Court File and Parties

COURT FILE NO.: CV-16-5017-0000

DATE: 20211220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JANE FRASER AND CLINT FRASER Plaintiffs

AND: VISHAUL PERSAUD Defendant

BEFORE: Ricchetti, RSJ.

COUNSEL: A. Kwinter for the Plaintiff - akwinter@singerkwinter.com P. Rollo for the Defendant - peter.rollo@aviva.com D. Reisler for the Defendant - daniel.reisler@aviva.com

HEARD: December 16, 2021 via videoconference

ENDORSEMENT

[1] This is a Motor Vehicle Accident case. The accident occurred in 2015. The Plaintiffs’ vehicle was heading westbound. The Plaintiff, Jane Fraser was driving. The Defendant’s vehicle was exiting a plaza making a left turn, crossing in front of the Plaintiffs’ vehicle’s path. The accident occurred.

[2] Threshold, liability and damages are all disputed by the Defendant.

[3] This matter was originally scheduled to be heard during the May 2021 Blitz sittings in Brampton. However, due to the pandemic, the trial did not proceed and was re-scheduled.

[4] This matter is scheduled for a 4-week trial during the January 2022 Blitz sittings in Brampton.

[5] On December 6, 2021, a special Assignment Court was held for trials to be heard during the January 2022 Blitz sittings. I advised counsel and parties:

a) No civil jury trials would be proceeding during the January 2022 Blitz sittings,

b) Some in-person trials might be proceeding during the January 2022 Blitz sittings but that was unlikely given the serious lack of courtrooms arising from multiple courtrooms being required for criminal jury trials, the closure of the Halton courthouse with matters being accommodated in Brampton, and staff shortages.

c) Virtual civil trials were much more likely to proceed during the January 2022 Blitz sittings. Counsel or parties could arrange for a conference hearing if there was a disagreement on whether the trial should proceed virtually. Otherwise, written confirmation of the consent of all parties would suffice.

d) Counsel were advised that I was now scheduling trials for the January 2024 Blitz sittings, and even that sitting was getting close to capacity. There were no earlier dates available for trials estimated to be 5 days or longer.

[6] This matter had its Jury Notice conditionally struck on July 15, 2021. Conditionally, meaning that when the trial is called to commence, if civil jury trials are not proceeding to be heard, the trial would proceed without a jury. On the other hand, if at the time the trial is called to commence, civil jury trials are proceeding to be heard, then the matter would proceed with a jury. Accordingly, this was scheduled to proceed without a jury in January 2022.

[7] At a pre-trial, it was estimated that the Plaintiffs would each testify taking 1 ½ day each. I note that the Plaintiff Jane Fraser was in the Plaintiff vehicle. The Plaintiff Clint Fraser brings an FLA claim. Essentially, the balance of the Plaintiffs’ witnesses are doctors (9) or damage related witnesses (4). Lastly, there are 6 short lay witnesses on the impact of the accident on the Plaintiffs.

[8] As for the Defendant’s witnesses, there are three. It was estimated that the Defendant’s evidence would take ½ day and there would be two other doctors testifying - ½ day each.

[9] The Plaintiff and Defence counsel could not agree that the matter proceed virtually. The Plaintiffs’ counsel, seeing that there would be a lengthy delay if the trial did not proceed in January 2022, obtained a conference hearing date before this court to seek an order that the trial proceed virtually.

[10] The hearing was scheduled for December 16, 2021.

[11] In advance of the hearing, Mr. Rollo, on behalf of the Defendant, provided written submissions dated December 15, 2021 on why the trial should proceed in person. Mr. Rollo stated there was “disputed subjective complaints” and that credibility and reliability were at issue. There were no specific details of how these concerns applied to the circumstances of this case.

[12] In advance of the hearing, Mr. Reisler, also on behalf of the Defendant, filed a Notice of Objection to the trial proceeding in person. He too points to “credibility and demeanor” as requiring an in-person trial without providing any specific details as to how this applies to this case.

[13] The hearing proceeded.

[14] Counsel were advised that, considering the Omicron variant, the court was assessing what and how any matters would be proceeding during the January 2022 Blitz sittings. One potential outcome was that civil matters would not proceed in-person.

[15] Mr. Kwinter submitted that he was 77 years old and wanted to avoid the risk of attending in person. Further, one of the Plaintiffs, Jane Fraser, is a nurse who is currently 60 years old. The matter was now 6 years old and a further 2-year delay was not acceptable and not in the interests of justice.

[16] Mr. Rollo expressed that “to the extent possible” he wanted the trial to proceed in person. He cited that there were credibility issues and a large damage claimed. Again, Mr. Rollo provide no details why the credibility issues are unique or cannot properly be assessed in a virtual hearing.

[17] Mr. Reisler, I assume wanting a second opportunity to make submissions for the same Defendant, reiterated that credibility was key in this case and that it would be “highly prejudicial” that the trial proceed virtually.

[18] In light of the current issues involving the pandemic, on December 17, 2021, Chief Justice Morawetz of the Superior Court of Justice for Ontario, issued a Notice to the Profession and Public, essentially directing that all civil matters proceed virtually until February 7, 2021.

[19] Now, this matter cannot proceed in person in January 2022.

[20] There are two options. Proceed virtually or adjourn this matter to a January 2024 sitting.

[21] I accept the principles set out by RSJ Thomas in Gagnier v. Burns, 2021 ONSC 1971:

[31] Rule 1.04(1) of the Rules of Civil Procedure provides a general principle that: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[32] In November 2020, an amendment to r. 1.08 allowed for a trial by video conference. By Notices to the Profession and Public Regarding Court Proceedings, dated November 21, 2020 and January 13, 2021, Chief Justice Morawetz strongly encouraged the use of virtual hearings wherever possible.

[33] In para. 38 of Cowles, Justice O’Connor provides the simple principle that must drive this analysis:

[38] While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

[34] In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal has provided clear appellate guidance in the application of this principle to the reality of Ontario’s pandemic-burdened trial courts:

[1] 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.

[35] Centres of the administration of justice in this Province are not created equally. There are disparities in resources both physical and human. There are differences in caseloads. (Louis, para. 26):

[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75. …

[36] The Court of Appeal applauded the efforts of Beaudoin J. in Louis for creating a trial schedule that provided a practical solution in keeping with the principle directed by r. 1.04(1). (Louis, para. 33).

[22] There is no dispute that the court has the jurisdiction to order that the trial proceed in person, subject to any further direction by the trial judge.

[23] In this case, the court must consider the factors favouring the Defendant’s request for an in-person trial and the Plaintiffs’ request for a virtual trial. If the balance favours proceeding with a virtual trial, then this court must determine whether justice can be served by proceeding with the trial virtually.

[24] There are numerous factors in favour of a virtual trial:

a) Mr. Kwinter’s obvious concern and desire to avoid entering a courtroom for an in-person trial, given his age, the impact of COVID on older persons, and the current rapid spread of Omicron.

b) This trial has already been adjourned once due to the pandemic. The future of in-person trials remains uncertain. No one would have thought that the pandemic would continue to cause courtroom shortages, staff shortages, huge backlogs to the administration of justice almost 2 years after the pandemic started.

c) The circumstances in Brampton are that this matter will have to be delayed at least 2 years before it might be reached. And there is never a guarantee that all trials scheduled for a sitting are actually heard in that sitting. Unless trials are heard virtually, where appropriate, the backlog will continue to grow.

d) The events occurred 6 years ago. Memories fade. Credibility is harder to assess the further the events testified about are in the past.

[25] As for the factors against a virtual trial, there really are none.

[26] The Defendant makes bald statements of credibility. But many trials have proceeded over the past 20 months virtually, including very serious criminal trials, very serious family trials and other civil trials. Besides, as I stated above, a further lengthy delay will mean that the events at issue will be at least 8-9 years old. Any loss to assessing credibility virtually (and I am not persuaded there are any) is easily overcome by having the “fresher” memory of the witnesses.

[27] Most of the witnesses are doctors or experts who have provided written reports. Credibility becomes less of an issue where expert reports are filed.

[28] The Defendant suggests that demeanor is important in assessing credibility. While demeanor may be a factor, it is a minor factor in assessing a witness’ credibility. Besides, the witness can be seen virtually, and in many cases, it is easier and better for a judge to observe a witness virtually than in a witness box ahead of and lower than the Judge’s dais.

[29] The Defendant wanting to proceed in-person citing vague credibility issues as the reason, also ignores the current situation the courts find themselves in.

[30] Lastly, I reject the submission that, since this action involves a large damage claim, this is a factor in favor of an in-person trial. As I stated, criminal trials are routinely heard virtually, and they involve a person’s freedom. And family trials where children’s future lives are decided and the finances of the parties (sometimes involving large amounts) also proceed virtually.

[31] Proceeding as the courts have done in the past to have in-person trials, is not a basis to reject virtual hearings, and certainly not based on vague allegations that credibility can better be assessed in-person rather than virtually.

[32] I also consider that the Defendant wanted a jury trial, was unsuccessful in defending the motion to strike the Jury Notice and now sees an opportunity to delay this trial for several years and hopefully, regain a trial with a jury.

[33] I am satisfied that this matter should proceed virtually if called during the January 2022 sittings and that the issues can be decided justly. This, of course, is subject to any direction by the trial judge.

Ricchetti, RSJ

Date: December 20, 2021