Reati v. Elzainy et al., 2021 ONSC 8273
COURT FILE NO.: 2528/16
DATE: 2021-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fausto Reati Plaintiff
– and –
Manal Elzainy, Hisam Ibrahim and Canada Honda Finance Defendants
COUNSEL:
T. Haddy, for the Plaintiff
M. Renwick, for the Defendants
HEARD: December 10, 2021
BEFORE: McArthur J.
INTRODUCTION
[1] This motion once again revisits the issue to strike the jury notice in London. The trial is scheduled for February 2022.
[2] There are many decisions in the last twelve months by the court in this jurisdiction in particular. These cases need not be listed or reviewed here. These were referenced by both counsel in their materials.
[3] In most cases, the jury notices have been provisionally struck over the last 11 months. The Ontario Court of Appeal released its decision throughout this period. We remain in the grips of the Covid-19 Pandemic with the Omicron variant on a substantial rise in cases in Ontario and in Middlesex County.
[4] The plaintiff and defendant both ascribe delays to each other: the defendant failing to attend a discovery that was rescheduled 16 months later; the plaintiff not advancing the claim for approximately two years and delayed in providing some relevant records.
[5] The defendant also submits that there is not the extent of prejudice in other cases since the plaintiff was retired at the time of the accident and past income loss is not applicable. The defendant also submits there has not been any prior adjournment of the trial of this matter like other cases and that the vaccination rate in London is high, the government plan is to resume full operations by March of 2022 and there have been no official announcements about the Omicron variant.
[6] In this case the jury notice should be struck provisionally for the following reasons.
GENERAL BACKGROUND
[7] The plaintiff was in a motor vehicle collision on October 29, 2014. Injuries were sustained.
[8] A statement of claim was issued on November 23, 2016. A statement of defence and jury notice were filed on January 3, 2017. Discoveries eventually were completed, and the trial record was filed. The case was set for a three-week jury trial commencing February 22, 2022.
[9] A pretrial conference was conducted on October 19, 2021 at which time leave was granted to bring this motion.
[10] As a result of the Covid-19 pandemic, court operations were suspended since March 17, 2020 and civil jury sittings were incrementally suspended since particularly here in London. There have been nor are currently any civil jury trials being conducted in London.
[11] The Omicron variant’s community spread is described publicly as a freight train barrelling at us. Province-wide restrictions have again been publicly mentioned by the politicians at all levels.
STRIKING THE JURY – THE LAW
[12] In Louis v. Poitras, 2021 ONCA 49, the Ontario Court of Appeal restored the order of the motions court judge to strike the jury notice. Justice Hourigan observed that, in view of procedural reforms, electronic filings and electronic hearings, “our courts are charged with the management of a civil justice system that is being overwhelmed’, the “civil justice system faces an unprecedented crisis” and “among other challenges, the Covid-19 pandemic has significantly reduced the availability of courtrooms.”
[13] He also approved of the Superior Court’s efforts to find creative ways to ensure that the parties get their day in court in a timely manner. It was also recognized there is no single province-wide answer to the challenge in delivering timely justice and local conditions will necessarily impact the choice of effective solutions.
[14] Trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. Neither party should have the unfettered right to determine the mode of trial. The paramount objective is to provide the means by which a dispute between parties can be resolved in the most just manner possible. The application of this test should not diminish the important role that juries play in the administration of civil justice
[15] Other notable directions and indications from Louis v. Poitras include:
a. The court should approach the case practically, cognizant of its responsibility to the parties and the system to move cases forward and offer timely service;
b. Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out the jury notice
c. The court may look beyond the parties’ interests and consider the broader context of the civil system during the pandemic;
d. The right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality;
e. The decision should give consideration of the availability of resources in the local area and the appropriate approaches in the circumstances of the case.
ANALYSIS
[16] The Covid-19 pandemic continues. The recent Omicron variant is on the rise in addition to the management of the Delta variant. The Omicron variant is publicly reported to be four to eight times more contagious than the Delta variant. Omicron is on the verge to become the dominant variant in Ontario. Despite vaccinations, the current increases of infection of Covid-19 in Ontario are worrisome with levels approaching those not seen since at least May of this year.
[17] In submissions, counsel for defendant suggested that the court continue to wait and see. He expressed an optimistic picture that, perhaps by March or April 2022, the public health situation could be substantially improved and jury cases resume. Hope may breed eternal but, given our collective public health experience over almost two years, such wishful thinking is misplaced and unrealistic, particularly in the next 2 to 4 months.
[18] The incident given rise to this action is now over 7 years ago. Timely justice is important and necessary not only to the parties but to other members of the public. There is prejudice in almost every case that includes additional preparation time and costs thrown away. In addition, there are other cases in the overall system that will require trials. Those other civil cases that follow this case must proceed and will only be backed-up further in the event this case does not proceed.
[19] The right of a party to a jury trial is not lost on this court. Jury trials are and will remain important and serve recognized functions. However, there are times and circumstances where that right must yield to practicalities and realities of Covid-19 epidemic. This certainly is one of them. Justice will be better served the discharge of the jury in this case.
[20] This case does not appear to be complicated and was scheduled before a jury for three weeks. It is a case where a trial can practically, fairly and effectively, be adjudicated on a judge-alone basis.
[21] As of the present time and circumstances, it is most unlikely that a civil jury trials will be heard in London by the spring of 2022 at the earliest.
[22] Criminal jury matters are currently before the Superior Court in London. Given social distancing requirements and other health protocols, only two juries can be accommodated at the same time at the London Court facility. The priority is given to criminal jury and criminal non-jury matters. The criminal case backlog is considerable and now well-into 2022. There is little prospect of civil jury trials in London this February or March.
[23] As a matter of context, no civil jury trials were conducted at all in London in 2020 and throughout 2021.
[24] The administration in London is certainly poised to step into jury matters as facilities and health safety provisions will allow. Criminal jury trials have been held in London in September of 2020 and again this fall until the recent time.
[25] Non-jury civil trials have successfully been conducted and completed virtually in London throughout periods in both 2020 and 2021.
[26] The Superior Courts and the Ontario Court of Justice continue to find practical ways to operate, adapt and deliver services to the various communities safely and effectively. Technology plays an important role and is critical to the court’s future efforts to expand service to the public.
[27] The courts are committed to provide timely, effective and fair justice. Priority is given to criminal cases and family cases and this unfortunately creates inherent systemic delays for civil matters. However, to wait and see in the circumstances of this pandemic simply is not practical. Little to nothing will be gained by waiting and seeing what may happen. Any further period will continue the delay and increase the prejudicial effects on the plaintiff. The parties are otherwise ready to proceed to trial.
[28] This court’s responsibility to the parties and the overall administration of justice is to provide timely practical solutions and action that is effective, fair and safe to the health of all participants.
CONCLUSION
[29] The motion to strike the defendant’s jury notice is granted.
[30] There shall be an order that the defendants’ jury notice is provisionally struck and the case will be placed on the non-jury trial list to commence on February 22, 2022. The jury notice shall be restored and the matter restored to the jury trial list without prejudice to the plaintiff’s right to renew the motion if a trial is not reached in February or March, 2022.
[31] The defendant shall pay the plaintiff’s costs in the amount of $2,979.08 payable forthwith.
Justice M. D. McArthur
Released: December 15, 2021
Reati v. Elzainy et al., 2021 ONSC 8273
COURT FILE NO.: 2528/16
DATE: 2021-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Reati Plaintiffs
– and –
Elzainy et al. Defendants
REASONS FOR JUDGMENT
McArthur J.
Released: December 15, 2021