SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Annette Dagenais and Richard Dagenais, Plaintiffs
AND
Guy Pellerin and Slavko Concrete Finishing Inc., Defendants
BEFORE: Mr. Justice James McNamara
COUNSEL: William Hunter, for the Plaintiffs
Pat Peloso, for the Defendants
HEARD: November 26, 2021
Endorsement
Introduction:
1This motion was argued before me in Motions Court on November 26, 2021. On the motion the plaintiff’s Annette and Richard Dagenais seek an order that the Jury Notice be struck in this action and that there be an order for severance. Both are strongly opposed by the defendant. The plaintiff’s in the McGlone companion action take no position with relation to the relief sought.
Background facts:
2The litigation arises out of a motor vehicle accident that occurred on January 31, 2013. All appropriate steps were taken to get both cases to the point where they were ready for trial. The trial was set to proceed on March 21, 2021 with a jury. Prior to that date a motion for Summary Judgement was brought to determine whether the then defendant Pellerin’s employer, Slavko Concrete Finishing, was vicariously liable for Pellerin’s negligence. I am informed that the motion was adjourned and rescheduled six times through no fault of the parties. It was eventually heard on November 9, 2020. The trial was adjourned by RSJ Macleod on February 17th, 2021 due to the fact the decision on the summary judgement motion was outstanding. In and around the same date the Covid-19 pandemic was declared. In late March, 2021 the summary judgement decision was released finding the employer vicariously liable.
3On September 15, 2021, in Trial Management Court, a trial date of October 10, 2023 was set for a six week jury trial.
Position of the Parties:
4The plaintiff’s argue with relation to their application to strike the jury notice, that the case is complex and a number of medical experts will need to be called as well as a number of experts relating to claims for loss of income and future care. They argue further that there has been a huge delay in this case and they submit that an earlier date for trial might have been available if it were a judge alone trial. They also point out that their client is suffering ongoing financial consequences as a result of the delay, as a result of the fact that under the insurance act , the plaintiff is limited to a recovery of 70 % of her loss of income to the date of trial. They also submit that a jury trial will take longer to try and that is a relevant consideration.
5The defendant’s argue that while there has undoubtedly been delay, it was through no fault of theirs and non-pandemic related delay is a neutral factor. Further they argue that the plaintiffs have led no evidence that if the case were Judge alone, an earlier date would have been available. They also point out that with a Judge alone trial, it could take up to six months from the end of the trial for a decision to be rendered, whereas a jury verdict is available within hours of the close of the evidence. Next, they submit that striking the jury would be prejudicial to them as from the outset the defence strategy has been based on this being a judge and jury case. As to the argument that the case is too complex for a jury, they submit the case law seems to indicate courts wait and see how the evidence unfolds prior to striking the jury on the basis of complexity of the evidence. Finally, they argue that the employment relationship between the two main plaintiffs raises issues of damages common to both actions.
Analysis:
6I start with the request that the jury be struck. It is well settled by the case law that there is a substantive right to a civil jury trial in our law, subject to the power of the court to order that the action proceed without a jury if a judge is satisfied there are compelling reasons to do so. The test is whether Justice to the parties will be served by trying the case with or without a jury. The court has a significant discretion in the weighing that issue. I am required to balance the substantive right to a jury trial with the broader interests of the administration of justice. To assist in that process the parties need to adduce evidence about the specific circumstances of their case to assist the court with its balancing function. Allegations of prejudice, without supporting evidence, will not suffice.
7In this case there is evidence of delay, but none of it, by admission of the parties, is on either of them. Further, adjournments for reasons unrelated to the pandemic are a neutral factor in the analysis. In my view the delay here, while significant, in all the circumstances is insufficient to tilt the scale in favour of striking the jury.
8The parties now have a trial date. Importantly, however, no evidence was put before the court that an earlier date for a trial the length of this one was available sooner if it were a judge alone case. Furthermore, in this jurisdiction a number of courtrooms on the third floor of the courthouse have been made COVID safe for a jury. A large number of serious criminal jury trials have been heard this fall leading to a hope that civil jury trials may be available sooner than had been expected a few months ago. The court is also working on a procedure whereby jury courtrooms could be offered for a civil jury case should a long criminal trial resolve prior to trial.
9As for the evidence being too complex for a jury, from what I know of the case it is no more complex than many many cases that are dealt with by juries in this jurisdiction on a regular basis. Further I agree with the defence submission that a motion to strike a jury on that basis is more properly brought after the evidence is underway.
10The plaintiff has in my view not put forward any strong evidence of case specific prejudice.
11On the evidence before me I am not satisfied that the plaintiff has discharged its substantial onus to satisfy me that the interests of Justice warrant striking the jury.
12The same plaintiffs’ also bring a motion that their action be severed from the companion action.
13At a case conference on May 15, 2015 Master MacLeod, as he then was, ordered that Rule 77 apply to both these proceedings, and that the actions proceed under common case management on a common timetable. He also indicated the question of trial together would be deferred to a later date. Since the date of that May 15th order no further orders on that subject matter were requested or made until this motion.
14Plaintiff’s counsel submits that if the two sets of plaintiff’s were severed and became two separate actions, the trials would be shorter in total, and while that is probably true, again there is no evidence before the court that a three week trial would have been given an earlier date than a six-week trial. Next, it would be, in my view, inconsistent with the spirit of section 138 of the Courts of Justice Act to have two trials arising out of the same accident heard at different times. The section provides that as far as possible multiplicity of legal proceedings should be avoided. As mentioned earlier I am told by counsel that there is at least one issue common to both cases; the quantification of the loss of income claims being advanced in circumstances where both main plaintiffs work together. Next, the two cases have come through the whole process together leading to the setting of a trial date. Should the cases be severed at this late stage, how would it be determined which case goes first, clearly prejudicing the second action.
15Further there is one insurer and one policy of insurance covering the defendant. On their face the two actions combined would exceed policy limits. How would pro-rating and payment of the damages work until such time as both cases were tried, which could lead to delay and prejudice to one set of plaintiffs or the other.
16I do not accept the submission of counsel that it would be difficult for a jury to follow the evidence as it relates to two separate plaintiffs’ with separate damages and separate experts. That happens regularly in our court’s, for example in a car accident case where two or more members of the same family are injured during a single event, and the evidence on damages for each is different.
17Again, the overriding principle is to avoid multiplicity of proceedings and to facilitate the proper administration of justice. During these times of scarce judicial resources that time must be used as efficiently as possible.
Conclusion:
18In conclusion then both motions are dismissed. If counsel are unable to agree on costs they may submit brief (two pages each), written submissions to scj.assistants@ontario.ca.
Mr. Justice James McNamara
Dated: December 13, 2021
COURT FILE NO.: CV-14-62167
DATE: 2021/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Annette Dagenais and Richard Dagenais, Plaintiffs
AND
Guy Pellerin and Slavko Concrete Finishing Inc., Defendants
BEFORE: Mr. Justice James McNamara
COUNSEL: William Hunter, for the Plaintiffs
Pat Peloso, for the Defendants
ENDORSEMENT
McNamara J.
Released: December 13, 2021