Overview

[1] This motion was brought by the plaintiff, H.K. After hearing the motion, I granted the relief sought and struck the plaintiff’s jury notice so that the matter could proceed before a judge alone and be placed on the February 8, 2021 non-jury civil trial list.

[2] I advised the parties that I would provide written reasons for my decision. These are the reasons.

[3] The plaintiff brought this motion for an order striking the plaintiff’s civil jury notice dated November 18, 2019 and directing the trial of this action to proceed by judge alone.

[4] The only material before this court on this motion was filed by the plaintiff. It consists of the plaintiff’s affidavit, an affidavit of a law clerk employed by the plaintiff’s lawyers, and the plaintiff’s factum and brief of authorities and a copy of the Ontario Court of Appeal’s decision in Louis v. Poitras, released on January 25, 2021, 2021 ONCA 49 (“Louis”).

[5] The defendants, T.B. and G.B., are self-represented. They filed no responding materials on this motion. T.B. took part in this motion via Zoom but G.B. did not. T.B. advised that G.B. is his wife and could not attend on the motion, which was brought on short notice and G.B., a personal support worked, was at work.

[6] There is some urgency to the hearing and determination of this motion as this matter is on the trial list for sittings of February 8, 2021. The parties have been ready to proceed to trial since last November. COVID-19 resulted in the suspension of jury trials at that time and this matter was put over to the jury trial list for the February 8, 2021 sittings.

[7] For COVID-19- related reasons, on January 12, 2021, the Province of Ontario was placed into lockdown. As a result, Chief Justice Morawetz directed the suspension of all jury trials until May 3, 2021 “at the earliest”. As a result of this order, the plaintiff’s action could not proceed by way of jury trial in the February 8, 2021sittings. By striking the plaintiff’s jury notice, this matter was able to remain on the February 8, 2021 civil trial list, available to be heard as a non-jury matter.

Background

Scheduling History: COVID-19 and Trial Adjournment

[8] On consent, the trial of this action was scheduled to proceed with a jury date in November 2020. Monday, November 16, 2020 was fixed for commencement of the five-day trial. However, on Friday, November 13, 2020, the City of Hamilton was identified as a “Red Zone” by the Province of Ontario. As a result, all civil jury trials were suspended.

[9] Faced with the adjournment of the trial, the plaintiff sought the defendants’ consent to proceed by judge alone. Had they consented, the trial could have proceeded on Monday, November 16, 2020. The defendants would not consent and, instead, the matter was adjourned to the February 8, 2021 jury trial sittings.

Grounds for the Motion

[10] The plaintiff’s grounds for the motion are summarized below:

Unless the jury notice is struck, the plaintiff’s trial will be delayed by an unknown length of time.

The trial of the plaintiff’s action has already been adjourned once in November 2020, due to the COVID-19 pandemic and, unless the plaintiff’s jury notice is struck, it will have to be adjourned a second time as jury trials are not proceeding in February, 2021 and all jury trials have been suspended until May 3, 2021, “at the earliest”.

Even if jury trials resume in May 2021, there is a real concern that criminal and family matters will take precedence and that this action will be significantly delayed as the backlog of civil jury cases continues to grow.

Delaying the trial is prejudicial to the plaintiff.

Firstly, given the nature of the claim, the preparation for trial causes emotional trauma to the plaintiff and interferes with the plaintiff’s ability to heal from the injuries suffered. Secondly, the delaying of the trial also delays the plaintiff’s opportunity to obtain a monetary judgment, from which she hopes to finance the treatment, rehabilitation, and therapy she requires to assist her to recover from injuries she claims were caused by the defendants.

The jury notice was served by the plaintiff.
There is no evidence that the defendants ever communicated a wish to have the action tried by jury.
Justice to the parties will be better served by the discharge of the jury.

Leave required

[11] As a preliminary matter, because the plaintiff had set the action down for trial, leave of the court is required for the plaintiff to bring this motion. Leave may be granted if the moving party shows that there has been a substantial or unexpected change of circumstances subsequent to the filing of the Trial Record or if it is in the interests of justice to grant leave. (Louis v. Poitras, 2020 ONSC 5301 at para. 22).

[12] T.B. took the position that leave ought not to be granted. Despite having taken that position, T.B. did acknowledge that COVID-19 has had a significant impact on the scheduling of this trial.

Disposition: Leave and Short Notice

[13] Having heard submissions from both parties, I am satisfied that the plaintiff meets either test set out in Louis: it is beyond question that COVID-19 and its impact on the trial of this action is a “substantial and unexpected change” in circumstances. As stated by the Court in Louis as a result of the COVID-19 pandemic, the “civil justice system faces an unprecedented crisis” (Louis, at para.1).

[14] Secondly, I conclude that it is in the interests of justice that leave be granted, given the prior cancellation of the jury trial last November and the inevitable adjournment of the trial if it were to remain on the civil jury list.

[15] I was also satisfied that the plaintiff should be granted leave to bring this motion on short notice, given that the defendants have known since November 13, 2020 that the plaintiff wished the trial to proceed by judge alone.

Nature of the Claim

[16] On July 21, 2011, T.B. was convicted of charges laid relating to the sexual assault of the plaintiff and sentenced to 44 months in jail.

[17] In this action, the plaintiff seeks damages caused by the sexual assault on the plaintiff by the defendant T.B. The assaults on H.K. for which T.B. was convicted, occurred between 2006 and 2010, while H.K. was a minor.

[18] This action was commenced on November 1, 2018. An amended statement of defence was filed on November 15, 2019. On November 18, 2019, the plaintiff filed a Jury Notice. Pleadings were closed on November 28, 2019. The defendants did not file a jury notice.

[19] Examinations for discovery were completed on February 27, 2019 and the Trial Record was passed on December 3, 2019. On consent, on January 31, 2020, the trial was scheduled to proceed in the jury sittings of November 2020. As explained above, because of the COVID-19 pandemic, the jury trial set to begin on November 16, 2020, could not proceed. The defendants would not agree to proceed on that date by judge alone and the action was put over to the jury trial list for the sittings commencing February 8, 2021. As also explained above, no jury trials will be scheduled in Ontario until May 3, 2021, at the earliest. However, if the plaintiff’s jury notice is struck, this action may remain on the February 8, 2021 non-jury trial list and, the plaintiff hopes, will be reached in those sittings.

[20] On the motion, T.B. submitted that he and G.B. had very much wanted the trial of this action to proceed before a jury. However, he acknowledged that prior to November 13, 2020 - when the parties were told that this trial could not proceed on Monday, November 16, 2020 - the defendants had never communicated to the plaintiff, orally or in writing, that they wished the trial to proceed before a jury. It was only in response to the plaintiff’s request to proceed with the trial on November 16, 2020 by way of judge alone, that the defendants first asserted that they wanted this matter to be heard by judge and jury.

The Impact on Court operations of COVID-19

[21] In Belton v. Spencer, 2020 ONSC 5327 (“Belton”), I struck a civil jury notice because of the delay that would result in scheduling a jury trial by reason of the pandemic. Since the release of Belton, progress has been made in this Region in the retrofitting of courtrooms for use by the Superior Court of Justice – plexiglass barriers, seating allocations, cleaning stations, etc. have been installed in a number of courtrooms. However, as recent events illustrate – specifically, the November 2020 suspension of jury trials in Hamilton and the province-wide lockdown put in place in January 2021 leading to the suspension of jury trials to at least May 3, 2021 – the retrofitting of courtrooms is not enough to overcome the challenges to the administration of justice, caused by a frightening increase in COVID-19 cases and deaths.

[22] This Region, and Hamilton in particular, continues to experience a high number of COVID-19 cases and hospitalizations. There is optimism that the pandemic will ultimately be halted with vaccinations. However, with the current interruption in the supply of vaccines, the difficulty in getting vaccine into arms, and the emergence of new and, apparently, more contagious strains of the virus, even optimists must accept that it is unrealistic to expect a return to normal operation of the courts in the near future.

[23] The plaintiff recognized those realities in November 2020 and accepted that unless the parties were willing to proceed by judge-alone trial, the November trial date would be lost. The situation today is perhaps worse than it was in November 2020 and, even if jury trials resume in May (at the earliest), criminal jury trials will undoubtedly take priority over civil jury trials and chances are reduced that the plaintiff would be able to have this action heard by a jury this year.

The Law

General Principles and Statutory Authority

[24] The authority to strike a jury notice is found in section 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, which permits a court on motion to order that “issues of fact to be tried or damages assessed, or both, without a jury.

[25] Rule 47.02 (2) of the Rules of Civil Procedure[^1] provides that a motion to strike out a jury notice may be made on “the ground that the action ought to be tried without a jury.”

[26] 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. A party who seeks to strike a jury bears the onus of showing that “justice to the parties will be better served by the discharge of the jury”: Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), (2006) 83 O.R. (3d) 660 (C.A.), at paras 36, 37.

[27] 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.[^2] A judge considering a motion to strike a jury notice has “considerable discretion”, which must not be exercised arbitrarily or based on improper principles.[^3]

[28] Until recently, there was little jurisprudence concerning motions to strike a jury notice, made in the context of a global pandemic. As more fully discussed below, post-COVID-19, there have been a number of lower court decisions on motions to strike civil jury notices, including Belton. The very recent decision of the Court of Appeal for Ontario, in Louis, offers this court welcome guidance on the issues. Among other things, the Court in Louis confirmed that the general principles applicable on a motion to strike a jury notice continue to apply.[^4]

[29] In Belton, the defendant sought to appeal my order striking the jury notice. The defendant moved for a stay of that decision, pending the hearing of the appeal. The motion to stay was heard by Brown J.A. sitting as a single judge of the Court of Appeal; his decision was rendered on October 1, 2020.[^5]

[30] In his decision, Brown J.A. reviewed the law relating to the substantive right to a jury trial and the proper exercise of the court’s discretion to strike a jury notice or discharge a jury. Paragraphs 26 and 27 read as follows:

[26] The substantive right to a civil jury trial, upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac(2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, 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: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.

[27] As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, “it is not absolute and must sometimes yield to the practicality.”

[31] In MacLeod v. Canadian Road Management Company,[^6] Myers J. also referred to Cowles v. Balac for the basic principles to be applied by the court on a motion to strike a jury notice. The principles set out below are borrowed from paras. 23-24 of MacLeod:

(a) The court must decide whether the moving party has shown the justice to the parties will be better served by the discharge of the jury;

(b) The object of a civil trial is to provide justice between the parties, nothing more; and

(c) A judge may strike a notice even before the trial has begun if the judge considers that there is no advantage to beginning the trial with the jury because the situation makes it apparent that the case should not be tried with a jury.

[32] As noted by Myers J., “since…the seminal decision of the Supreme Court of Canada in Hryniak[^7], we also know that to be just a civil resolution of a dispute must not either take too long or be too expensive.” (MacLeod, at para. 30)

[33] I repeat and adopt the excerpts from Hyriniak as paraphrased by Myers J. in MacLeod[^8] that

our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised;
undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes; and
prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.

[34] In Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, the Court of Appeal confirmed that the principles governing the discharge of the jury remain as set out in Kempf and that “the question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury?”

[35] At paragraph 171, Lauwers J.A. states “[w]hile I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.”

[36] I turn now to consider Louis. In Louis, a trial had been set to proceed before a jury but with the intervention of COVID-19, the trial date was lost. At the time, civil juries were not being scheduled in that Region but judge-alone trials were available. The motion judge, Beaudoin J., determined that the jury notices should be struck and that the trial should proceed by judge alone. The defendant’s insurers appealed Beaudoin J.’s decision to the Divisional Court, which allowed the appeal, and reinstated the jury notices. The Court of Appeal disagreed and set aside the judgment of the Divisional Court and restored the Order made by Beaudoin J.

[37] The first paragraph in Louis reads, in part, as follows:

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…our courts are charged with the management of a civil justice system that is being overwhelmed.[^9]

[38] The Court noted that judges of the Superior Court “work tirelessly to keep the civil justice system afloat” and “that local conditions will necessarily impact the choice of effective solutions” implemented to “ensure the timely delivery of justice”[^10].

[39] The Court makes it clear that judges of the first instance may need to find “creative ways to ensure the parties get their day in court in a timely manner” and in so doing are responding to the “Supreme Court’s injunction in Hyrniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, that no less than a cultural shift is required to preserve our civil justice system.”[^11]

[40] The Court endorsed the statement of Brown J.A. in his Reasons for Decision on the motion to stay the Divisional Court’s decision[^12], that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice” and, stated that, as noted by Brown J.A., “the whole raison d’être of the civil justice system, as captured in R .1 .04 (one), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits.”[^13]

[41] Finally, at para. 23, the Court stated that courts must take a different approach to the new reality of the civil justice system and that systemic delays should not be expected or tolerated as “the ordinary course”…which “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 Hyrniak.”[^14]

Analysis

[42] Similar to the facts in Louis, the events that form the basis of H.K.’s claim took place many years ago. Likewise, similar to many of the other cases in which the jury notice was struck, in the matter before me, the trial of the plaintiff’s action has already been adjourned once and, unless the jury notice is struck, the trial will have to be adjourned a second time to at least May 3, 2021. Based, however, on information known to this court, if this matter is to proceed by way of jury trial, there will be a significant and unknown delay in obtaining a trial date. As stated by the Court in Louis, delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify the striking out of the jury notice.

[43] Also, the evidence before me is that the plaintiff has suffered, and will continue to suffer real and actual prejudice and harm – both psychological and emotional – if the trial of this action is again adjourned, and, if the delay is for a significant and unpredictable length of time.

[44] The plaintiff has filed evidence on this motion to support the plaintiff’s assertion that preparing for trial causes emotional trauma and interferes with the plaintiff’s ability to heal from injuries she claims to have suffered and that delaying of the trial delays the plaintiff’s ability to seek a monetary judgment from the defendants, from which the plaintiff hopes to finance rehabilitation treatment and therapy.

[45] On the motion, T.B. was given a full opportunity to make submissions. I have difficulty accepting T.B.’s submissions that he and G.B. always wanted to have this matter tried by a jury. That difficulty comes from the fact that the jury notice was delivered by the plaintiff; and that the defendants neither delivered their own jury, notice nor communicated at any time prior to November 13, 2020, that they had a desire to have this matter tried by judge and jury.

[46] In granting the relief sought by the plaintiff, I also took into account that the events that give rise to the plaintiff’s claim date back to 2006 and that the plaintiff’s civil action follows the completion of T.B.’s criminal proceedings, which are now almost a decade old.

[47] In determining to strike the jury notice, I concluded that the delay in the scheduling of the plaintiff’s trial and the uncertainty as to when it might be rescheduled, justified the striking of the jury notice. Stated differently, the plaintiff showed that justice to the parties would be better served by the discharge of the jury.

Disposition

[48] For the reasons set out above, at the conclusion of the hearing of the motion, I granted the relief sought by the plaintiff and ordered that the plaintiff’s jury notice be struck and that the trial proceed by way of judge alone.

[49] Immediately upon hearing my decision, T.B. unilaterally chose to leave the Zoom hearing. We then took a short break, during which the court asked counsel for the plaintiff to send T.B. an email containing the following message:

Mr. [B.],

Justice Sheard has asked me to email you to advise you that Court will resume today at 12:00 p.m. via zoom and that she expects you to attend.

Thank you,

[50] T.B. did not return to the hearing when it resumed at 12:00 p.m.

Costs

[51] As the successful party on this motion, the plaintiff was presumptively entitled to their costs and was invited to make oral submissions. Counsel for the plaintiff advised that she had served an Offer to Settle on the defendants offering to seek payment only of the court filing fees on this motion, if the defendants consented to the order striking the jury. That offer was not accepted.

[52] The plaintiff also filed a Bill of Costs in support of the plaintiff’s claim for partial indemnity costs of the motion in the amount of $4,898.55, inclusive of disbursements and HST.

[53] The plaintiff’s Offer to Settle the motion does not qualify as an offer under rule 49 of the Rules in that it was not served seven days prior to the commencement of this motion.

[54] In determining costs, I applied the principles found in rule 57.01. I considered that the defendants had been on notice since November 13, 2020 that the plaintiff wished the trial to proceed by judge alone because of the suspension of jury trials caused by COVID-19; that the defendants had not, themselves, served the jury notice or, at any time prior to November 13, 2020, indicated that they wished a jury trial; that the defendants were well aware of the current provincial shut-down and the suspension of jury trials, (this was made clear by T.B. in his submissions on the motion); and that the amount claimed was reasonable in the circumstances and the amount that was claimed was within the amount that the unsuccessful party could reasonably expect to pay.

[55] For the above reasons, costs of the motion were fixed at $4,898.55, inclusive, payable by the defendants to the plaintiff.

Justice L. Sheard

Date: February 1, 2021

COURT FILE NO.: 18-67333

DATE: 20210201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

H.K.

Plaintiff/Moving Party

and –

T.B. and G.B.

Defendants/Responding Parties

REASONS FOR DECISION ON MOTION

Released: February 1, 2021

[^1]: R.R.O. 1990, Reg.194. [^2]: Louis, at para 17. [^3]: Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para 44. [^4]: Louis, at paras 17, 24. [^5]: Belton v. Spencer, 2020 ONCA 623. [^6]: , 2018 ONSC 2186, 79 C.C.L.I. (5th) 314. [^7]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [^8]: MacLeod, at para. 30. [^9]: At para 1. [^10]: At paras 2 and 3. [^11]: At para. 2. [^12]: Louis v. Poitras, 2020 ONCA 815, at para. 33. [^13]: Louis, at para.22. [^14]: Louis, at para. 23.

H.K. v T.B. and G.B. 2021 ONSC 799

Case Summary

Overview

Background

Scheduling History: COVID-19 and Trial Adjournment

Grounds for the Motion

Leave required

Nature of the Claim

The Impact on Court operations of COVID-19

The Law

General Principles and Statutory Authority

Analysis

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2