Court File and Parties
COURT FILE NO.: CV-12-463106 DATE: 20220204 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NAN HUI PAK AND: HOLT RENFREW and COMPANY LIMITED, YORKDALE SHOPPING CENTRE and/or YORKDALE SHOPPING CENTRE HOLDINGS INC., OXFORD PROPERTIES GROUP INC., OMERS REALTY COPORATION and 1331430 ONTARIO INC.
BEFORE: Justice A. Ramsay
COUNSEL: Shen Subramaniam, for the Plaintiff Deanna M. Stea, for the Defendants
HEARD: February 4, 2022
Endorsement
[1] This occupier’s liability action has been outstanding for over 11 years. The only affidavits before me on behalf of the plaintiff are from Mr. Longo and Mr. Pius. I have not considered the affidavit of Mr. Pius for the reasons given orally.
[2] Be that as it may, the plaintiff, in moving for an order to strike the defendants’ jury notice, does so primarily on the basis that delay, in and of itself, constitutes prejudice.
[3] The defendants concede that the plaintiff meets the test for leave to bring this motion. However, the defendants argue that this motion is premature given the reopening of the economy [1], the fact that there has been jury trials in Toronto as late as November 2021, before the current suspension, the pending re-opening, and the lack of any evidence from the plaintiff on the issue of prejudice to her physically, psychologically or financially.
[4] Both sides made submissions about the surveillance evidence and both parties appear to believe that the evidence favours their side. Counsel for the defendants raised, however, the fact that this is a chronic pain case and the ability of the judge and jury to observe the plaintiff and to assess credibility would be lost with a virtual trial.
[5] There is no evidence from the plaintiff regarding whether she is working. Counsel for the plaintiff does submit however that she is not working.
[6] From the recitation of the chronology, I agree that there has been significant delay in getting this matter to trial. The incident occurred on September 10, 2010. The action was commenced in September 2012. The trial record was delivered in March 2016 and, since then, the case has been up three times for trials: June 2018, and on the June 2020 and May 2021 sittings. The June 2018 adjournment was not due to the fault of either party – the plaintiff’s former lawyer passed away.
[7] While I agree with counsel for the defendants that the lack of an affidavit from the plaintiff on the issue of prejudice is problematic, it is not insurmountable in this case. The plaintiff is relying on delay, in and of itself, the fading of memories of witnesses, the number of adjournments of the trials, increased cost for preparing for trial and, the fact that plaintiff’s counsel both have elderly parents. I accept the defendants’ submissions that counsel for the plaintiff had timely notice of the adjournment of the last two adjournment of the trials so there should be no increased trial preparation time. I have no authority before me to support that the court may consider the personal circumstances of the adverse party’s lawyer to trump the substantive right of the party who delivered a jury notice to a jury trial.
[8] In attempting to balance the interest of justice between the party, I take into account the fact that as of today, the Trial Coordinator has indicated that there are a number of matters on the list for February 28, 2022. Unless those matters settle, then even if the jury notice was struck, I cannot guarantee that this case would be reached on February 28, 2022. On the other hand, there is the off chance that the cases will settle and, if in person hearings are suspended beyond February 28, 2022, that this trial will be delayed further if the jury is retained.
[9] I would anticipate thought that the parties should know by February 21, 2022, whether in person hearings will resume.
[10] In the circumstances, I am prepared to strike the jury notice provisionally until February 21, 2022.
A. Ramsay J. Date: February 4, 2022
Footnotes
[1] Counsel agree judicial notice may be taken of information in the government websites.