COURT FILE NO.: CV-15-64457 DATE: 2022/04/01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MARIAM ADAM Plaintiff

-and-

JEAN MOISAN, ADD CAPITAL CORP., and TOWEX INC. Defendants

BEFORE: Madam Justice S. Corthorn

COUNSEL: Frank McNally, for the Plaintiff T. Kirk Boyd and Michelle Doody, for the Defendants

HEARD: March 25, 2022 (By Videoconference)

Endorsement

(Plaintiff’s Motion to Strike the Jury Notice)

Introduction

[1] It is more than eight years since December 2013, when the motor vehicle collision giving rise to this action occurred. The parties are ready to proceed to trial on April 25, 2022, for four weeks before a judge and jury.

[2] As of March 1, 2022, this court’s temporary ban on jury selection was lifted. In mid-March 2022, COVID-19 restrictions were lifted by both the municipal and provincial governments.

[3] On March 10, 2022, the plaintiff served her record for this motion. The relief sought includes an order (a) striking the jury notice, and (b) requiring that the action proceed to trial before a judge alone on April 25, 2022, or on the earliest date possible.

[4] The grounds upon which the plaintiff relies include a state of affairs which no longer exists. For example, in her notice of motion the plaintiff submits that it is currently unknown whether an in-person jury trial can be held on April 25, 2022. As of the return date for this motion, the court was informed by Regional Senior Justice MacLeod that it is to be assumed that the trial of this action will proceed before a judge and jury on April 25, 2022.

[5] As another example of reliance on an outdated state of affairs, in her notice of motion the plaintiff submits that criminal jury trials will be given precedence over civil jury trials. With the court fully re-opened, the court has the capacity to manage multiple civil and criminal jury trials at the same time.

[6] The nature of the pandemic is, however, such that there is no guarantee the pandemic will not once again lead to the imposition of restrictions that interfere with the conduct of civil and criminal jury trials.

[7] In the early stages of the pandemic, two main approaches were developed in response to the proliferation of motions to strike a jury notice. In some matters, the jury notice was struck, and the parties ordered to trial before a judge alone. In others, the motion judge adopted a “wait and see” approach; the relief granted allowed for the possibility that it would, by the time the matter proceeded to trial, be possible to conduct civil jury trials.

[8] As time passed, and uncertainty as to when civil jury trials would resume persisted, a third approach was developed. The third approach is frequently described as provisional or as the middle ground. The end result of this third approach is something other than an unequivocal outcome on a motion to strike a jury notice. The relief granted provides a balance between avoiding delay in proceeding to trial and protecting a party’s statutory and substantive right to a trial by jury.

[9] At this stage of the pandemic, what is the approach to be taken on the plaintiff’s motion to strike the jury notice in this action?

Preliminary Issue

[10] The plaintiff set this action down for trial in July 2019. As a result, she requires leave of the court to bring her motion: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 48.04(1) (the “Rules”). The defendants take no position on this issue. Counsel for the defendants concede that the case authorities clearly favour granting leave in these circumstances.

[11] The plaintiff is granted leave to bring the motion to strike the jury notice.

The Issue

[12] Taking into consideration the state of affairs as they existed on the return date for this motion, the parties consented to an order dismissing the plaintiff’s motion for an order striking the jury notice.

[13] What remains to be determined, however, are the additional terms, if any, required to balance the plaintiff’s request that the trial not be delayed, from April 2022 for any reason, with the defendants’ request to preserve their substantive right to a jury trial.

Positions of the Parties

[14] In their oral submissions, counsel for the parties agreed that there is no basis, at the present time, upon which the court might exercise its discretion to unequivocally strike the jury notice. Understandably, the parties remain concerned about what will happen if the COVID-19 landscape changes, once again, prior to April 25, 2022.

[15] The plaintiff wants the April 2022 trial date preserved – even if it means that the trial proceeds before a judge alone. The plaintiff submits that, if the trial is delayed, she will experience prejudice for three reasons: a) by reason of delay alone, b) because of financial prejudice, and c) because of a negative impact on her mental health.

[16] The defendants do not want their substantive right to a jury trial taken away without the court considering a motion to strike the jury notice based on a complete record which accurately reflects the state of affairs.

[17] The defendants submit that, in any event, the evidence upon which the plaintiff relies falls short of establishing the degree of prejudice required – whether based on delay, financial impact, or impact on mental health – to support the relief sought by the plaintiff.

[18] The defendants submit that the recent changes to the COVID-19 landscape only serve to enhance the merits of their opposition to the relief requested by the plaintiff.

Analysis

[19] This action was originally scheduled to proceed to trial in April 2021. As of the spring of 2021, the parties were waiting to learn the outcome of the plaintiff’s application to her first party insurer for a determination that she is catastrophically impaired. The parties agreed that they were not ready to proceed to trial at that time. The trial of the action was adjourned to April 25, 2022.

[20] The plaintiff’s application to her first party insurer for a determination that she is catastrophically impaired was ultimately denied by the insurer.

[21] The parties agree that (a) as of the return date of the plaintiff’s motion, they are ready to proceed to trial, and (b) April 25, 2022, is the first assigned trial date on which this action could realistically proceed to trial. There is no suggestion by any of the parties that an opposing party’s litigation conduct has, in any way, contributed to delay in the matter proceeding to trial.

[22] “[T]he right to a trial by jury is a substantive right of great importance of which a party should not be deprived except for cogent reasons”: King v. Colonial Homes Ltd., [1956] S.C.R. 528, at p. 533. In Louis v. Poitras, 2021 ONCA 49, at para. 17, the Court of Appeal emphasizes that a court is not to interfere with the right to a jury trial “without just cause or compelling reasons”.

[23] In Louis, the Court of Appeal endorsed the approach taken by the motions judge (Beaudoin J.) and provided guidance to the court as to the approach to be taken on motions to strike a jury notice:

• A practical approach is required (para. 23);
• The motions judge must be cognizant of the responsibility of the court, to the parties and to the civil justice system, to move the case forward and provide timely service (para. 23);
• Consideration must be given to the interests of the parties and to the administration of justice (para. 25); and
• The availability of resources in the location where the trial is scheduled to proceed, in light of the COVID-19 pandemic (para. 26).

[24] The court turns to the types of prejudice that the plaintiff alleges she will suffer if her action does not proceed to trial in April 2022. The types of prejudice alleged and the quality of the evidence upon which the plaintiff relies in that regard are relevant to the court’s consideration of the additional terms, if any, to be included in the order dismissing the plaintiff’s motion. A review of that evidence may also be helpful to the parties in the event that the plaintiff brings a motion at a later date for an order striking the jury notice.

a) Prejudice by Virtue of Delay

[25] The plaintiff submits that she will suffer prejudice by virtue of delay. The Court of Appeal has clearly stated that “delay in obtaining a trial date for a civil jury trial can, by itself constitute prejudice and justify striking a jury notice”: Louis, at para. 22, quoting Brown J.A. in Louis v. Poitras, 2020 ONCA 815, at para. 33. The guidance provided is that delay “can” by itself constitute prejudice, not that delay by itself inevitably constitutes prejudice.

[26] On the motion before this court, there is no evidence as to the length of delay that might be encountered if, for pandemic-related reasons, the trial cannot proceed before a jury in April 2022. There are many ways in which COVID-19 might be a factor in the conduct of the trial.

[27] For example, if one of the participants in the trial tests positive for or is required to self-isolate because of COVID-19, there could be a delay of several days to either the start or continuation of the trial. Such a delay might have minimal impact on the conduct of the trial. Alternatively, a work-around might be found. Depending on who the affected participant is, it might be possible to have that individual participate in the trial virtually. If the affected participant is a witness, it might be possible to change the order in which witnesses are called to give evidence.

[28] In summary, a pandemic-related delay of a few days might not constitute prejudice sufficient to outweigh the defendants’ substantive right to a trial by jury.

[29] On the other hand, COVID-19 restrictions, if once again imposed, might render it impossible to conduct a jury trial commencing in April 2022 and continuing thereafter. If that scenario arises and the plaintiff maintains her request to proceed or continue with the trial, then the plaintiff will, on a motion to strike the jury, be required to present evidence as to the delay between the existing and the potential new trial date. With that evidence before it, the court would be in a position to consider whether the anticipated delay constitutes prejudice and, if so, to weigh that prejudice against the prejudice the defendants allege they would suffer if they lost their substantive right to a jury trial.

[30] In the absence of specific evidence about the potential delay to be encountered in any one or more of the scenarios described above, the most that the court can say at present is that there exists a concern that COVID-19 will contribute to a delay in the trial of this action before a jury.

b) Financial Prejudice

[31] The plaintiff submits that she will experience two types of financial prejudice if the trial does not proceed in April 2022. The first type of financial prejudice is in the form of increased costs in preparation for trial. The second type of financial prejudice is with respect to the plaintiff’s personal financial circumstances.

i) Increased Costs in Preparing for Trial

[32] The plaintiff submits that she will face increased costs – both fees and disbursements – in preparation for trial if the action does not proceed in April 2022.

[33] In support of her assertion that she will incur increased disbursements, the plaintiff relies on the evidence of Rebecca Duplantie, an associate lawyer in the office of the lawyer of record for the plaintiff. Ms. Duplantie’s evidence is that “counsel has already incurred significant disbursements preparing for the trial.” There is no evidence as to the amount of disbursements incurred to date in preparation for trial.

[34] Ms. Duplantie’s evidence is that if the trial does not proceed in April 2022, then it will be “much more costly to update all, or some, of the reports later” in preparation for the trial when it eventually proceeds. There is no evidence as to how many reports would need to be updated. The court questions whether all of the reports would need to be updated. For example, would either of an expert’s report on the issue of causation or a life care plan need to be updated?

[35] There is also no evidence as to the amount of the additional disbursements it is anticipated the plaintiff will incur to obtain updated reports.

[36] There is no evidence as to the fees associated with trial preparation carried out to the return date of the motion or anticipated leading up to the April 2022 trial date. In oral submissions, plaintiff’s counsel asked the court to draw an inference and find that as of one month prior to the trial date, his office had begun preparation for trial. Without even a general description of the type of work done as of the date of the return of the motion, the court is not prepared to draw the inference requested.

[37] The general assertions made by the plaintiff with respect to prejudice in the form of increased costs are akin to broad assertions made by a defendant as to a general or litigation disadvantage they will experience if the trial of an action proceeds before a judge alone. The court has been critical of such broad assertions:

• In Johnson v. Brielmayer, 2021 ONSC 1245, at paras. 51 and 52, Sanfilippo J. was critical of a defendant who, in response to a motion to strike the jury, did not lead evidence or explain what general or litigation detriment he would experience if the action against him was tried by a judge alone as opposed to by a jury.
• In Ismail v. Fleming, 2021 ONSC 1425, Tranquilli J. was critical of the defendant’s general assertion that the delivery of a jury notice had informed their litigation and settlement strategy. He concluded that such an assertion falls short of the type of “specific litigation disadvantage” that would justify delaying a trial to an uncertain date in the future so that it could proceed before a jury: at para. 26.
• In Tomson v. Jackson, 2021 ONSC 3422, the defendant made a broad assertion that he would suffer litigation disadvantage if the jury was struck in a chronic pain case and/or one which in the opinion of defendant’s counsel would turn on the assessment of the plaintiff’s credibility and reliability. At paras. 78-79, the court concluded that such an assertion does not amount to the type of litigation disadvantage required to outweigh the prejudice the plaintiff alleged she would suffer if the jury notice was not struck and the trial was delayed.

[38] The court also considers that, in the absence of evidence as to increased costs, the defendants are unable to consider whether, in response to a motion for an order striking the jury notice and related relief, they would consent to an order requiring them to pay those costs as a condition of an adjournment of the trial to a date on which it can proceed before a jury.

[39] The court is unable, on the record before it, to make findings as to the extent of the financial prejudice (in the form of additional costs), if any, that the plaintiff will suffer if the trial does not proceed in April 2022. In addition, the court is unable to weigh that prejudice, if found, against the prejudice the defendants allege they will suffer if they lose the substantive right to a jury trial.

ii) The Plaintiff’s Personal Financial Circumstances

[40] The record on this motion includes an affidavit from the plaintiff. The plaintiff was not cross-examined on her affidavit. The plaintiff’s uncontradicted evidence with respect to her personal financial circumstances is as follows:

• The plaintiff’s sole source of income is her monthly Ontario Disability Support Program (“ODSP”) benefit in the amount of $1,250. Over and above that amount, the plaintiff receives approximately $57 for diabetic supplies and travel related to medical care;
• Unable to make ends meet relying on her monthly ODSP benefit, the plaintiff was required to take out a litigation loan. The balance outstanding, for principal and interest, on that loan is in excess of $20,000;
• The plaintiff believes that she will face collection proceedings related to her credit card debt and potentially with respect to other unpaid bills; and
• The plaintiff is unable to afford car insurance.

[41] With respect to the level of the plaintiff’s income, the defendants point to the ADS Forensics report attached as an exhibit to Ms. Duplantie’s affidavit. The plaintiff’s work history is summarized in the Background section of that report. It is not in dispute that the plaintiff ceased working in 2010 and returned to Canada, from a posting with UNICEF in Sudan, specifically to care for her terminally ill mother. The plaintiff’s mother passed away in April 2015, approximately 1.5 years after the collision which is the subject of this action.

[42] From the ADS Forensics report, it appears that the plaintiff is not claiming any damages for loss of income for the period from the date of the collision to December 31, 2015. The ADS Forensics report includes a summary of the plaintiff’s income, as reported on her tax returns, for the years 2011 through 2014. Her income in those years was limited to withdrawals from her RRSP ($1,325 per year) and Social Assistance payments ranging from $3,031 to $6,651. In those same years, the plaintiff’s total income ranged from $4,356 to $7,976.

[43] Given the plaintiff’s limited income in the years 2011, 2012, and 2013, the defendants question the extent to which the plaintiff has been prejudiced financially because of the motor vehicle collision.

[44] Attached as an exhibit to the plaintiff’s affidavit is a Payout Statement dated October 2021 from CaseMark Financial Inc., the litigation loan lender. Based on the information set out in that letter, and the plaintiff’s evidence with respect to her litigation loan, the court makes the following findings:

• The total principal amount of the litigation loan is $9,550;
• In May 2016, the initial advance was made under the loan. That advance was in the amount of $7,500. No further advance was made until January 2019, when $850 was advanced. On the first of each of the months of February through May 2019, an advance of $300 was made. No advances have been made since May 2019; and
• The interest rate applicable to the litigation loan is 15 percent per year. Based on the principal amount owing of $9,500, simple interest accrues on the loan at the rate of $9.23 per day. The monthly interest charge is approximately $277 (30 x $9.23).

[45] In Azaria et al. v. Oldford, 2020 ONSC 7952, at para. 29, Gomery J. was critical of the plaintiff who, on a motion to strike the jury notice, did not provide detailed evidence as to the impact she would experience financially if the trial was adjourned. For example, no calculation of the cost of the delay was before the court. Gomery J. found that she could not assess the “concrete impact” of the delay on the plaintiff: at para. 40.

[46] There is minimal evidence before this court of the concrete impact on the plaintiff’s personal financial circumstances if the trial is delayed from April 2022. Better evidence is required to permit the court to assess that impact, consider the resulting prejudice to the plaintiff, and weigh that prejudice, if found, against the prejudice the defendants submit they will suffer if the jury notice is struck.

[47] Better evidence as to that concrete impact would permit the defendants to consider whether to consent to an order requiring them to make an advance payment to the plaintiff – offsetting the impact on the plaintiff’s financial circumstances – as a condition upon which the trial is adjourned to proceed before a jury at a later date.

iii) Summary

[48] Better evidence is required to permit the court to consider the potential financial prejudice to the plaintiff, and weigh that prejudice, if found, against the prejudice the defendants submit they will suffer if they lose their substantive right to a jury trial.

c) Negative Impact on the Plaintiff’s Mental Health

[49] The plaintiff’s evidence is that, as a result of the December 2013 collision, she was diagnosed with (a) somatic symptom disorder, with predominant pain, persistent moderate; (b) major depressive disorder, moderate; and (c) adjustment disorder/other specified traumas and stressor related disorder/other specified personality disorder. In support of that statement, the plaintiff relies on a report from psychologist, Dr. Ken Reesor dated January 15, 2022. A copy of that report is attached as an exhibit to the plaintiff’s affidavit.

[50] Attaching a copy of Dr. Reesor’s report to the plaintiff’s affidavit does not amount to proof of the contents of the report: Peirson v. Bent (1993), 13 O.R. (3d) 429 (Gen. Div.). The exhibit is proof only of the existence of Dr. Reesor’s report and the plaintiff’s receipt of it.

[51] The evidence before this court as to the status of the plaintiff’s mental health is therefore limited to the substantive contents of the plaintiff’s affidavit.

[52] Dr. Reesor’s report does not include an opinion as to the potential impact on the plaintiff’s mental health should the trial of this action be delayed. For the reasons already stated, even if such an opinion was expressed in Dr. Reesor’s report, that opinion would not be in evidence before the court.

[53] Therefore, the evidence as to the potential impact of a delay in the trial on the plaintiff’s mental health is also limited to the substantive contents of the plaintiff’s affidavit. At paras. 9 and 10, the plaintiff addresses the impact on her mental health of both the litigation and a delay in the trial of her action:

9. This ongoing litigation has significantly impacted my mental health. The possibility of delaying my day in court due to a pandemic which is outside of my control is increasing my anxiety and depression.
10. The trial of this matter is scheduled to proceed on April 25, 2022. For some time now, I have been ready for this day to come and for this litigation to finally come to an end. The delay of this trial is prejudicial and unfair to my claim. I am concerned about the impact on my mental health and my finances if this trial is delayed.

[54] The statements made in para. 9 include opinion evidence on matters about which Ms. Adam is not qualified to express such opinions. The court attaches no weight to those statements.

[55] The third sentence of para. 10 is conclusory and nothing more than argument. The court disregards that statement entirely.

[56] The court accepts the evidence in the final sentence of para. 10 and finds that the plaintiff is concerned that a delay of the trial may have a negative impact on her mental health. That concern alone does not, however, support a finding that the plaintiff will experience prejudice in the form of a negative impact on her mental health if the trial of the action is delayed.

[57] The court takes judicial notice of the fact that litigation is or, at a minimum, can be stressful for litigants: Tomson v. Jackson, 2021 ONSC 3422, at para. 62. The evidence before the court does not, however, permit it to distinguish the plaintiff from other litigants in that regard.

[58] In summary, better evidence is required to permit the court to consider the impact to the plaintiff’s mental health of a delay in the trial date and weigh that prejudice, if found, against the prejudice the defendants submit they will suffer if they lose their substantive right to a jury trial.

Disposition

[59] The plaintiff’s motion for an order striking the jury notice and requiring that the action proceed to trial before a judge alone on April 25, 2022, is dismissed.

[60] The plaintiff is determined to have the trial of this action proceed on April 25, 2022 – whether before a jury or a judge alone. If the COVID-19 landscape changes and it becomes apparent that it will be problematic or impossible to proceed with a trial before a jury on April 25, 2022, the plaintiff intends to bring another motion for an order striking the jury notice and requiring that the trial proceed, without delay, before a judge alone. In all of the circumstances, it is reasonable and cost-effective to grant the plaintiff leave to bring such a motion prior to April 25, 2022, if she wishes to do so.

[61] If the plaintiff brings such a motion prior to April 25, 2022, the defendants may respond by requesting that the trial of the action be adjourned to a date on which it can proceed before a jury. In all of the circumstances, it is reasonable and cost-effective to grant the defendants leave to bring a cross-motion prior to April 25, 2022, if they determine that a cross-motion is necessary to secure such relief.

[62] If the trial proceeds before a jury on April 25, 2022, and, for reasons related to COVID-19, it thereafter becomes impossible for the trial to continue before a jury, the plaintiff would, subject to the discretion of the trial judge, be entitled to bring a mid-trial motion for an order striking the jury notice. It would also be open to the defendants to respond with a mid-trial motion, if they decided such a motion were necessary, for an order adjourning the trial to a later date to proceed before a jury. Nothing in this endorsement is intended to in any way tie the hands of the trial judge.

[63] The court makes the following order:

1. The plaintiff is granted leave to bring the motion, returnable on March 25, 2022, for an order striking the jury notice and related relief.
2. The plaintiff’s motion for an order striking the jury notice and for related relief is dismissed.
3. The plaintiff is granted leave to bring a further motion, prior to April 25, 2022, for an order striking the jury notice and related relief.
4. The defendants are granted leave to bring a motion, prior to April 25, 2022, for an order adjourning the trial to a later date to be tried before a jury.

[64] In this endorsement, the court focuses on the potential for COVID-19 to interfere in the start of the trial on April 25, 2022, or the continuation of the trial thereafter. The court recognizes that there are other reasons why the trial might not commence on April 25, 2022. For example, on occasion there are insufficient judicial resources to permit a trial to proceed as scheduled. Nothing in this endorsement is intended in any way to address any circumstances, other than those related to COVID-19, that might contribute to a delay in the start or continuation of the trial.

[65] As of early March 2022, the COVID-19 landscape was changing rapidly. It would not have been possible for the plaintiff or her counsel to predict how that landscape would change between early March, when the motion materials were prepared and served, and the late March return date for the motion. Given that rapid change, including the lifting of COVID-19 restrictions effective mid-to-late March, it is reasonable and fair to the parties to reserve the costs of the plaintiff’s motion to the trial judge.

Madam Justice S. Corthorn Date: April 1, 2022