COURT FILE NO.: CV-16-0180-000
DATE: 2021-07-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Darryl Russell, Stephanie Russell, Rebecca Russell, a Minor by her Litigation Guardian, Stephanie Russell, a Minor by her Litigation Guardian, Stephanie Russell, Larry Russell, Jacqueline Russell, Joanne Russell and Lynn Ann Russel
Plaintiffs
- and -
Michel-Paul Mainville, Marty Gardiner Trucking Ltd, and FedEx Ground Package System Ltd.
Defendants
Mr. B. Love, for the Plaintiffs
Mr. M. Wells, for the Defendant FedEx
HEARD: June 30, 2021, at Thunder Bay, Ontario via video conference
Mr. Justice W. D. Newton
Reasons Striking Jury Notice
Overview
[1] This is a motion brought by the plaintiffs to strike the jury notice in this action. Following argument, I made the following endorsement:
This is a motion by the plaintiff to strike the jury notice. Leave to bring the motion is not disputed.
For reasons to follow, the jury notice is struck. The parties are to arrange a continuation of the pretrial before Warkentin RSJ during the week of August 3, 2021 to schedule this case on the running lists of the Thunder Bay nonjury list. Although I have conducted some of the case management hearings, I am not seized.
Costs fixed as agreed payable to the plaintiff by FedEx in the amount of $2500 all-inclusive.
[2] These are my reasons.
Background
[3] This is a personal injury action arising out of a motor vehicle accident that occurred in April 2014. This matter had been scheduled for a jury trial which was to commence in November 2020. Covid intervened and the trial was postponed. The trial was scheduled before me and I conducted some trial management conferences. The parties have continued pre-trials before Regional Senior Justice Warkentin. The uncertainty as to when civil jury trials would resume in Thunder Bay has continued.
[4] As I advised counsel at the outset of this motion, as of June 29, 2021, I had been advised by Regional Senior Justice Warkentin that it was unlikely that civil juries would proceed here before the fall of 2022. I also informed counsel that there are eight civil non-jury running lists between now and November 2022 and that, based on my discussions with Regional Senior Justice Warkentin, there was a possibility that a non-jury trial could proceed in November 2021. Indeed, I have three weeks set in my schedule in November 2021 as held for trial work, but no specific matters have been set for those three weeks.
[5] Counsel advised that all heads of damage except health expenses and housekeeping and home maintenance have been settled. The plaintiff’s estimate to present their case at trial is six days and counsel for the defendant estimates total trial time at 10 days or less.
Position of the Parties
[6] Relying upon Louis v. Poitras[^1] and Doran v. Huls[^2] among other cases, the plaintiff argues that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”[^3] The plaintiffs notes that “waiting and seeing” to determine whether a jury trial will be available in the near future simply causes more delay.
[7] Counsel for FedEx argues that there is no harm in “waiting and seeing” because there is uncertainty as to when a civil nonjury trials could proceed and that, if there is only a delay of months between the date for a nonjury trial and a jury trial, then the jury notice should not be struck. Counsel for FedEx reminds me, as the Court of Appeal has noted, that “the court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons.”[^4] Counsel notes that circumstances with respect to Covid have changed and that circumstances are not “dire” as described in Doran or as uncertain as in Louis.
Analysis
[8] Leave is granted to bring this motion.
[9] I agree with counsel for the defendant that circumstances do not appear as “dire” but, if there is one thing that Covid has taught us, circumstances will remain uncertain for a while.
[10] What is known is that non-jury civil matters are very likely to proceed this fall and that civil jury matters are unlikely to proceed before the fall of 2022 in Thunder Bay. But for Covid, this trial would have proceeded last November. Keeping the jury notice will very likely result in a delay of two years from the initial trial date. I agree with counsel for the plaintiffs that “waiting and seeing” will only result in delay because it will not be known if the trial will proceed for at least another 15 months. On the other hand, placing this matter on a civil non-jury running list will result in a trial date possibly as early as this November and most certainly by early 2022.
[11] The plaintiffs are entitled to have this matter heard as soon as possible. As my colleague Fitzpatrick J. noted in Doran:
Justice delayed is Justice denied. The delay in this matter to me is patently prejudicial the jury notice is not struck.[^5]
[12] That quote applies equally to this case.
[13] The jury notice is struck. Costs as agreed are payable to the plaintiffs by FedEx in the amount of $2,500 all-inclusive. The parties are to attend before Regional Senior Justice Warkentin as directed to be placed on a civil nonjury running list.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: July 2, 2021
COURT FILE NO.: CV-16-0180-000
DATE: 2021-07-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Darryl Russell, Stephanie Russell, Rebecca Russell, a Minor by her Litigation Guardian, Stephanie Russell, a Minor by her Litigation Guardian, Stephanie Russell, Larry Russell, Jacqueline Russell, Joanne Russell and Lynn Ann Russel
Plaintiffs
- and -
Michel-Paul Mainville, Marty Gardiner Trucking Ltd, and FedEx Ground Package System Ltd.
Defendants
REASONS STRIKING JURY NOTICE
Newton J.
Released: July 2, 2021
/lvp
[^1]: 2021 ONCA 49. [^2]: 2021 ONSC 3291. [^3]: Louis, 2021 ONCA 49 at para. 22. [^4]: Louis at para. 17. [^5]: Doran at para. 28.