COURT FILE NO.: CV-13-4879
DATE: 2021 12 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rashid Ali Syed, Plaintiff
AND:
Derek James Petrie, Defendant
BEFORE: Doi J.
COUNSEL: Gerry Antman, for the Plaintiff
Lori Visconti, for the Defendant
HEARD: November 26, 2021
ENDORSEMENT
Overview
[1] The Plaintiff brought a motion to conditionally strike the Defendant’s jury notice in this personal injury action arising from a motor vehicle accident.
[2] On November 26, 2021, I heard the Plaintiff’s motion. On December 1, 2021, I released a bottom-line decision that granted the motion with reasons to follow. The following are my reasons for the motion.
Background
[3] The motor vehicle accident which gave rise to this personal injury action took place on June 19, 2008 in Brampton.
[4] The Plaintiff commenced this action by issuing a statement of clam on August 7, 2009 in Toronto. On September 24, 2009, the Defendant delivered a statement of defence and jury notice.
[5] Liability and damages are disputed in this action.
[6] The Plaintiff and Defendant were initially examined for discovery on February 24, 2010. Thereafter, the Plaintiff’s examination for discovery continued on June 25, 2012.
[7] In 2011, the Defendant required the Plaintiff to attend psychiatric medical examinations with Dr. Furlong, the initial defence psychiatric expert, who authored various opinions that were served on the Plaintiff.
[8] On June 4, 2012, the Plaintiff served a trial record.
[9] On October 9, 2013, the action was transferred from Toronto to Brampton on consent.
[10] On February 10, 2016, the matter came before Fairburn J., as she then was, for a pre-trial conference. The conference was adjourned to May 30, 2016 but did not proceed on the return date because the matter had been struck. On September 22, 2016, the Plaintiff brought a motion to restore the action to the trial list on consent.
[11] On November 27, 2017, the action proceeded to a pre-trial conference before Master Sugunasiri, as she then was. As part of this pre-trial conference, Master Sugunasiri scheduled the action for the January 2019 trial sittings and set a timetable for completing the remaining steps in the action. At the time of the conference, the Defendant knew through surveillance evidence, which was disclosed, that the Plaintiff had commenced employment. In light of this development, the Defendant sought a further discovery of the Plaintiff on his ability to be gainfully employed. The Plaintiff did not consent to a further discovery.
[12] On February 22, 2018, the Defendant brought a motion to require the Plaintiff to attend for a further examination for discovery and provide answers to outstanding undertakings and refusals. Barnes J. heard the motion and ordered a further discovery of the Plaintiff which the Defendant conducted on September 12 and 26, 2018.
[13] After the Plaintiff’s further examination for discovery, the Defendant brought a motion to compel answers to undertakings and refusals. On March 19, 2019, LeMay J. heard the motion and ordered the Plaintiff to provide some answers. However, success on the motion was divided.
[14] In May of 2018, the Defendant learned that Dr. Furlong had suddenly become ill and was no longer able to testify at the upcoming trial. The Defendant asked the Plaintiff to re-attend for an assessment by another psychiatrist, Dr. Notkin, however the Plaintiff did not agree on the terms for doing so. As a result, the Defendant brought a motion for the Plaintiff to attend for another defence psychiatric examination. After hearing the motion, Bielby J. made an order on October 4, 2018 for the Plaintiff to attend an examination by Dr. Notkin. Within his order, Bielby J. gave the Plaintiff a choice to either proceed to trial in the January 2019 sittings as scheduled or, within a week of receiving Dr. Notkin’s report, to adjourn the trial unilaterally to the May 2019 sittings if he wished to respond to the report. After receiving Dr. Notkin’s expert report on October 24, 2018, the Plaintiff advised on October 31, 2018 that he wanted wished respond. Accordingly, the trial was adjourned to the May 2019 sittings.
[15] On November 30, 2018, Dr. Notkin gave a supplemental expert psychiatric report after the Defendant asked him to consider further materials, namely the defence medical reports prepared by Dr. Clark, a physiatrist, and Dr. Zakzanis, a neuropsychologist, and the surveillance footage.
[16] On April 12, 2019, the Plaintiff asked to further adjourn the trial to the January 2020 sittings as his responding expert psychiatry report was delayed. The Defendant opposed the adjournment request, which caused the Plaintiff to bring a motion to adjourn the trial. Shaw J. adjourned the trial to the January 2020 sittings and granted costs to the Defendant for the motion and for trial preparation costs thrown away.
[17] On September 27, 2019, the Plaintiff served an expert psychiatric report prepared by Dr. Shahmalek in response to the defence reports prepared by Dr. Notkin. On October 15, 2021, the Plaintiff further served a report prepared by another expert psychiatrist, Dr. Gerber.
[18] The trial was scheduled to start on January 6, 2020. On January 1, 2020, Plaintiff’s counsel wrote to Defendant’s counsel for confirmation that all surveillance on which the Defendant intended to rely had been served.[^1] On January 3, 2020, Defendant’s counsel responded by serving a surveillance report dated December 26, 2019 containing new surveillance from December 19, 20 and 21, 2019 that their investigator had provided on January 2, 2020. On January 5, 2020, the Defendant served the Plaintiff with a further report dated January 3, 2020 for surveillance conducted on December 30 and 31, 2019 and January 2, 2020, respectively. On January 6, 2020, the Defendant gave the Plaintiff an actual copy of the surveillance footage.
[19] The trial of this action proceeded during the January 2020 sittings before Fowler Byrne J. and resulted in a mistrial, as further described below.
[20] On January 6, 2020, a jury was selected in Brampton before the trial was moved to Kitchener due to a lack of courtroom availability in the Brampton courthouse.
[21] On January 9, 2020, the Plaintiff unsuccessfully brought an unopposed motion to traverse the trial back to Brampton. On January 9 and 10, 2020, the Plaintiff moved to either exclude the December 26, 2019 and January 3, 2020 surveillance reports and footage, or to adjourn the trial to the May 2020 sittings in order to review the new surveillance and respond. Fowler Byrne J. found that the surveillance was admissible, subject to a voir dire, and adjourned the trial to January 16, 2020 to give the Plaintiff an opportunity to review the new surveillance with his experts.
[22] Following the Defendant’s opening statement to the jury on January 16, 2020, the Plaintiff unsuccessfully brought a motion to strike the jury, or alternatively for a mistrial. Although the Plaintiff’s motion was dismissed, Fowler Byrne J. gave certain remedial instructions to the jury to address some of the concerns raised on the motion.
[23] On January 17, 2020, the Plaintiff began his evidence. Before taking the stand, the Plaintiff advised the court, through his counsel, that he was feeling unwell. As a result, and for the purpose of releasing the alternate jurors, the Plaintiff briefly took the stand to answer several background questions. The Plaintiff was scheduled to take the stand again on January 22, 2020.
[24] Prior to resuming his examination in chief on January 22, 2020, the Plaintiff sat in the gallery of the courtroom, behind his counsel’s table, while the jury was brought into the courtroom and seated. When his counsel recalled him to continue his evidence, the Plaintiff walked slowly towards the witness box and began to utter phrases that included the following:
“I don’t feel good.”
“I am a burden. I am useless for certain.”
“I want to call my wife. I can’t. I won’t.”
[25] As he approached the witness box, the Plaintiff was bleeding onto the ground and collapsed in front of the jury. Plaintiff’s counsel observed the Plaintiff bleeding from his wrist and later saw a razor blade which the Plaintiff apparently used to cut himself. Emergency personnel were called and transported the Plaintiff to hospital where he was admitted involuntarily for an assessment pursuant to a Form-1 application under the Mental Health Act, RSO 1990, c. M.7. Hospital records confirm that the Plaintiff has a history of self-mutilation or cutting, and indicate that he lacerated his left wrist while sitting in the gallery of the court that day because he had felt overwhelmed.
[26] Following the episode, the Defendant successfully brought a motion for a mistrial. The Plaintiff’s cross-motion to strike the jury and continue the trial before a judge alone was dismissed.
[27] On February 1, 2021, the parties appeared at Assignment Court when the trial of this matter was re-scheduled for January 10, 2022.
[28] The Plaintiff unsuccessfully moved for leave to appeal various orders that Fowler Byrne J. made at trial. On March 15, 2021, the Divisional Court denied leave with costs.
Leave to Bring the Motion
[29] Leave is required under Rule 48.04(1) of the Rules of Civil Procedure to bring or continue a motion after setting an action down for trial. The Defendant did not oppose the Plaintiff’s request for leave to bring this motion to strike the jury notice. In my view, this was a reasonable concession given the nature of the ongoing COVID-19 pandemic which caused a substantial and unexpected change of circumstances after the action was set down for trial and raised issues of trial delay that justify hearing this motion in the interests of justice: Cowley v. Skyjack Inc., 2021 ONSC 1303 at para 22. Accordingly, leave is granted for the Plaintiff to bring this motion.
Objection to Portions of the Defendant’s Responding Affidavit
[30] The Plaintiff objects to paragraphs 48 and 49 of the affidavit sworn by Adam R. Giel on October 20, 2021 in support of the Defendant’s response to the motion, which state the following:
[48] I verily believe the Defendant has conducted this litigation and made strategic decisions in accordance with the fact that this action is to be tried by a jury. I verily believe the Defendant would be prejudiced if his Jury Notice was struck at this late juncture.
[49] I verily believe a paramount issue in this case is the Plaintiff’s credibility. I verily believe conducting a virtual trial would prejudice the Defendant. I verily believe proceeding with a virtual trial would inhibit the court’s ability to access credibility of witnesses and adjudicate this matter fairly on its merits.
[31] Rule 25.11 sets out the basis for the Court to strike all or part of an affidavit:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or a vexatious; or
(c) is an abuse of the process of the court.
[32] Rule 4.06(2) generally requires an affiant to have personal knowledge of matters to which the affiant deposes, except where the Rules provide otherwise. Rule 39.01(4) allows an affidavit used on a motion to contain statements of an affiant’s information and belief:
(4) An affidavit for use of a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[33] The Plaintiff submits that the impugned paragraphs of Mr. Giel’s affidavit fail to satisfy the requirements of Rule 39.01(4) by not identifying the source of the information for his belief that the Defendant will be prejudiced if his jury notice is struck and the action is tried virtually by video. In response, the Defendant submits that Mr. Giel is a lawyer who was retained to defend the action and that paras 48 and 49 of his affidavit are based on his direct knowledge of the matters at issue, including the Defendant’s litigation strategy. To this end, Mr. Giel attests to the following at para 2 of his affidavit:
[2] The matters deposed to in this Affidavit are within my knowledge unless otherwise stated. The matters deposed to that are not within my knowledge have been derived from third parties or a review of documents and in each of such cases, the source of the information is identified and I verily believe such matters to be true. True copies of all exhibits referred to herein are attached and tabbed accordingly.
[34] When cross-examined on his affidavit, Mr. Giel deposed that the defence of this action has been conducted with an expectation that the Defendant, who served a jury notice about 13 years ago, would have the action tried by a jury.[^2] Mr. Giel further explained on cross-examination that he was unaware of any personal injury actions that have been tried by a judge who assessed the credibility of witnesses during a video hearing.[^3]
[35] Having regard to para 2 of Mr. Giel’s affidavit which recites a general statement to address the requirements of Rules 4.06(2) and 39.01(4), respectively, and given Mr. Giel’s role as defence counsel with direct knowledge of the matters at issue, I am persuaded that paras 48 and 49 of his affidavit are compliant with the requirements of Rule 39.01(4). That being said, I shall discuss the weight to be given to this evidence later in these reasons.
Legal Principles for Striking a Jury Notice
[36] There is no real dispute regarding the law for striking a jury notice.
[37] It is settled law that 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: King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] SCR 528 at 533; Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 OR (3d) 660 (CA) at para 36, leave to appeal refused [2006] SCCA No 496. However, the right to a civil jury trial is qualified and subject to the court’s authority to order the action to proceed without a jury: ss. 108(3) of the Courts of Justice Act, RSO 1990, c C43; Rule 47.02; Cowles at paras 37-39. The Court of Appeal has affirmed these principles for striking a jury notice in the context of the ongoing COVID-19 pandemic: Louis v. Poitras, 2021 ONCA 49 at para 17.
[38] A moving party seeking to strike a jury notice has the onus to show 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. Ultimately, the court must decide whether the moving party has shown that justice to the parties will be better served by discharging the jury: Cowles at para 37. The discretion to strike a jury notice is rather broad: Cowles at para 38; Louis at para 17.
[39] In determining whether justice is served by striking a jury notice, the following factors have been considered: i) the resources available to the court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication; (iv) the age of the case; and (v) the history of adjournments: Johnson v. Brielmayer, 2021 ONSC 1245 at para 32; Natario v. Rodrigues, 2021 ONSC 4156 at para 33; Rumney v. Nelson, 2021 ONSC 5632 at para 26.
[40] The paramount objective of the civil justice system is to provide the means by which a dispute between the parties may be resolved in the most just manner possible: Belton v. Spencer, 2020 ONCA 623 at para 26, citing Cowles at para 30. The right to a civil jury trial is fundamental but not absolute and may yield to practicality: Girao v. Cunningham, 2020 ONCA 260 at para 171.
[41] Local conditions necessarily impact the choice of effective solutions for the delivery of timely civil justice. In light of this, the court will consider local conditions in exercising its discretion to ensure the timely delivery of justice: Louis at para 3. In McKee v. Marroquin, 2021 ONSC 5400 at paras 35-36, Emery J. discussed a couple of recent Central West Region decisions in which jury notices were conditionally struck due to the improbability of civil jury trials being heard at the Brampton court in timely fashion: Mohan v. Howard, 2021 ONSC 2064; De Dieu v. Taylor, 2021 ONSC 3654; see also Cueto v. De Los Reyes, Ontario Superior Court of Justice, CV-16-5515, April 1, 2021(unreported).
[42] The ongoing COVID-19 pandemic has created an unprecedented crisis for the civil justice system which has prompted a call for no less than a cultural shift to ensure justice for litigants and preserve the integrity of the justice system:
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 Hyrniak 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. [Emphasis added]
Louis at paras 1 and 2.[^4]
Analysis
[43] As set out below, I find that the Defendant’s jury notice should be conditionally struck in the interests of justice to allow the trial to proceed on a judge alone basis to avoid further delay, unless the court is able to accommodate a jury trial when this case is called to trial. In reaching this decision, I have considered, among other things, the current conditions at the Brampton court, and the comments in Mohan, Cueto, De Dieu and McKee regarding the availability of civil jury trials in Brampton.
[44] The parties are now ready to proceed to trial.
[45] During a recent Assignment Court held on December 6, 2021, Ricchetti RSJ advised that the court will be unable to conduct civil jury trials in Brampton in the January or May 2022 sittings. As discussed below, prevailing local conditions make it unlikely that civil jury trials will resume in Brampton until the January 2024 sittings at the earliest. This means that the parties would likely face a wait of roughly 2 years before a civil jury trial of this action realistically could be reached. In contrast, there is a reasonable likelihood that this case may be tried by judge alone in either the January 2022 or May 2022 sittings if the jury notice is struck.
[46] As Chown J. noted in De Dieu at para 14, criminal jury trials are now taking precedence in Brampton: see also McKee at paras 35 and 42. Most criminal jury trials were unavoidably adjourned during the COVID-19 pandemic which has created a serious backlog of jury cases that draw on the same limited pool of judicial and court resources: Cueto at p. 3; McKee at para 43. Moreover, as Emery J. stated in McKee at paras 38-40, public health protocols, including physical distancing rules, introduced necessary modifications to jury selection procedures and courtroom configurations that created additional logistical demands and resource constraints which further impacted the court’s ability to conduct jury trials.
[47] I am satisfied that the Plaintiff will be prejudiced by further delays in getting this action to trial. The Plaintiff has shown that further delays will irreparably erode his claim for income loss damages by virtue of ss. 267.5(1) of the Insurance Act, RSO 1990, c. I.8, which limits his damages for income loss “before the trial of the action” to 70% of the gross income lost. In addition, the statutory deductible on general damages under ss. 267.5(7) of the Insurance Act will continue to increase annually until trial and thereby further prejudice his claim for damages. The Defendant submits that the Plaintiff’s claim of delay-related prejudice is based on unproven claims that are speculative, if not illusory given the surveillance of his earlier purported return to employment. Nevertheless, a delay in obtaining a civil jury trial date can, by itself, constitute prejudice to justify striking a jury notice: Louis at para 22. Having regard to the income loss limit under ss. 267.5(1) and the increasing statutory deductible under ss. 267.5(7), I am satisfied that delaying the trial of this action will irreparably erode the Plaintiff’s claims and potentially cause him non-compensable prejudice, depending on the findings at trial. Accordingly, I find that these factors favour striking the jury notice: MacKenzie v. Pallister, 2021 ONSC 1840 at para 12; Louis v. Poitras, 2020 ONCA 815 at para 57.
[48] I am not persuaded that the Defendant has offered any real evidence to show that striking his jury notice will cause him any prejudice. In my view, the vague and nonspecific references in his counsel’s responding affidavit to “trial strategy” decisions purportedly made in accordance with having a jury trial are not sufficient to show prejudice on this motion. In this regard, I share the comments made by Sanfilippo J. in Johnson at para 51:
The Defendant did not tender any evidence of detriment that would be sustained if his jury notice were struck, apart from the loss of his election that the trial proceed with a jury. In oral submission, the Defendant stated that he would sustain detriment because he has prepared this action as a jury trial and would now have to convert his preparation for a non-jury trial. To the extent that the Defendant suggested different preparation for a non-jury trial than a jury trial, it was not particularized or substantiated. A trial judge may dismiss a jury before beginning to hear evidence and the trial would be expected to proceed without interruption to re-cast litigation preparation: Cowles, at para. 71.
See also Ismail v. Fleming, 2021 ONSC 1425 at para 26; Tomson v. Jackson, 2021 ONSC 3422 at paras 74-77; Natario at paras 39-40.
[49] Similarly, I am not persuaded by Defendant counsel’s evidence that a jury trial is necessary to avoid prejudicing the Defendant’s case because the Plaintiff’s credibility will be in issue at trial. On this point, I share the following statement made by Corthorn J. in Tomson at para 78:
I find that [the Defendant counsel’s] evidence, uncontroverted as it is, amounts to a broad assertion of prejudice and fails to address the specific litigation disadvantage of the kind required in an effort to tip the balance in favour of maintaining the jury notice. I am not satisfied that the identification of this action as a chronic pain case and/or as one which [the Defendant] and his counsel anticipate will turn on the assessment of [the Plaintiff’s] credibility and reliability as a witness amounts to the requisite specific litigation disadvantage.
See also Johnson at para 52; Natario at para 41.
[50] This is an old action. The subject motor vehicle accident occurred on June 19, 2008, well over thirteen years ago. Both parties spent considerable time and effort to progress the action to this point. Regrettably, various issues arose over the course of the litigation which delayed a trial of the action until it came before a jury during the January 2020 sittings. Shorty after the trial began, a mistrial was granted due to the Plaintiff’s conduct that involved a health crisis. Following the mistrial, the Plaintiff unsuccessfully sought leave to appeal the decision on costs for the mistrial and two other pre-trial motion decisions. The parties then attended Assignment Court on February 1, 2021 when the trial was re-scheduled for the January 2022 sittings.
[51] The Defendant faults the Plaintiff for delaying this action. Specifically, the Defendant blames the Plaintiff for: a) the initial delay in setting the action down for trial; b) scuttling a prior trial date in January 2019 due to his intransigence with a defence psychiatric examination that he ultimately was ordered to attend; c) adjourning a subsequent May 2019 trial date; and d) causing the January 2020 mistrial. Given this litigation history, the Defendant submits that the Plaintiff is not entitled to now argue that the jury notice should be struck to avoid any further delays of this action. Respectfully, I am not persuaded by the Defendant’s submissions.
[52] After both parties took steps to progress the action, the litigation seemed to stall for reasons that are unclear. The primary responsibility for the progress of an action lies with the Plaintiff: Prescott v. Barbon, 2018 ONCA 504 at para 30; MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28 at para 33; Wellwood v. Ontario Provincial Police, 2010 ONCA 386 at para 48. However, the Defendant’s conduct in this action is also a relevant factor for the court to consider in exercising its discretion on this motion: Johnson at para 40, citing Aguas v. Rivard Estate, 2011 ONCA 494 at para 19; Tomson v. Jackson, 2021 ONSC 3422 at para 44.
[53] The Defendant is critical of the Plaintiff’s inaction from the time the trial record was served in 2012 until pre-trial conferences were attended in 2016. However, the Defendant’s argument overlooks his own decision to not seek an earlier pre-trial conference or otherwise move the action forward. Having not explained his inaction during this period, the Defendant’s lack of urgency undercuts his criticism of the Plaintiff’s conduct. The Defendant later consented to the Plaintiff’s motion on September 22, 2016 to restore the action to the trial list after it was struck. In addition, the Defendant waited over a year after obtaining surveillance before bringing a motion to further examine the Plaintiff on his ability to be employed.[^5]
[54] The Defendant claims that the Plaintiff caused unnecessary delay by refusing to re-attend a new defence psychiatric assessment with Dr. Notkin after Dr. Furlong became unable to testify. On balance, however, I do not find that the Plaintiff acted improperly. Although the Plaintiff did not prevail on the motion, his concerns regarding Dr. Notkin’s assessment were not unreasonable. Notably, the motion judge was critical of the Defendant’s delay in moving to substitute his expert psychiatrist, and gave the Plaintiff leave to adjourn the trial to the May 2019 if additional time was needed to respond to Dr. Notkin’s report.[^6] The Plaintiff later moved to further adjourn the trial to the January 2020 sittings after his responding psychiatric reports were delayed.[^7]
[55] The Defendant blames the Plaintiff for deliberately causing the January 2020 mistrial and submits that a jury trial of this action would now be completed but for the Plaintiff’s misconduct. The Defendant also believes that the Plaintiff’s conduct was likely influenced by his failed motion at the outset of trial to strike the jury or to have a mistrial due to his concerns with the Defendant’s opening statement. However, I am persuaded that the Plaintiff’s conduct which caused the mistrial arose due to illness. Before starting his evidence on January 17, 2020, the Plaintiff advised the court, through his counsel, that he was unwell. He then briefly took the stand to answer a few questions so that the alternate jurors could be released, and was scheduled to resume his evidence on January 22, 2020. When recalled to the witness stand on January 22, 2020, the Plaintiff collapsed in front of the jury while bleeding onto the ground. Emergency responders took him by ambulance to hospital where he was involuntarily admitted for a mental health assessment. Hospital records trace the Plaintiff’s history of self-harm and indicate that he lacerated his left wrist while sitting in the gallery of the court that day because he felt overwhelmed. In the circumstances, I am not inclined to attribute the January 2020 mistrial to any nefarious conduct by the Plaintiff in determining this motion.
[56] Ultimately, the Defendant submits that the court should now tolerate some further delay given the earlier significant delay in this litigation. I reject this submission and share the statements of Sanfilippo J. in Johnson at paras 41-43:
[41] The Defendant’s submission, distilled to its core, was that since there has been significant delay in advancing this action to trial already, more delay is acceptable. I cannot accept this submission. First, the Defendant had processes available to address delay in advancing this action to trial in the pre-trial stage. Second, the Defendant can make submissions at trial on the issue of delay, and seek relief, as it considers advisable. But most importantly, any further delay in advancing this action to trial is antithetical to the objective of timely adjudication.
[42] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 29, the Supreme Court of Canada emphasized the need to change a “culture of delay and complacency” towards the criminal justice system. The starting point was to ensure timeliness of adjudication as “one measure of the health of a justice system”: Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590, at para. 9. This follows the Supreme Court’s earlier statement in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 2, that there must be “timely and affordable access to the civil justice system.” The Court of Appeal has stated that the principles expressed in Jordan apply equally to the Ontario civil justice system”: Southwestern, at para. 9.
[43] The past delay in advancing this action to adjudication cannot be condoned, but does not diminish the objective that any history of delay not be further compounded. [Emphasis added]
[57] In my view, allowing further delay in bringing this action to trial would be contrary to the raison d’être of the civil justice system to facilitate timely adjudication and the most expeditious determination of every civil proceeding on its merits, and is inconsistent with the culture shift required to preserve our civil justice system: Rule 1.04(1); Louis at paras 1-2 and 22.
Outcome
[58] A party’s right to a jury trial is not absolute, and is subject to the overriding interests of the administration of justice and issues of practicality: Louis at para 24; Girao at para 171.
[59] Based on the foregoing, I find that the Plaintiff has shown that the Defendant’s right to a jury trial in this matter should yield to allow justice to be administered in timely fashion. To this end, I am persuaded that the approach taken by Baltman J. in Mohan to conditionally strike the jury notice is appropriate to apply in this case. As Baltman J. aptly noted in Mohan at para 16, this “middle ground” approach achieves the tandem goals of avoiding further delay caused by the pandemic in bringing the matter to trial while protecting the statutory and substantive right to a trial by jury in the event that civil jury trials are resumed when the trial in this action is reached: see also De Dieu at paras 10-11; McKee at para 36.
[60] Accordingly, the motion is granted and following is ordered:
a. The Plaintiff is granted leave to bring this motion to strike the Defendant’s jury notice;
b. This matter shall remain on the list for the upcoming January 2022 trial sittings in Brampton;
c. Should this matter be reached during the January 2022 sittings, the jury notice shall be struck to allow this matter to proceed before a judge alone;
d. Should this matter not be reached during the January 2022 sittings for any reason, then it shall be set by the trial coordinator’s office or by an assignment court for the earliest available trial date in the normal course for matters that were not reached. If the court is able to accommodate a jury trial at that later set date or sittings with a jury, then the trial shall proceed as a jury trial. If the court cannot accommodate a jury trial on that later set date or sittings, then the jury notice shall be struck and the trial shall proceed before a judge alone.
e. This order is without prejudice to the Plaintiff’s ability to bring a further motion at any time to strike the jury notice if the trial does not proceed before a judge alone.
[61] If the parties are unable resolve the issue of costs for this motion, the Plaintiff may deliver costs submissions of up to 2 pages (excluding any costs outline or offer to settle) within 20 days, and the Defendant may deliver responding submissions on the same terms within a further 20 days. Reply submissions may not be delivered without leave.
Doi J.
Date: December 10, 2021
COURT FILE NO.: CV-13-4879
DATE: 2021 12 10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rashid Ali Syed, Plaintiff
AND:
Derek James Petrie, Defendant
BEFORE: DOI J.
COUNSEL: Gerry Antman, for the Plaintiff
Lori Visconti, for the Defendant
ENDORSEMENT
Doi J.
DATE: December 10, 2021
[^1]: Various tranches of surveillance reports and materials were produced on February 2, 2016, May 17, 2017, July 12, 2018 and September 11, 2018.
[^2]: Transcript of Mr. Giel’s cross-examination on October 29, 2021 at pp. 28-29.
[^3]: Ibid at pp. 32-34.
[^4]: In prescient remarks, Myers J. in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186 at para 32 made similar observations about the civil justice system that inform my analysis on this motion:
The court must react to the realities facing civil litigants and the civil justice system … [S]ystemic realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term. [Emphasis added]
[^5]: On February 22, 2018, the Defendant moved for a further examination for discovery and answers to outstanding undertakings and refusals. On June 25, 2018, Barnes J. decided the motion by ordering the Plaintiff to attend a further discovery and to answer some but not all of the refusals. A further discovery of the Plaintiff was conducted on September 12 and 26, 2018. Although the Defendant refers to these events in the chronology for the litigation, I am not persuaded that any of these events necessarily caused the trial to be delayed. In any event, it is unclear why the Defendant apparently waited for over a year to raise the surveillance before seeking to further examine the Plaintiff on his ability to be employed.
[^6]: On November 30, 2018, Dr. Notkin gave a supplemental expert psychiatric report after the Defendant asked him to consider additional materials, namely the defence expert medical reports prepared by Dr. Clark, a physiatrist, and Dr. Zakzanis, a neuropsychologist, and the surveillance footage of the Plaintiff.
[^7]: Due to language issues, the Plaintiff took until November 2018 to retain a psychiatrist and schedule an assessment that was moved from March 25, 2019 to April 15, 2019 due to illness. On April 12, 2019, the Plaintiff asked to further adjourn the trial to the next January 2020 sittings as he had not yet received his own expert psychiatrist’s report. After the Defendant opposed the adjournment request, the Plaintiff brought a motion to adjourn the trial to the January 2020 sittings, which Shaw J. granted in her Endorsement dated May 2, 2019. Although the record on this point is rather limited, Shaw J. observed that both parties played a role in a number of delays in this proceeding before awarding the defence its costs for the adjournment motion and trial preparation costs thrown away. On September 27, 2019, the Plaintiff served a psychiatric report prepared by his expert, Dr. Shahmalek, in response to Dr. Notkin’s defence expert reports. On October 15, 2021, the Plaintiff served a further report prepared by another expert psychiatrist, Dr. Gerber.