice so that the trial would proceed as a judge alone trial, unless London was conducting jury trials when the case was called to trial. If the judge alone trial could not be conducted, the defendant’s jury notice would be automatically reinstated without prejudice to the plaintiff’s right to bring a further motion to strike the “revived” jury notice.
[46] In Smith v. Muir, 2020 ONSC 8030, another decision of Nicholson J. relied upon by the defendant, the court determined that it was appropriate, in all of the circumstances of that case, not to strike the jury notice. Nicholson J. adopted a “wait and see” approach since the matter was then scheduled for a jury trial to commence on March 29, 2021. The decision was without prejudice to the plaintiff to renew the motion if the trial could not be conducted as scheduled.
Local conditions
[47] A consideration of “local conditions” is appropriate and an important factor to take into account when determining whether justice to the parties will be better served by striking a jury notice.
[48] Due to the unprecedented situation we currently face as a result of the COVID-19 pandemic, trials of civil cases have been delayed while courts prioritize criminal and family cases as a result of the reduced availability of courtrooms and the inability to conduct trials in person.
[49] Regional Senior Justice Thomas considered local Windsor conditions in his recent decision in Gagnier v. Burns, 2021 ONSC 1971. He succinctly describes the situation locally as follows, at paras. 39-40:[^9]
The Windsor Courthouse has refitted its courtrooms as a result of the pandemic. However, social distancing dictates that the Courthouse has a public seating capacity of 78. It has only six courtrooms with a capacity over 15, inclusive of staff. Four of those six courtrooms have maximum capacity of 16-18. Only two courtrooms can accommodate a jury of 12. No jury deliberation rooms can accommodate 12 distanced jurors and so one of the courtrooms must serve as a deliberation room for a criminal trial. It is reasonable to conclude that between jury selection, deliberation and trial, a single criminal jury trial will consume three courtrooms. This indisputable scenario drove Pomerance J. to direct that civil jury trials could not be heard in Windsor until 2022.
In Windsor there are 11 criminal jury matters awaiting trial. Of those trials, three are homicides. The total estimated trial time is 30 weeks. It is at this point reasonable to presume, based on the “red zone” status of Windsor, that jury trials in Windsor will not commence before late summer, but more likely in September, 2021. Local conditions will be monitored by the Court. No juries will be assembled until the safety of the public is assured.
[50] Thomas R.S.J.’s decision was released before the most recent Civil Assignment Court was held which resulted in a number of civil jury trials being scheduled into 2022 and 2023. As the Trial Coordinator indicates in her email to counsel for the plaintiff, this trial would not be held with a jury until 2024.
[51] None of the pending criminal jury trials referred to by Thomas R.S.J. have yet been tried.
[52] The defendant has provided the court with evidence which includes a recent news release from the provincial government which indicates that as of June 6, 2021, 72 percent of the population in Ontario of individuals over the age of 18 years has received at least one dose of a COVID-19 vaccination resulting in an accelerated re-opening of the province.
[53] Since this motion was argued, on June 18, 2021, the Office of the Chief Justice of the Superior Court has released a Notice to the Profession and Public Regarding Court Proceedings which indicates that the Ontario Superior Court of Justice will increase the number of in-person non-jury hearings commencing June 21, 2021 and that some locations may resume jury selection and jury trials commencing July, August or September subject to the discretion of the Regional Senior Justice and the regional and provincial public health situation.
Analysis
[54] I do not take lightly the decision to take away the defendant’s right to a jury trial. I recognize that a party has a right to conduct a trial as they see fit. However, I recognize as well that neither party has the absolute right to determine the mode of trial.
[55] I must determine whether the plaintiff has shown that justice to the parties, not just justice to the plaintiff, will be better served by the discharge of the jury.
[56] A timely and just resolution of a matter is equally important in the civil context as it is in the criminal or family context. This is an unusual fact situation that involves some degree of complexity, although the issue of complexity was not the focus of the argument before me.
[57] It is clear that as more people are vaccinated within the province, courts are moving towards conducting more in person trials, including jury trials. However, without question, there will be a backlog of cases waiting to be heard, some of which have already been scheduled far into the future. Criminal trials and family trials are being prioritized over civil cases.
[58] This matter, despite being over 15 years old, has not yet been scheduled for trial. It is clear, that given the disparity between the parties’ positions, it is not likely to resolve and will require a trial.
[59] The defendant urges this court to consider the fact that no trial has yet been scheduled as a significant difference between this case and those cases relied upon by the plaintiff. In my view, there is no requirement that a trial date be set and cancelled before a motion to strike can be considered. Judges have an obligation to ensure that litigants have access to justice. We must find ways to fulfill that obligation even in our current circumstances.
[60] If we are to take seriously the admonition of the Supreme Court of Canada in Hryniak v. Mauldin to strive to create an environment that promotes proportionate, timely and affordable access to the civil justice system, then in my view, we cannot simply “wait and see” whether this matter can be accommodated sooner than three years from now, when we know that a judge alone trial can be conducted in approximately six months.
[61] In the circumstances of this case, adopting a “wait and see” approach is the equivalent of adopting an attitude of complacency that will result in this matter being subject to further delay, and potentially remaining outstanding for 18 years before it reaches a trial with a jury. That is unacceptable. It is in the parties’ interests and in the interests of the administration of justice to bring this matter to a conclusion.
[62] The Court of Appeal in Louis v. Poitras recognizes that a delay in obtaining a date for a civil jury trial can constitute prejudice and justify striking out a jury notice.[^10]
Conclusion
[63] In the circumstances of this case, justice to the parties will be best served by striking the jury notice and allowing the matter to proceed to trial before a judge alone.
[64] Accordingly, the motion is granted, and the jury notice is struck. Upon the expiration of 30 days from the date that this decision is released, to allow for any potential appeal of this decision, the parties will schedule a further pretrial conference in accordance with the endorsement of Pomerance J. dated January 25, 2021 (since the pretrial has not yet been completed) in order to set this matter for trial as soon as possible.
[65] The issue of costs can be addressed in writing. Accordingly, if the parties do not reach an agreement as to costs, then the plaintiff’s written submissions, consisting of no more than five pages in length, exclusive of the bill of costs, are to be filed within 30 days of the date of the release of this decision. The defendant’s submissions to be filed within 15 days thereafter. No reply is necessary.
Original signed by Justice Maria V. Carroccia
Maria V. Carroccia
Justice
Released: June 24, 2021
COURT FILE NO.: CV-07-009756-CM00
DATE: 20210624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Edward Randall Vogler
Plaintiff/Moving Party
– and –
Allstate Insurance Company of Canada
and Tom Lemieux
Defendants/Responding Parties
– and –
Allstate Insurance Company of Canada, Statutory Third Party added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990 c.I.8 as am,
Statutory Third Party
Ruling on motion to strike jury notice
Carroccia J.
Released: June 24, 2021
[^1]: Motion Record of the Plaintiff, Affidavit of Alan L. Rachlin, Pretrial Memorandum, Exhibit L [^2]: Reasons for Judgment Quinn J., May 8, 2009, at para. 12 [^3]: Kranjec v. Green, 2020 ONSC 6910; Gagnier v. Burns, 2021 ONSC 1971 [^4]: Hryniak v. Mauldin, at para. 32 [^5]: Louis v. Poitras, at para. 17 [^6]: Louis v. Poitras, at para. 26 [^7]: Louis v. Poitras, at para. 22 [^8]: Solanki v. Reilly, at para. 43 [^9]: Gagnier v. Burns, 2021 ONSC 1971, at paras. 39-40 [^10]: Louis v. Poitras, supra, at para. 22