PETERBOROUGH COURT FILE NO.: CV-17-268
DATE: 20210719
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Heustis and Lance Heustis
Plaintiffs
– and –
Brenda Brown
Defendant
– and –
Intact Insurance Company
Defendant
Meghan Hull, for the Plaintiffs
Barry Marta, for the Defendant Brenda Brown
David S. Young, for the Defendant Intact Insurance Company
HEARD: June 15, 2021, via Zoom
REASONS FOR RULING ON MOTION
SPEYER J.
[1] On April 22, 2017, Robert Huestis was injured in a motor vehicle accident. His wife was killed. Robert Heustis and his son, Lance Huestis, have sued Brenda Brown and Intact Insurance Company for damages.
[2] Brenda Brown wants a jury trial and she delivered a jury notice on July 23, 2019.
[3] This matter is ready for trial, but a jury trial cannot occur now, and cannot occur for a very long time, because there is a large backlog of jury cases to be heard as a result of the pandemic.
[4] Robert Heustis and Lance Heustis move for an order striking the jury notice and for leave to bring that motion.
[5] I have concluded that leave to bring the motion should be granted, and that the jury notice should be struck, but if juries are being empanelled when this matter is called to trial, the defendant’s jury notice shall automatically be reinstated without the need for a further motion.
[6] The motion required me to decide two issues:
Under Rule 48.04(1), given that the action has been set down for trial, should the plaintiffs be given leave to bring this motion?
Under the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3), should the action be tried without a jury given the plaintiffs’ interest in a timely trial when that would deprive the defendant Brown of her right to a jury trial?
Issue 1: Should leave be granted under Rule 48.04(1)?
[7] Leave is required to bring a motion after an action has been set down for trial: Rules of Civil Procedure, Rule 48.04(1). This action was set down for trial on February 10, 2020.
[8] It is the position of counsel for the defendant Brown that the plaintiffs should be denied leave to bring this motion to strike their jury notice. Ms. Brown argues that there has not been a material change in circumstances and that it would not be just in the circumstances that leave be granted.
[9] Counsel for the defendant Intact consents to an order granting the plaintiffs leave to bring the motion.
[10] Two tests have developed for granting leave under Rule 48.04(1). One is that the moving party must show a substantial or unexpected change of circumstances since the action has been set down for trial. The second test is that leave may be granted if it is just in the circumstances of the particular case: BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, at paras. 12-14. I have considered both tests.
[11] There has been an enormous change in circumstances since this action was set down for trial the month before a state of emergency was declared to address the COVID-19 pandemic. The pandemic has impacted court operations in a manner and to an extent that was anticipated by nobody when this case was set down for trial. It has been impossible to conduct jury trials in the Central East Region since March 2020, with the exception of a few criminal trials. I reject the defendant Brown’s argument that there has not been material change in circumstances.
[12] The defendant Brown also argues that it would not be just to grant leave because during a judicial pre-trial conference it was suggested to the parties that a jury trial on the issue of liability might be possible in early 2021, and the plaintiffs rejected that option. We now have the advantage of hindsight and know that no such jury trial could have occurred because of the public health emergency. No jury trials have taken place in the Central East Region in 2021 until July, when a few criminal jury trials have commenced.
[13] There is no merit to the defendant Brown’s position that it would not be just to grant leave. Not only is it just, it is necessary in these unprecedented times for courts to re-assess case management of pending cases. Nothing is as it was. The interests of justice demand different approaches to case management now.
[14] Leave is granted to the plaintiffs pursuant to Rule 48.04 to initiate the present motion.
Issue 2: Should the plaintiffs’ interest in a timely trial override the defendant Brown’s right to a jury trial?
[15] The impact of the pandemic on the ability of this court to conduct jury trials has been, and continues to be, profound. There is a substantial backlog of jury trials waiting to be heard as jury trials resume, both criminal and civil. Only a small number of the jury courtrooms in the Central East Region have been modified to permit jury trials to be conducted in accordance with public health guidelines. Difficult decisions must be made. Criminal trials, where the constitutionally protected right to trial within a reasonable time must be protected, and where some defendants are in custody pending their trial, must proceed first.
[16] In the Central East Region, the Regional Senior Judge has advised that there is little chance that civil jury trials can be held until the latter half of 2022. On February 10, 2021, the Regional Senior Judge issued a Notice to the Profession – Central East Region – May 2021 Civil Sittings List (“Notice”), confirming that only non-jury matters would be heard during the Spring Civil Sittings. The Notice told litigants and members of the Bar that the court does not anticipate having the capability to conduct a civil jury trial until well into 2022. My recent inquiry of the Regional Senior Judge confirmed that the best information presently available, which is only a best estimate in this uncertain time, is that a civil jury trial in the Central East Region cannot be accommodated until the latter half of 2022. The parties in this case have been advised that the action can be placed on the running list for a judge alone trial, which is likely to be heard sooner.
[17] The substantive right to a civil jury trial is not absolute. It is qualified by the court’s power to order that the action proceed without a jury: Louis v. Poitras, 2021 ONCA 49, at para. 17; the Courts of Justice Act, R.S.O. 1990, Chap. C.43, s. 108(3).
[18] The plaintiffs bear 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, that merit the discharge of the jury”: Cowles v. Balac, 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 496, at para. 37; Kempf v. Nguyen, 2015 ONCA 114, at para. 43. The right to a jury trial in a civil case is a substantive right that should not be interfered with “without just cause or cogent reasons”: Cowles, at para. 36.
[19] The purpose of a civil trial is to provide justice between the parties. An action may be ordered to proceed without a jury when justice to the parties will be better served by a judge alone trial. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Cowles, at para. 28. This has been described as a “sensible test”: Louis, at para. 17.
[20] The right to a civil jury trial is also constrained by practical considerations and the interests of the administration of justice: Louis, at paras. 24-5; Girao v. Cunningham, 2020 ONCA 260, at para. 171.
[21] The accident in this case occurred over four years ago. There is no way to know when a jury trial can be accommodated.
[22] Delay in the hearing of a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice: Louis, at paras. 22, 44. The impact of the pandemic on court operations and the inability to conduct civil jury trials for an unacceptably long time warranted orders for judge alone trials in a number of recent decisions of this Court. These include: Belton v. Spencer, 2020 ONSC 5327; Higashi v. Chiarot, 2020 ONSC 5523; Louis v. Poitras, 2020 ONSC 5301, affirmed 2021 ONCA 49; Coban v. Declare, 2020 ONSC 5580, leave to appeal to Div.Ct. refused 2020 ONSC 7537; Passero v. Doornkempt, 2020 ONSC 6384; Desai v. Labelle, 2020 ONSC 6557; Francisco v. Li, 2021 ONSC 1032; Johnson v. Brielmayer, 2021 ONSC 1245; Cowley v. Skyjack Inc. et al., 2021 ONSC 1303; Barikara v. Kyei, 2021 ONSC 1636; Gagnier v. Burns, 2021 ONSC 1971; Hauck v. Thomas-Bedard, 2021 ONSC 3939, Walti v. Ellahi, 2021 ONSC 3941, and Deljanov v. Peel Condominium Corporation No 516 et al., 2021 ONSC 3915.
[23] The circumstances of this case present a compelling reason not to delay the trial. Robert Heustis was 79 years old at the time of the collision and he is now 83 years old. Given his age, it is important that his claim to damages be adjudicated as soon as possible. Delaying the trial will prejudice his access to justice.
[24] The defendant Brown has made an advance payment of $50,000 to Robert Heustis in order to ameliorate the effects of a delayed jury trial. However, this payment is not an adequate substitute for timely access to justice. The payment was provided on the condition that if the action is dismissed at trial, the money must be repaid to Ms. Brown. This does not provide Mr. Heustis with any finality as to his financial circumstances.
[25] The defendant Brown argues that she will be prejudiced if the jury notice is struck because her litigation strategy has been developed to advance her interests before a jury. That may be so, but I have been provided with no evidence as to how or why the strategy would be different in a judge alone trial, or that her strategy cannot be effectively adjusted for a judge alone trial.
Conclusion
[26] In this case, in the unprecedented circumstances that exist in this region, the plaintiff’s right to access to justice must override the defendant’s right to a trial by jury.
[27] It is not necessary that my order be absolute. I can conditionally strike the jury notice and order that it be reinstated if jury trials are available when the matter is called for trial. This approach strikes an appropriate balance between the right to an expeditious resolution and the right to a jury trial. If, when the matter is called, there are no civil jury trials running, the matter will be heard by a judge alone. If, however, civil jury trials are being conducted when the case is called to trial, the action will be tried before a jury. This is a flexible, region-specific approach to maintaining each party’s rights.
[28] It is ordered that the defendant’s jury notice is provisionally struck. However, if the case is called at a time when juries are being selected, the jury notice shall automatically be restored, and the action shall be tried by a jury.
[29] With respect to costs, if the parties are not able to agree, then counsel should contact the trial coordinator within 30 days to schedule a further virtual appearance before me. Concise briefs should be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.
Justice J. Speyer
Released: July 19, 2021
PETERBOROUGH COURT FILE NO.: CV-17-268
DATE: 20210719
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Heustis and Lance Heustis
Plaintiffs
– and –
Brenda Brown
Defendant
– and –
Intact Insurance Company
Defendant
REASONS FOR RULING ON MOTION
Justice J. Speyer
Released: July 19, 2021