COURT FILE NO.: CV-19-119

DATE: 20211110

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maggie Corkett, Plaintiff

AND:

Joshua Ginn, Defendant

BEFORE: The Hon. Madam Justice V. Christie

COUNSEL: Sherilyn Pickering, Counsel, for the Plaintiff

Allison Gaw, Counsel, for the Defendant

HEARD: November 9, 2021

Ruling on motion to strike jury notice

Overview

[1] The Plaintiff has brought a motion to strike the Defendant's Jury Notice, in a stated effort to have this trial scheduled and heard as soon as possible. At the time of this motion, only days before the fall civil and family trial sittings, judge alone civil trials are scheduled to proceed, whereas, civil jury trials are not being scheduled, except as back up to collapsed criminal jury trials post November 2021. This is as a result of ongoing COVID-19 concerns.

Facts

[2] A brief outline of the chronology of this matter is required to provide some context.

[3] This action arises out of a motor vehicle collision that occurred on December 2, 2017, nearly four years ago. The Plaintiff claims to have suffered a number of injuries as a result of this collision and claims to continue to suffer physical and mentally in various ways. The Plaintiff has not returned to work as a hairdresser and receptionist, which has caused her financial distress.

[4] The Plaintiff's income replacement accident benefits ceased as of January 4, 2019.

[5] The Statement of Claim was issued on January 16, 2019.

[6] The Defendant delivered a Statement of Defence and Jury Notice dated May 9, 2019.

[7] Examinations for discovery were conducted on April 5, 2019 and May 17, 2019.

[8] The trial record was filed on July 9, 2019.

[9] On March 11, 2020, the World Health Organization officially declared a pandemic in respect of the outbreak of COVID-19. By Notice to the Profession dated March 15, 2020, Chief Justice Morawetz announced that the Superior Court had suspended all regular operations of the Superior Court of Justice. While court matters did resume gradually overtime, civil jury trials did not resume.

[10] Mediation occurred on October 22, 2020.

[11] By Notice to the Profession dated November 21, 2020, Chief Justice Morawetz announced that in view of the public health situation, effective November 23, 2020, the Court would not commence any new jury selection in any court location except those in a Green Zone as defined by the Ontario Government. On December 14, 2020, Chief Justice Morawetz extended the suspension of jury trials until at least January 29, 2021 in all areas of the province except Green Zones, with jury trials recommencing on Monday, Feb. 1, 2021 at the earliest.

[12] On December 21, 2020, the Government of Ontario announced a provincewide shutdown from December 26, 2020 to January 23, 2021. On January 12, 2021, in response to increased COVID-19 cases, the government issued a stay-at-home order.

[13] By Notice to the Profession dated January 13, 2021, Chief Justice Morawetz announced that in view of the new provincial restrictions announced on January 12, 2021, effective January 13, 2021, the suspension of jury trials would be extended until May 3, 2021 at the earliest.

[14] By Notice to the Profession – Central East Region – May 2021 Civil Sittings Trial List, dated February 10, 2021, Regional Senior Justice Edwards advised, among other information, that the Central East Region would proceed with its regular civil sittings commencing on May 17, 2021 for three weeks, concluding on June 4, 2021, but that only non-jury matters would be heard. Further, the Notice indicated that the court would consider any motions to strike a jury notice until April 14, 2021 and that the decision of the motion judge would inform the court's decision as to whether a matter was then added to the trial list for the May 2021 sittings. At that time, the court did not anticipate having the capability to conduct a civil jury trial until well into 2022.

[15] As of June 2021, the Plaintiff had exhausted $21,583.45 of her $65,000 policy limit for medical and rehabilitation benefits in the claim for accident benefits. While money is remaining, the accident benefit insurer has been denying further benefits for things such as physiotherapy.

[16] By Notice to the Profession – Central East Region – November 2021 Civil Sittings Trial List, dated August 27, 2021, Regional Senior Justice Edwards advised,, among other information, that the Central East Region will proceed with its regular civil sittings commencing on November 15, 2021, for three weeks, concluding on December 3, 2021, but that only non-jury matters will be heard. The Notice further indicated that the court would consider any motions to strike a jury notice until October 15, 2021, and the decision of the motion judge would inform the court's decision as to whether a matter was then added to the trial list for the November 2021 sittings. Again, it was indicated that the court does not anticipate having the capability to conduct a civil jury trial until well into 2022. The Notice also states that while jury trials are not proceeding in the November 2021 sittings, the parties are able to schedule a civil jury matter as a back up to a criminal case post-November 2021, given that criminal matters often resolve and courts are left with empty court rooms. Matters can be placed on the backup trial list on consent of the parties. Through this process, counsel are able to obtain a fixed date for trial.

[17] A pre-trial conference was held on September 16, 2021.

[18] On October 22, 2021, the Ontario Government announced its hope to lift all COVID-19 restrictions by March 2022.

Analysis

[19] Under Rule 48.04(1) a party who sets down an action for trial may not initiate or continue any motion or form of discovery (with certain exceptions), without leave of the court. Rule 1.04(1), however, provides that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[20] There have been two recognized approaches the court can take for granting leave under Rule 48:

a. Where the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record, or

b. If it is in the interest of justice.

See: Chandrababu v Tharmalingham, 2021 ONSC 4885 at para. 16. In the context of the ongoing COVID-19 pandemic, the more flexible text has been found to be more consistent with Rule 1.04. See J.A.L. Developments Inc. v. Residents of Springhill Inc. 2020 ONSC 2222 at paras. 64, 66, 68-69

[21] This court does not agree that the trial judge would be in the best place to determine this motion in this context. COVID-19 has created new challenges for the courts and litigants. The Plaintiff here argues that they are unable to get a trial within a reasonable time due to restrictions placed on courts by COVID-19. The Plaintiff cannot get a trial judge. It would be unreasonable to suggest that this motion should be brought to a trial judge that they cannot get.

[22] Frankly, it is the view of this court that the Plaintiff would meet either criteria for granting leave. When the trial record was filed, the impact of COVID-19 was not something most people could even imagine. Certainly, circumstances have changed – the world has changed. Further, it is in the interests of justice to determine how this action should proceed in light of the current situation.

[23] The Plaintiff is granted leave to bring and argue this motion.

[24] As for civil trials by jury, pursuant to Rule 47.01, a party may require that the issues of fact and assessment of damages be tried by a jury by delivering a Jury Notice. A right to trial by jury in a civil case is a substantive right codified in section 108(1) of the Courts of Justice Act. This right ought not to be summarily taken away or "interfered with without just cause or cogent reasons". See Cowles v. Balac, (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (ONCA) at para. 36; Wilkes v. Glover, 2021 ONSC 5988, para. 14

[25] To strike the Jury Notice, the moving party must meet 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, which merit the discharge of the jury. The overriding test is whether or not the moving party has shown that justice to the parties would be better served by the discharge of the jury. See Cowles, para. 37.

[26] In Kempf v. Nguyen, 2015 ONCA 114, the court stated:

[43] In the majority reasons in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 496, O'Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice and appellate review of such a decision, as paraphrased here:

(1) The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See, also, King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32, at p. 533 S.C.R.: "the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons".

(2) A party moving to strike the jury bears 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. 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 (at para. 37).

(3) Appellate review of a trial court's exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See, also, Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295 (C.A.), at p. 69 O.R., leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 800n, [1985] S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge's exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).

(4) The reviewing court should not interfere with the trial judge's exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge's discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See, also, Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at p. 625 O.R. [page253]

(5) The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49). 2015 ONCA 114 Kempf et al. v. Nguyen[Indexed as: Kempf v. Nguyen]

(6) While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).

(7) It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See, also, Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109 (C.A.), at para. 70.

(8) In some cases, it is preferable to take a "wait and see" approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary (at para. 70).

(9) While in many cases the "wait and see" approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).

(10) If the reviewing court concludes that the trial judge erred in striking the jury notice, the merits of the action must be considered (at para. 92). As stated in King, at p. 533 S.C.R., a new trial is not warranted "if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge".

[27] This test confers a broad discretion on the Court to determine whether justice to the parties will be better served by discharging the jury. It recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible. Cowles, para .38-9

[28] Where systemic realities impair the court's ability to provide jury trials in an expeditious, affordable, proportionate way, these realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases. MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, para. 32

[29] The Ontario Court of Appeal, fairly recently, dealt with the issue of striking a jury notice. In Louis v. Poitra, 2021 ONCA 49, the court overturned a decision of the Divisional Court and reinstated the motions judge's order to strike jury notices in an Ottawa action. The case demonstrates that the decision to strike a jury notice for reasons related to the COVID-19 pandemic will depend on the location and the specifics of the case. The Court stated:

[3] 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...

The Court also held that "delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice". (para. 22) The Court encouraged motion judges to consider the interests of justice and the effect delay has on the administration of justice.

[30] There have been a number of motions to strike jury notices throughout the pandemic. As referred to in the practice directions, the court anticipated this and set deadlines for such motions to be heard. In personal injury cases in Ontario, courts have considered a number of factors, including, but not limited to:

a. The length of the delay from the event that gave rise to the cause of action to trial;

b. The parties' readiness for trial;

c. The length of the trial;

d. Previous trial adjournments;

e. The local impact of the pandemic, to assess the likely timing for the resumption of jury trials;

f. Costs to update expert reports;

g. Prejudice to the parties caused by delay in adjudication;

[31] The Plaintiff argued that justice will be better served by striking the Jury Notice and pointed to the following factors:

a. Almost four years have passed since the event that gives rise to the claim;

b. Over two years have passed since the Plaintiff filed the Trial Record;

c. The parties are ready to proceed to trial

d. The financial benefits to the Plaintiff through the accident benefits will soon be exhausted and there will be no ability to fund treatment. In any event, accident benefits are regularly being denied.

e. The Plaintiff will statutorily lose 30% of any pre-trial loss of income prior to trial.

f. The Plaintiff has not worked since the incident. Her income replacement has been discontinued as of 2019, which has led to financial distress.

g. The Plaintiff argued that it is unclear when jury trials will resume in this Region, particularly in Barrie, and that the earliest this could happen is in the May 2022 trial sittings. However, if this action would proceed virtually with a judge alone, it would be heard on a date substantially earlier than if it proceeds to trial with a jury. The matter is likely not to proceed for many more months, until well into 2022 as outlined in the practice direction. This case may be delayed for years.

h. The Plaintiff will likely have to update her expert reports at significant cost if the matter is significantly delayed. The Plaintiff has obtained and served eight expert reports for the purposes of proving damages, the latest of which was dated September 14, 2021.

i. No prejudice will result to the Defendant by having the jury notice struck as there will still be a just determination by a judge.

[32] Having considered the entirety of the circumstances of this case and the current state of the COVID-19 pandemic as it is known at this time, this court declines to strike the jury notice for the reasons that follow:

a. The event giving rise to this litigation occurred on December 2, 2017, however the litigation did not commence until January 16, 2019.

b. The trial record was prepared and filed on July 9, 2019, yet there was no pre-trial conference until September of 2021. It was not clear to this court why this delay occurred, and counsel was unable to assist on this point, other than to suggest that a pre-trial was requested in December 2020. This still leaves a year and a half of unexplained delay.

c. The Plaintiff has not met the deadline to strike the jury notice prior to October 15, 2021, therefore, this matter cannot be scheduled for the current trial sittings which commence on Monday. The reality, therefore, is that this matter would not be heard until the May 2022 sittings in any event. There is no evidence that this matter will be delayed at all.

d. This matter has never been scheduled for trial. The first request for this matter to be scheduled for trial was in September 2021 at the pre-trial conference.

e. From current information in relation to the COVID-19 pandemic, the government has announced that all restrictions may be removed in March 2022, as long as things continue in a positive manner. The COVID-19 pandemic in the Province of Ontario and the City of Barrie is rapidly improving, with some of the lowest cases and highest vaccination numbers in the world. Therefore, it is highly likely that civil jury trials will resume in May 2022, at least the Plaintiff has not demonstrated the contrary. Therefore, there will be no further delay in this trial proceeding.

f. While criminal jury trials are currently the priority, the Central East Region has offered the opportunity for civil trials to be backed up to criminal jury trials and that if those criminal jury trials collapse, the civil jury trial could proceed.

g. The Plaintiff has only used a third of the available medical and rehabilitation accident benefits. The fact that the insurer is denying the claims is between the Plaintiff and the insurer.

h. There is absolutely no evidence that when jury trials resume, the jury pool will not be representative of the community due to certain segments of the population having a heightened vulnerability to COVID-19. Criminal jury trials have been ongoing for some time in the Region.

i. The Defendant has exercised his statutory right to proceed with a jury from the outset and has prepared with this in mind.

[33] This court does not agree with the Defendant that delay is simply to be accepted in civil litigation. Delays cannot simply be accepted as the norm. In Louis v. Poitras, the court stated at para 23:

[23] …The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system's systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.

[34] Based on the history of this case, it is not evident to this court that the Plaintiff has moved the action forward expeditiously. As previously stated, there is a gap between the filing of the trial record and the pre-trial conference that is unexplained. Counsel did submit that they sought to schedule a pre-trial in December 2020, however, this still leaves a gap of nearly a year and a half where seemingly nothing was happening. This does not suggest a litigant anxious to move the matter forward to trial.

[35] It is the view of this court that the delay in this case will be minimal, if any, based on current projections. Although any delay in obtaining a jury trial can constitute prejudice, this court is not satisfied that the possibility of delay in this case outweighs the Defendant's substantive right to a jury trial. The Plaintiff has failed to meet the onus of proving that justice to the parties will be better served by discharging the jury.

[36] Even if this court were to accept that the Plaintiff would experience prejudice if the trial was delayed, even if the jury notice is struck, there is no guarantee as to when a non-jury trial will take place and the prejudice may be suffered in any event. There is no evidence to suggest this trial would occur earlier than the May sittings. Having said that, if the jury notice is struck, the Defendants will most certainly be prejudiced.

[37] There is no argument in this case that this matter is inappropriate or too complex to be tried by a jury.

[38] This issue can certainly be revisited at a later time if circumstances change. The motion can be renewed.

[39] For all of the foregoing reasons, the motion to strike the Jury Notice is dismissed.

[40] If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office electronically, and to Bev.Taylor@ontario.ca, no later than November 15, 2021.

Justice V. Christie

Date: November 10, 2021