Court File and Parties
COURT FILE NO.: 1678/18 DATE: 20210901
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Elaine Da Silva, Plaintiff/Moving Party AND Ryan Scott and Nicole Flowers, Defendants/Responding Parties
BEFORE: Justice S. Nicholson
COUNSEL: M. Piekosz, for the Plaintiff (Moving Party) A. Brown, for the Defendants (Responding Parties)
HEARD: August 20, 2021
REASONS ON MOTION
NICHOLSON J.:
[1] The Plaintiff in this motor vehicle accident case has brought the now familiar motion to strike the Defendants’ jury notice as a result of the COVID-19 pandemic and the backlog of criminal, civil and family cases in the Southwest Region.
[2] The trial date in this matter is scheduled for January 10, 2022. The trial is projected to take three weeks.
[3] The legal principles have become well known to the personal injury bar. The right to a jury trial is a substantive right, but it is not absolute and must sometimes yield to practicality (Girao v. Cunningham, 2020 ONCA 260 (Ont.C.A.)). The aim of the civil justice system is to provide a means by which a dispute between parties can be resolved in the most just manner possible. In the end, a court must decide whether justice to the parties will be better served by the discharge of the jury (Cowles v. Balac, 2006 CarswellOnt 6366 (Ont.C.A.).
[4] In Louis v. Poitras, 2021 ONCA 49 (Ont.C.A.), Hourigan J.A. recognized that the civil justice system is currently facing an unprecedented crisis and judges have the discretion to find creative ways to ensure that parties have access to timely justice, depending upon the local conditions. In considering a request to strike a jury notice the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. Importantly, delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice to justify striking a jury notice (Louis v. Poitras, 2020 ONCA 815 (Ont.C.A.), per Brown J.A.).
[5] The recent trend in this region, as in other regions throughout Ontario, is for jury notices to be struck “conditionally” or “provisionally” so that if jury cases are being tried when the case is called for trial, it will proceed by jury, but if jury cases cannot be accommodated at that time, the jury notice is struck and the trial will proceed by judge alone. The Plaintiff has provided examples of cases in this region where this approach was taken. These include, in chronological order, Solanki v. Reilly, 2020 ONSC 8031, Weaver v. Clunas, 2021 ONSC 2364, Barnim v. Mitchell, 2021 ONSC 2914 and Hardy v. McAuslan, 2021 ONSC 4258. The Defendant added to this list by providing Purcell v. Van Pelt, 2021, ONSC 1266, a decision by McArthur J. who released a decision in Smith v. Muir, 2021 ONSC 1239, the same day. In both those cases, the juries were provisionally struck.
[6] Of note, these six decisions were authored by five of the eight full-time justices currently presiding in London, including Local Administrative Justice Grace (Weaver). These cases are a fair representation of the local judiciary’s approach to this problem, at least as of June 11, 2021, when Gorman J. released Hardy, the most recent of these cases.
[7] As was noted by Tranquilli J. (in Barnim) and McArthur J. (in Purcell), there was a brief window in the spring of 2021 when criminal trials were not crowding London’s docket permitting civil trials to proceed by judge alone.
[8] Parenthetically, despite the availability of judicial resources to conduct virtual non-jury civil trials at that time, of these cases it is my belief that only Solanki proceeded to an actual trial. Settlement of most of these cases greatly assisted the local administration of justice. In my view, this demonstrates the importance of getting cases to the trial door.
[9] Unfortunately, the window now appears closed. Due to the constitutionally mandated timeframes by which criminal matters must be concluded, judicial resources must be allocated to the criminal caseload. That work, and the sheer volume of family files, dictates that civil cases are unfortunately going to be relegated in favour of those areas.
[10] LAJ Grace has attempted to assist the civil bar by providing as much advance notice as possible in very unpredictable and fluid circumstances. This avoids unnecessary preparation and wasted expenditures. His Omnibus Endorsement dated August 10, 2021, the most recent pronouncement of the situation in London, reads as follows:
Endorsement Affecting All Civil Jury Trials Scheduled To Commence In London, Ontario During September, October, November And December 2021 And All Civil Non-Jury Trials Scheduled To Commence In London, Ontario During September And October 2021
Given the impact of COVID-19 on the operations of the Superior Court of Justice and the significant backlog of criminal and family cases, all civil jury trials scheduled to commence in London, Ontario during the months of September through December 2021 and all civil non-jury trials scheduled to commence in London, Ontario during the months of September and October 2021 are hereby adjourned to a special assignment court to be conducted by teleconference on Thursday, September 16, 2021 @ 9 a.m. At that time, new trial and potentially pre-trial dates will be set.
While it is exceedingly unlikely that the court will be able to conduct civil non-jury trials scheduled to commence in London, Ontario during the months of November and December 2021, for the time being, they remain on the running trial lists to which they have been assigned. [emphasis added]
Existing pre-trial dates are NOT affected by this endorsement. To be clear, civil pre-trials will continue to be heard as scheduled.
[11] Speculating about the future of the pandemic has proven unwise and unhelpful. Every time it appears that a corner is being rounded, a new variant has emerged and a further wave of cases has resulted. As the Defendants point out, Canada’s vaccination rate gives optimists reason to believe that the resumption of most activities, including jury trials, is within reach. Indeed, the hope is to conduct criminal jury trials in early September in London.
[12] However, the phrase in LAJ Grace’s Omnibus Endorsement that I emphasized, “exceedingly unlikely”, is an unmistakable caution that civil matters, whether jury or non-jury, will not be tried in November or December 2021.
[13] Based on the foregoing, I suggested to counsel that this motion be adjourned on consent to December, 2021, when there might be a clearer picture of what the situation will look like in early 2022, when the trial is scheduled to occur. I suspect that there is a reasonable chance that this motion may be mooted by London’s continued inability to hear civil trials, whether jury or non-jury, by January 10, 2022. Again, that is entirely unknown at this juncture. Nevertheless, counsel wished to proceed with the motion. I recognize that adjourning the motion is tantamount to adopting the “wait and see” approach.
[14] Counsel for the Defendants conceded that leave under rule 48.04(1) ought to be granted to hear this motion, as has been done in the COVID-19 related jury striking motions. I grant leave.
[15] The within action arises out of a motor vehicle accident that occurred on June 9, 2017. The Plaintiff, now 47 years old, alleges that she sustained musculo-ligamentous injuries to her left upper arm, forearm, thigh, leg and associated myofascial pain syndrome, concussion that developed into post-concussion syndrome, whiplash and anxiety and depression.
[16] The Plaintiff also alleges that she has sustained both a past and future income loss. She is working at present but takes the position that she is working modified hours and duties, with a reduction of about one third of her work hours. She also alleges that a promotion was delayed due to the accident. It is asserted that she has an ongoing annual loss of income, which will be compensated at 70% of gross to the extent that it is incurred prior to trial. Accordingly, the Plaintiff asserts prejudice results by any delay in the trial.
[17] The action has proceeded through the normal procedural steps without inordinate delay. Examinations for discovery were conducted on July 18, 2019. A trial record was served and filed by the Plaintiff on February 12, 2020. A pre-trial is scheduled for September 2, 2021 and the trial date is scheduled for January 10, 2022. Other than jeopardizing the current trial date, the pandemic and resulting backlog of cases has not resulted in any prior adjournments of the trial of this matter.
[18] The Plaintiff has appended expert reports that will be relied upon at trial. They are supportive of her claim. I will not comment further upon them and do not wish to be seen as weighing in on the merits of the claim. However, all the Plaintiff’s expert reports have been served and the parties appear ready for trial.
Arguments of the Plaintiff:
[19] The Plaintiff points to the inability of London to hold civil jury trials since the onset of COVID-19, which has now been extended through to the end of 2021. She further argues that other jurisdictions, including Windsor within the Southwest Region, have seen their LAJs express their skepticism that civil jury trials will be conducted until well into 2022. LAJ Grace has not formally done so. However, the affidavit in support of the Plaintiff’s motion asserts that at a Bench and Bar Event on June 24, 2021, LAJ Grace reiterated his comments from Weaver that civil juries will not be available in London until at least the second quarter of 2022.
[20] Unlike the prejudice that the Plaintiff asserts in relation to the erosion of her economic loss and the delay in resolving her claim, the Plaintiff argues that the Defendants have put forth no evidence of any prejudice if the jury notice is struck, or conditionally struck.
[21] While agreeing that her case has not been inordinately delayed, the Plaintiff urges me not to permit her case to “become” delayed when that can be prevented. Quoting Hryniak v. Mouldin, 2014 SCC 7, the Plaintiff argues that the courts ought not accept nor tolerate the delay inherent in our legal system.
Arguments of the Defendants:
[22] The Defendants distinguish this case from the facts in Solanki, a case that I decided in December of 2020 where I conditionally struck the defendant’s jury notice. In that case I indicated that each case must be determined on its own facts and listed certain factors that judges in prior cases appeared to consider in making their determinations.
[23] The Defendants argue that Mrs. Solanki’s age and health played a central role in my decision. That case had been prepared for trial several times and adjourned. The motion was also heard within a short time of the scheduled trial date, such that there was no uncertainty as to what the COVID-19 pandemic might look like as of that date.
[24] In contrast, the Plaintiff in the within action is 47 years old. The Defendants have provided her income tax returns which demonstrate that she continues to earn income, even if she alleges a wage loss. This case has not been previously adjourned. There are over four months between now and the date of trial.
[25] The Defendants emphasize that juries are well suited to resolve claims such as this one, quoting from Kempf v. Nguyen, 2015 ONCA 114, at para. 60, per Epstein J.A., as follows:
60 In addition to the wisdom of their collective life experiences, a jury would bring to this action, as juries always do, a reflection of societal values. As Binnie J. wrote for the majority in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.), at para. 136, “One of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities.” In my view, this is an appropriate proceeding for a jury to apply “a healthy measure of common sense”, as prescribed by Dickson C.J. in Corbett, at p. 692, in order to make findings of fact and determine liability for the accident.
[26] In the Defendants’ submission, the decisions striking juries, even provisionally or conditionally, represent inappropriate judicial legislating. If juries are to be removed from the civil decision-making process, it is argued that the legislature, not judges, should take that step.
My Decision:
[27] I agree with many of the Defendants’ counsel’s comments. His defence of the role of the jury in civil litigation was compelling. There is no question that civil juries are an important part of our legal fabric and the reasons for some litigants preferring to have juries determine their disputes is understandable.
[28] However, in the face of COVID-19, legislative guidance on what should happen with jury trials did not come and does not appear on its way. Judges were confronted with delays caused by this once in a lifetime pandemic and the threat of civil jury trials, in an already heavily taxed system, continuing to pile up with no clear end in sight. In Louis v. Poitras, supra, Hourigan J.A. for the Court of Appeal, wisely endorsed judicial activism to steer the administration of justice through what must be viewed as a crisis. I quote Hourigan J.A. at length:
1 The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.
Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court’s injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices.
There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.
[29] I also agree with counsel for the Defendants that this case is not factually comparable to Solanki. It is also not Ismail v. Fleming, 2021 ONSC, another local case in which Tranquilli J. struck the jury so that the trial could proceed this past spring, where there had been multiple adjournments and a mistrial following several weeks of trial.
[30] However, cases from around the province demonstrate that subsequent to the Solanki decision, judges have granted motions to strike juries in the absence of many of the factors that I listed therein. Since the Louis v. Poitras decision, judges have often focused on the timely administration of justice and finding a way to address the civil docket in the face of the priority given to criminal and family matters.
[31] A number of decisions have accepted that the erosion of a plaintiff’s claim for damages for economic losses causes a non-compensable and non-recoverable loss that is prejudicial to the plaintiff (for example, Tomson v. Jackson, 2021 ONSC 3422).
[32] I am most attracted to the argument that the court should not allow the Plaintiff’s case to “become” old. If the jury notice remains in place such that the trial is adjourned and delayed into late 2022 or beyond, then a case that was on track to be determined in a relatively timely fashion, becomes stale. This negatively impacts the other civil cases in the system as well, as civil cases accumulate.
[33] Accordingly, I prefer to ground my decision on the principle that a court may look beyond the parties’ interests and consider the broader interests of the administration of justice (as per Hourigan J.A. in Louis v. Poitras, para. 25). To the extent that another window of opportunity to hear civil matters presents itself in London, it must be taken advantage of so that the pile-up of civil cases does not grow past the point of being manageable. Provisionally striking the jury notice, albeit imperfectly, attempts to address that problem.
[34] I recognize that the trial date is over four months away. When I decided to employ the “wait and see” approach in Smith v. Muir, 2020 ONSC 8030, the trial date was a similar amount of time into the future. In that case I expressed optimism that we would have clarity on an end date for the pandemic as the trial date approached. That optimism proved unfounded. Ultimately, my colleague, McArthur J. did strike the jury in that case. That case settled and the queue was shortened.
[35] Redeploying the “wait and see” approach as urged by the Defendants in this case is unhelpful in avoiding the pile-up of cases, and multiple motions to strike jury notices within the same action. More importantly, if the jury notice is left in place in this case, it is more likely that the case will be administratively adjourned by a future Omnibus Endorsement issued by LAJ Grace. As demonstrated by his August 10, 2021 Omnibus Endorsement, it can fairly be anticipated that a civil jury trial will be administratively adjourned before a non-jury civil trial.
[36] That, in and of itself, may pose a problem to local conditions. Should another window of opportunity present itself where civil jury trials cannot proceed, but civil non-jury trials could proceed, there must be cases ready to fill that void and take advantage of the judicial resources available. Quite simply, if all the civil jury cases have been administratively adjourned, an opportunity may be wasted.
[37] Civil litigants have been asked to make great sacrifice in these unprecedented times, plaintiffs and defendants alike. In personal injury cases such as this, plaintiffs, who typically do not have the financial resources to withstand years of litigation, have endured unavoidable delays in having their cases resolved. Defendants have been required to forego their preferred mode of trial to allow these cases to proceed when they can be accommodated.
[38] The significant imposition on the parties in civil cases is not lost on the judiciary.
[39] For the foregoing reasons, I order as follows:
(1) The Defendants’ jury notice is provisionally struck such that this case shall be considered a “non-jury” case for the purposes of any future Omnibus Endorsements from LAJ Grace. However, any administrative adjournment of non-jury cases that affects this case shall automatically result in the reinstatement of the jury notice. Assuming the Omnibus Endorsement returns the case to assignment court, it shall be treated there as a jury case.
(2) If the matter has not been administratively adjourned, the trial of this action shall proceed by a judge alone unless civil jury trials can be accommodated as of the date the trial coordinator calls the matter in.
(3) In the event civil jury trials can be accommodated when this case is called to trial, the jury notice shall be automatically reinstated without the need for a further motion by the Defendants. This is without prejudice to the Plaintiff’s right to bring a further motion to strike the reinstated jury notice.
[40] For clarity, the term “can be accommodated” means that London is conducting civil jury trials as of the date of trial. If civil jury trials have resumed, but this matter cannot be reached due to the number of civil jury trials on the list, or some other reason, the jury notice is still reinstated.
[41] This order marginally increases the chance that the parties can maintain the trial date in January 2022. Additionally, if the London courthouse is capable of conducting civil jury trials at that time, the Defendants will have their important substantive right to a jury restored without the expense of bringing a further motion.
[42] I echo the comments of LAJ Grace in Weaver. But for the current impact of COVID-19 on the conduct of civil jury trials in Ontario, and more particularly London, this motion would not have succeeded.
[43] I am hopeful that the parties can reach agreement on the issues of costs. They should consider the substantial possibility that this decision is rendered moot by the inability of the London court to hear any civil matters, jury or non-jury, in early 2022. However, if necessary, written submission of two pages or less, double spaced, may be delivered by the Plaintiff no later than September 17, 2021 by 4:30 pm and by the Defendants no later than September 27, 2021 by 4:30 pm.
Justice Spencer Nicholson
Date: September 1, 2021