COURT FILE NO.: CV-14-335-00

DATE: 20210722

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Billy-Jo Hollywood, Kenneth Hollywood, William Hollywood, Nathan Hollywood, and Jacob Hollywood, a minor by his Litigation Guardian, Billy-Jo Hollywood, Plaintiffs

AND:

Anna Khan, Defendant

BEFORE: Mr. Justice Mew

COUNSEL: Joseph Falconeri and Leigh Harrison, for the Plaintiffs

Todd J. McCarthy and Laura Bassett, for the Defendant

HEARD: 14 July 2021, at Kingston (by videoconference)

ENDORSEMENT

(Plaintiffs’ motion to strike jury notice and Defendant’s motion to adjourn trial)

[1] This action involves a claim for damages for personal injuries sustained by the plaintiffs Billy-Jo Hollywood, Kenneth Hollywood and Jacob Hollywood, who were all occupants of a motor vehicle that was struck by another vehicle operated by the defendant Anna Khan. The incident occurred on 3 August 2012 on Highway 2 in Napanee.

[2] The trial is scheduled to commence on Tuesday, 7 September 2021 in Kingston. The defendant has filed a jury notice. The trial is expected to last between five to six weeks.

[3] This endorsement deals with two motions, brought by the plaintiffs and by the defendant respectively.

[4] The plaintiffs seek an order striking out the jury notice. Their motion is primarily motivated by their concern that the court will not be able to offer a jury trial in September 2021 with the consequence that the trial would have to be adjourned to a time when a jury trial could be offered.

[5] The defendant seeks an order for the trial together of this action and of another action, bearing Court File No. CV-20-201, which involves a claim for personal injury damages sustained by Billy-Jo Hollywood in a further motor vehicle accident that took place on 27 July 2018. Because that action is still at the discovery stage, the defendant seeks an adjournment of the pending trial in this action, so that the 2020 action can get up to speed and the cases can be heard together.

[6] After reviewing the written materials filed by the parties and hearing the arguments of counsel, I ordered that the jury notice should be conditionally struck out and dismissed the defendant’s motion to have the trial adjourned. I advised the parties that I would provide written reasons for my decision in due course. These are my reasons.

Motion to Strike Jury Notice

[7] As Hourigan J.A. observed in Louis v. Poitras, 2021 ONCA 49, at para. 3, “local conditions will necessarily impact the choice of effective solutions” to the challenge of organising jury trials under current public health restrictions.

[8] In Kingston, there is currently only one courtroom which is appropriately equipped for jury trials (civil or criminal). Where both civil and criminal jury trials have been scheduled to take place in the courthouse at the same time, priority will be given to the criminal matters.

[9] There is currently a two-week criminal jury trial scheduled to commence in Kingston on 13 September 2021. If that case goes ahead as a jury matter, it will not be possible to also have a civil jury hearing this case in another courtroom at the same time.

[10] Many of the same considerations as were discussed in Hauck v. Thomas-Bedard, 2021 ONSC 3939, apply equally to the present case. Indeed, the prejudice that would result to the plaintiffs if the case cannot go ahead as scheduled would, if anything, be greater in this case than in Hauck. Over nine years will have elapsed since the accident and it is unlikely that if rescheduled (setting aside any issue relating to the possible trial together with the action arising from Ms. Hollywood’s 2018 accident), the trial would likely not take place until the second half of 2022 or even into 2023.

[11] For similar considerations to those articulated in Hauck, Mohan v. Howard, 2021 ONSC 2064 and Weaver v. Clunas, 2021 ONSC 2364, I am satisfied that the appropriate disposition is to make an order conditionally striking the 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 the court is able to provide a civil jury trial can when the case is called.

Motion to Adjourn

[12] Billy-Jo Hollywood was a passenger in a vehicle operated by Jennifer Kehoe, which was involved in a motor vehicle accident on 27 July 2018 with another vehicle, operated by Elizabeth Lake.

[13] Ms. Hollywood has sued Ms. Kehoe and Ms. Lake for negligence in Court File No. CV-20-201, claiming damages for personal injuries as a result. I was informed by counsel that there is also an action brought by Ms. Kehoe against Ms. Lake and against one or more construction companies in relation to the same accident. Although counsel for the defendants in the Hollywood v. Kehoe action are agreeable to that accident being tried with the present action, the position of counsel acting for Kehoe as a plaintiff and for the construction companies in the Kehoe v. Lake action is unknown.

[14] What is known is that examinations for discovery in the 2020 action have not yet been completed. There is every reason to believe that it will take years rather than months for the 2020 action and the Kehoe v. Lake action to be brought up to speed.

[15] Furthermore, the party in the present action with the most significant claim is Kenneth Hollywood. The plaintiffs argue that it would be particularly unfair to him to have to delay the trial of this action until the other actions related to his wife’s personal injury claim arising from the 2018 accident can get up to speed with it.

[16] The principal reason for wanting the trial of the actions together is, of course, because of the difficulties in delineating what injuries and, hence, what damages were caused by the 2012 and 2018 accidents respectively. The defendant argues that the actions in which Ms. Hollywood is a plaintiff should be tried together, or one immediately after the other, to avoid unnecessary expense, complexity, a multiplicity of proceedings and the possibility of inconsistent verdicts.

[17] While it would certainly be preferable, looking at the claims of Billy-Jo Hollywood in isolation, to have her claims for damages arising from both accidents considered together, a number of factors militate against doing so.

[18] In the first place, some nine years have already elapsed since the 2012 accident. If this case is adjourned so that the other matters can be brought up to speed, it is highly likely that it will be ten or eleven years, or perhaps even longer after the 2012 accident before the cases are heard. That sort of delay, in and of itself, is a sufficient basis to decline to make the order sought. This is particularly so in respect of Kenneth Hollywood’s claim.

[19] If one then factors in the current status of this action, the prejudicial consequences of further delay become even more apparent. The parties are, essentially, ready for trial now. If there is a delay of two to three years, expert reports will have to be updated and refreshed, other witnesses may become unavailable and additional expense will inevitably be incurred.

[20] While the task of delineating the injuries suffered by Billy-Jo Hollywood, and the damages (if any) which flow from each of the actions, could more conveniently be undertaken if all claims were heard together, there is no reason in principle why the defendant in this action cannot adduce evidence to show that the damages claimed by Ms. Hollywood were not caused by the defendant’s negligence. Of course, it will be up to the trial judge to make all appropriate evidentiary rulings in that regard, but I see no fundamental unfairness to the defendant arising from my determination that the trial of this action should proceed alone.

Costs

[21] I did not ask the parties to provide their positions on costs. As these motions were heard concurrently with a settlement conference, and given the provisional nature of my ruling on the jury issue, my inclination would be that each party should bear its own costs of the motions. However, if counsel are of a contrary view, they can raise the matter with me at the next settlement conference, presently scheduled to take place on 19 August 2021.

Graeme Mew J.

Date: 22 July 2021