COURT FILE NO.: CV-17-24723
DATE: 20210929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cynthia Turner and Raymond Turner
Plaintiffs
– and –
Mihaljo Stojanovic, Monyke Halabi, Cindy Smitjes, and Stefan N. Adjetey and
State Farm Insurance Company and Certas Home and Auto Insurance Company
Defendants
Alicia L. Tymec and E. Wunder, Counsel for the Plaintiffs
K. Bailey, on behalf of E.M. Key, Counsel for Mihaljo Stojanovic
L. A. Wiseman, Counsel for Monyke Halabi and Cindy Smitjes – not present
A. Fujioka, on behalf of Chris E. Beckett, Counsel for Stefan N. Adjetey
V. Little, on behalf of R. Weisser, Counsel for State Farm Insurance Company and Certas Home and Auto Insurance Company
HEARD: August 31, 2021
RULING ON MOTION
Dubé J.
A. INTRODUCTION
[1] To avoid further delay, the plaintiffs brought a motion for an order provisionally striking the jury notices that the defendants filed. The plaintiffs submit that the trial should proceed as scheduled, beginning September 26, 2022, as a judge-alone trial. However, they agree that if civil jury trials are being conducted in Windsor on that date, the trial should proceed as a civil jury trial.
[2] While pleadings also included an order to strike the jury notice unconditionally, the plaintiffs did not pursue this argument on the motion.
[3] All defendants, except State Farm Insurance Company and Certas Home and Auto Insurance Company (collectively, “Certas”), have consented to, or are not opposed to, a provisional order to strike the jury.
B. BACKGROUND
[4] On April 21, 2016, the defendant, Mihaljo Stojanovic (“Stojanovic”), rear-ended a motor vehicle causing the first of multiple rear-end collisions involving a total of five motor vehicles.
[5] One of the plaintiffs, Cynthia Turner (“Cynthia”), was driving one of the motor vehicles in the middle of the collision sequence. The accident allegedly resulted in Cynthia suffering severe and permanent injuries and triggered pre‑existing health conditions, which had been in remission for more than two years.
[6] The defendants, Certas, insured the plaintiffs’ vehicle.
[7] The total damages claimed, including non-pecuniary general damages, economic loss, housekeeping, future care, and the claim by Cynthia’s husband, Raymond Turner, under the Family Law Act, R.S.O. 1990, c. F.3, amount to just over $3,700,000.
[8] The outstanding issues to date in this action are liability, causation, and damages. On the issues of causation and damages, Certas questions whether Cynthia sustained injuries and, if so, the extent of those injuries.
[9] The plaintiffs’ claim exceeds the $1,000,000 limit of the defendant Stojanovic’s policy. It is Certas’s position, in part, that the Certas policy does not stack on top of the co‑defendant’s policy. Therefore, no additional insurance is available to the plaintiffs from Certas, regardless of the extent of their damages.
[10] On March 3, 2017, Cynthia issued the statement of claim. It was amended on May 30, 2018 to include her husband and further amended on July 9, 2019. By the end of October 2019, each defendant had served and filed a jury notice. On November 27, 2019, the trial record was filed, and on November 30, 2019, the parties attended a pre-trial conference with Munroe J.
[11] The matter was subsequently adjourned to the civil jury assignment court on February 16, 2021, with an estimated trial time of four to five weeks. If the matter were to proceed by judge alone, the estimated time is three weeks.
[12] On April 20, 2021, Pomerance J. scheduled the trial of this matter before a jury for September 26, 2022, with an estimated time of four weeks for completion. This is the first time it had been set for trial.
[13] At the pre-trial conference, Munroe J. granted leave to the plaintiffs to bring a motion to strike the jury.
[14] It is anticipated that well before the trial of this matter, the defendants, Stefan N. Adjetay, Monyke Halabi, and Cindy Smitjes, will bring a summary judgment motion seeking their dismissal from the action. At the pre-trial conference, Munroe J. granted leave to bring that motion.
[15] All parties are ready to proceed to trial.
C. POSITION OF THE PARTIES
1) The Plaintiffs’ Position
[16] The plaintiffs argue that in these unprecedented times due to the COVID-19 pandemic, with disruptions to the court system and in particular civil jury trials, an order provisionally striking the jury notice is necessary to prevent the inevitable delay and prejudice that the plaintiffs would suffer in the very likely event the trial is adjourned.
[17] The authority to strike the jury notice is found under s. 108 of the Courts of Justice Act, R.S.O 1990, c. C.43, and r. 47.02 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[18] The plaintiffs’ position, pursuant to the recent case of Louis v. Poitras, 2021 ONCA 49, at para. 22 (“Louis”), is that while delay alone may constitute sufficient prejudice to warrant striking the jury notice, it is aggravated when coupled with other prejudice: see Holt v. Cole, 2021 ONSC 3338, at para. 13. In this case, any delay causes additional prejudice and contributes to the ongoing erosion of Cynthia’s claim for economic loss, as it is subject to the unrecoverable 30 percent statutory reduction of damages for pre-trial loss of income.
[19] The plaintiffs considered, but did not pursue, an order striking the jury notice unconditionally. By provisionally striking the jury notice, the plaintiffs attempt to balance the competing interests of all parties including the administration of justice.
[20] The provisional striking of the notice will promptly address the possibility of the trial being adjourned, streamline the procedure leading to trial, and bring greater certainty and sufficient notice as to whether the jury trial will take place. The plaintiffs argue that this approach is entirely consistent with the requirements under r. 1.04, namely that the rules “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” The plaintiffs take the position that unlike provisionally striking the jury notice, the “wait and see” approach that Certas advances will only add further costs and additional court time to the already substantial backlog of court cases.
[21] Finally, the plaintiffs acknowledge that while Certas has a substantive right to a jury trial, it is not absolute, and must yield to the practical reality that the matter will not likely commence on September 26, 2022, unless the jury notice is struck and the matter proceeds as a judge-alone trial.
[22] On this point, the plaintiffs refer to Johnson v. Brielmayer, 2021 ONSC 1245, at paras. 22 and 55:
In Louis v. Poitras, 2021 ONCA 49 (“Louis (C.A.)”), at para. 17, the Court of Appeal explained that “the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.” The Court’s authority to order that an action proceed without a jury is founded on s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, on Rule 47.02 and in the Court’s exercise of its inherent jurisdiction to control its own process: Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 38, leave to appeal refused, [2006] S.C.C.A. No. 496: “It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.”
The party’s choice of process is not unfettered. A party’s right to a jury trial is not absolute: Louis (C.A.), at para. 17; Louis (C.A. Stay Motion), at para. 67; Belton, at para. 26; Girao, at para. 171. They are “subject to the overriding interests of the administration of justice and issues of practicality”: Louis (C.A. Stay Motion), at para. 24. They are subject to the Supreme Court of Canada’s objective of access to justice that is timely, affordable and proportionate to achieve a just and fair result: Hryniak, at paras. 2, 28 and 66.
[23] The plaintiffs, as the moving party, bear the onus on this motion, and the test is whether “justice to the parties will be better served by the discharge of the jury”: see Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37 (“Cowles”).
2) The Defendant Certas’s Position
[24] Certas’s position is clear and succinct. They have the substantive right to a jury trial on this relatively uncomplicated case, and the only certainty is the uncertainty of whether jury trials will commence on or before September 2022. As a result, the provisional order that the plaintiffs seek is premature, as there is insufficient evidence at this time to justify striking the jury notice.
[25] Again, with reference to Cowles on the substantive right to a jury trial, at para. 36, citing King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, the court says “[i]t is settled law that 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.”
[26] Due to this uncertainty, justice would be better served by a “wait and see” approach. In other words, the decision to strike the jury notice should be decided closer to the date scheduled for trial when there will be a higher degree of certainty related to the operation of the civil courts. At paras. 71-72 of Cowles, the Court of Appeal explains the usefulness of the approach:
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.
A trial judge has a discretion whether or not to take a wait and see approach. In many cases it is the most prudent course to follow. In some cases, however, trial judges will consider that there is no advantage to beginning the trial with the jury because the situation as presented at the outset makes it apparent that the case should not be tried with a jury. There is thus no point to waiting and seeing.
[27] Since the start of the pandemic, the wait and see approach has been the preferred option in several cases. Some of these cases are referred to in Certas’s factum and include the following:
Higashi v. Chiarot, 2020 ONSC 5523
MacDougall v. Sisley, 2020 ONSC 6632
Piette v. Haskins, 2020 ONSC 6633
Saadi v. Silva, 2020 ONSC 6700
[28] Even if the jury notice were struck, it is unknown whether the matter would proceed as a judge-alone trial and, if it would proceed, whether a judgment would be reached any faster than if the matter, left as a jury trial, was adjourned. As a result, any prejudice to the plaintiffs because of delay, including to Cynthia due to the 30 percent loss of income claim, is speculative.
[29] Finally, Certas argues that a civil trial is particularly well suited in cases where the credibility of witnesses is a live issue: see Ismail v. Fleming, 2018 ONSC 6780, at para. 45. In this matter, Certas identifies the nature and extent of Cynthia’s injuries primarily as an issue of credibility.
D. ANALYSIS
[30] A good starting point is the Supreme Court of Canada case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, where Karakatsanis J. states the following, at paras. 1-2:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. 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.
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[31] With the advent of COVID-19, its disruption to the administration of justice, and the ensuing backlog of cases, “timely”, “effective and accessible means of enforcing rights” are now more important than ever.
[32] Applying these principles to the significant challenges that the civil justice system faces today is the decision in Louis. In that case, the Court of Appeal describes the “unprecedented crisis”, at paras. 1-2:
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, that no less than a cultural shift is required to preserve our civil justice system.
[33] The Court of Appeal emphasized that it is the judges at the local level who are best equipped to truly understand and tackle the myriad of problems currently facing the administration of their courts. The court goes on to state the following, at para. 26:
Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75. An appeal court must respect the reasonable exercise of this discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.
[34] On January 21, 2021, Pomerance J., the Local Administrative Justice, released an endorsement advising that due to the continuing uncertainties of the pandemic, all civil jury trials scheduled to commence in Windsor between March 2020 and December 2021 will not be reached until 2022.
[35] In late winter and spring of 2021, Chief Justice Morawetz released updated Notices to the Profession and Public Regarding Court Proceedings, which suspended jury trials until July 5, 2021 and directed that “all non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceedings in person.” The last updated notice was released on June 18, 2021 and indicated 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.”
[36] The evidence before this court is that civil jury trials in Windsor are currently being set for 2024, and those already scheduled for trial will not start before 2022.
[37] Certas has argued that based on the current evidence, it is still too early to know what the court conditions will be on September 26, 2022 and whether civil jury trials will commence. Further, Certas submits that there is currently no evidence before the court as to the length of the potential delay if the matter remains as a jury trial and is adjourned on the date currently scheduled for trial. As a result of these uncertainties, there is insufficient reason to justify striking the jury.
[38] With respect, I reject these arguments. There is ample evidence, based on the current conditions at the Windsor courthouse, that demonstrates it is highly unlikely this matter will proceed as a jury trial on September 26, 2022.
[39] In Gagnier v. Burns, 2021 ONSC 1971 (“Gagnier”), Thomas R.S.J., for the Southwest Region, bluntly described the significant challenges that the Windsor courthouse faced in March 2021 regarding the ability to accommodate pending jury trials. Before striking a civil jury notice for a trial that had not yet been set, Thomas R.S.J. said the following, at paras. 38-41:
As has been recognized in the cases to-date, civil trials, particularly civil jury trials, must compete for trial time with family and criminal cases. The priorities as identified by this Court put civil trials in third place.
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.
As mentioned, presently the within action finds itself on an assignment court list set for April 20, 2021. The list is comprised of all the outstanding civil jury matters awaiting trial. There are 34 matters on that assignment court list waiting to be assigned dates in 2022. The cumulative estimate of trial time is 94 weeks. This action will necessarily compete with those trials but only to the extent that ongoing criminal jury trials do not occupy all available courtrooms. In addition, there is family law litigation which cannot be tried virtually. Considerable delay in the hearing of this trial is inevitable.
[40] Another local case in which a jury notice was struck is Vogler v. Allstate Insurance Company of Canada, 2021 ONSC 4547 (“Vogler”). In June 2021, Carroccia J. referred to the above passage from Thomas R.S.J. in Gagnier before providing the following updates regarding the conditions at the Windsor courthouse, at paras. 50-51:
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.
None of the pending criminal jury trials referred to by Thomas R.S.J. have yet been tried.
[41] All parties agree that from the beginning of the pandemic until the hearing of this motion, neither civil nor criminal jury trials have begun, and I have no evidence that the situation has improved. As a result, it appears that the evidence before Thomas R.S.J. and Carroccia J. regarding the courthouse operations in Windsor is as relevant today as it was in March and June 2021. In other words, the prospect of a jury being empanelled on September 26, 2022 for a civil trial is remote and will inevitably be subject to a lengthy adjournment if the trial remains scheduled on that date as a jury trial. Based on the evidentiary record, I conclude that this matter will very likely be completed sooner if it were to proceed as a judge-alone trial.
E. CONCLUSION
[42] While the defendants have a substantive right to a jury trial, the current backlog in cases at the Windsor courthouse due to COVID-19, and the inevitable delay and prejudice to the plaintiffs if the matter remains a jury trial, provides compelling and cogent reasons to, at the very least, provisionally strike the jury notice. In other words, justice to the parties will be better served by the provisional discharge of the jury.
[43] In the face of these ongoing challenges, the wait and see approach will unnecessarily burden the already overburdened court system. While this approach was adopted in several cases, it reflected the exercise of judicial discretion in circumstances that differed from those in this jurisdiction. As a result, the wait and see approach under the present circumstances represents precisely the type of complacency that the judiciary is attempting to discourage: see Louis, at para. 23; Vogler, at paras. 60-61.
[44] The provisional striking of the jury notice is seamless and requires no further court appearances; it is triggered administratively by court directives. If conditions sufficiently improve, the jury notice will be automatically reinstated without the need for a further motion.
[45] Accordingly, I grant the motion for a provisional striking of the jury notice and make an order that the trial of this action will proceed as scheduled, beginning September 26, 2022, as a judge-alone trial, unless by this date Windsor is conducting civil jury trials and the trial of this action may proceed as a civil jury trial on that date without further delay.
F. COSTS
[46] The issue of costs can be addressed in writing. If the parties do not reach an agreement as to costs, then the plaintiffs’ 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 defendants’ submissions are to be filed within 15 days thereafter. No reply is necessary.
“original signed and released by Dubé J.”
Brian D. Dubé
Justice
Released: September 29, 2021
COURT FILE NO.: CV-17-24723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cynthia Turner and Raymond Turner
Plaintiffs
– and –
Mihaljo Stojanovic, Monyke Halabi, Cindy Smitjes, and Stefan N. Adjetey and State Farm Insurance Company and Certas Home and Auto Insurance Company
Defendants
RULING ON MOTION
Dubé J.
Released: September 29, 2021