Court File and Parties

Court File Nos.: CV-14-00513023-0000 and CV-17-577928 Date: 2022-01-12 Ontario Superior Court of Justice

Court File No. CV-14-00513023-0000 Between: Geraldine Sanson, Plaintiff – and – John B. Paterson, Defendant

Court File No. CV-17-577928-00A1 And Between: Geraldine Sanson, Plaintiff – and – Security National Insurance Company, Defendant – and – John B. Paterson, Third Party

Counsel: Peter Cho and Michael D. Smitiuch, lawyers for the Plaintiff, Geraldine Sanson Connor Walton and Daniel Reisler, lawyers for the Defendant, John R. Paterson Cody Moskovitz and Nikoleta Koutsoubos-Giovanoglou, lawyers for Defendant, Security National Insurance Company

Heard: January 11, 2022

Reasons for Decision

G. Dow, J.

[1] This is an urgent motion by the plaintiff to strike out the jury notice on a conditional basis. The trial is scheduled to proceed for 20 days commencing on January 17, 2022. The defendants did not oppose the granting of leave as required by Rule 48.04.

[2] The parties appeared before Justice Glustein on November 30, 2021 and made submissions about an appropriate timetable which resulted in his File/Direction detailing what would occur and the deadlines for same.

[3] Given developments in the COVID-19 pandemic, Chief Justice Morawetz issued a Notice to the Profession on December 17, 2021 that no jury selection would commence until February 7, 2022, with civil trials to proceed virtually in the interim. This resulted in efforts to change and add to the evidence relied on by the parties. Both defendants opposed the relief sought and made submissions.

Preliminary Matters

[4] After consulting with the co-team civil trial leader before hearing submissions, I was permitted to suggest to the parties this motion be withdrawn in exchange for a new trial date of May, 2022. This would be significantly earlier than that which is currently being offered in Long Trial Scheduling Court. The parties were unable to agree to this and the motion proceeded. It was also noted that as of the submissions by counsel, it was unknown if a courtroom and judge would be available to permit this matter to proceed on January 17, 2022.

[5] The first preliminary issue was whether to permit counsel for the tort defendant, John Paterson, being Mr. Daniel Reisler to make responding submissions on the motion to conditionally strike the jury given the materials being relied on by Mr. Paterson consisted of the pleadings and Mr. Reisler’s affidavit sworn December 10, 2021 with 19 exhibits attached thereto.

[6] I permitted Mr. Reisler to make submissions on this issue and was advised there were two parts to his proposed affidavit evidence. The first was his affidavit consisted of undisputed events in the litigation which should not prohibit his making submissions. The second was the remainder of his evidence were points of arguments. The second part to his evidence was acknowledged by him to be improper but could be repeated by him or the second counsel for Mr. Paterson who was in attendance. Mr. Reisler also acknowledged that this second counsel was prepared to make submissions.

[7] It has been a standard practice in the Superior Court of Justice that it is improper for a deponent to act as counsel and rely on their affidavit evidence. This principle was set out in Imperial Oil Ltd. v. Grabarchuk (1974), 3 O.R. (2d) 783. Mr. Reisler submitted his position was not prohibited by the Rules of Civil Procedure but rather was a Rule of Professional Conduct (Rule 5.2). In my view, that results in an even higher standard for counsel to observe. Making an exception to that practice (while it can and does occur, usually with self-represented litigants or consent matters) should only occur in the rarest of circumstances. Those circumstances were not before me. I ruled Mr. Reisler not be permitted to make submissions on the substantive issues.

[8] The next preliminary issue was service and uploading to CaseLines of a Supplemental Responding Motion Record and obtaining an affidavit sworn December 23, 2021 by Vanessa Tanner, the previous counsel of record for Mr. Paterson. That material raised additional grounds to not grant the striking of the jury notice. In addition, it sought an order that the trial proceed with an out of town judge on the basis of Mr. Paterson’s reasonable apprehension of bias. The plaintiff is a lawyer and has received awards from the Law Society relating to her professional career. The plaintiff intends to call a former Law Society Treasurer as part of her case to attest to their working relationship in or about 1988 to 1990 and, it was submitted, her credibility.

[9] The deadline imposed by Justice Glustein for serving material to be relied on was December 10, 2021. No effort was made in advance of serving the Supplemental Responding Motion Record to appear before Justice Glustein to vary the File/Direction. In addition, no contact was made with plaintiff’s counsel to determine their position. In reviewing the additional evidence, it did not raise issues which could not have been contemplated or addressed in advance of the deadline imposed by Justice Glustein. As a result, I ruled not to consider that proposed evidence.

[10] The third preliminary issue was the late service by the defendant, Security National of its factum on January 4, 2022 or after the December 31, 2021 deadline imposed by Justice Glustein. Counsel for Security National advised this was the result of inadvertence.

[11] Given the factum was served sufficiently in advance for plaintiff’s counsel to consider its content before submissions on January 11, 2022, I allowed it to be relied on. Further, it did not appear to disrupt or significantly alter the reply submissions of the plaintiff, also dated and served earlier in the day on January 4, 2022.

Background

[12] These actions arise out of injuries and damages (including past loss of income) allegedly sustained by the plaintiff on October 19, 2012. The incident involves the plaintiff on a bicycle and Mr. Paterson in his motor vehicle. The action against Mr. Paterson seeks more than $6 million plus interest and costs and the action against Security National is pursuant to a OPCF 44R endorsement or underinsured coverage. Liability and damages are contested.

[13] The main action was certified ready for trial on July 28, 2016. There have been four trial dates previously:

a) February 11, 2019 set at Trial Scheduling Court held January 27, 2017 and adjourned at the request of Security National;

b) The October, 2020 jury sittings set at Trial Scheduling Court March 20, 2019 and adjourned due to COVID restrictions;

c) January 11, 2021, again adjourned due to COVID restrictions; and

d) January 17, 2022 set at a case conference held February 1, 2021 for this purpose.

Analysis

[14] Both the law and the circumstances arising from the COVID pandemic continue to evolve. Indeed, the suspension of jury trials imposed on December 17, 2021 by the Notice to the Profession was not in existence when the parties obtained their timetable for this urgent motion on November 30, 2021.

[15] The Court of Appeal has provided direction in Louis v. Poitras, 2021 ONCA 49 and in particular that there is “no single province wide answer to the problems we face in delivering timely justice; local conditions will necessarily impact the choice of effective solutions”: (at paragraph 3). Further, the Court of Appeal stated “local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case” (at paragraph 26).

[16] The right of a party to proceed to trial with a jury is a “substantive right and should not be interfered with without just cause or cogent reasons” (Cowles v. Blac, [2006] 83 O.R. (3d) 660 (at paragraph 36)). That right “is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.” (Louis v. Poitras, supra at paragraph 17). I am reminded of my statement in Ma v. RBC Life Insurance Co., 2016 ONSC 6417 that it will only be in the rarest of situations and clearest of cases where a party can successfully argue a jury notice should be struck in advance of the trial (at paragraph 13). To that end, this matter is on the eve of a trial that cannot take place with a jury currently and the plaintiff seeks only a conditional discharge of the jury.

[17] In Johnson v. Brielmayer, 2021 ONSC 1245, a useful summary of the factors to consider was set out and included:

a) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing;

b) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials;

c) the prejudice to the parties that would be caused by delay in adjudication;

d) the age of the case; and

e) the history of adjournments.

[18] Regarding the resources available, the unique situation in the Toronto Region was reviewed. That is, it is well situated given that civil matters are dealt in a separate building than that used for family and criminal manners. That means civil jury trials can recommence as soon as jury panels resume attending at the courthouse. This is unlike other locations of the Superior Court of Justice in Ontario where civil, family and criminal matters share facilities and criminal and family matters may understandably need to take priority. I conclude this is a factor and favour of dismissal of the motion when weighed against taking away a substantive right of a party.

[19] Regarding the local impact of the pandemic, counsel and the court did acknowledge the latest information appears to have significant uncertainty as to when jury trials may resume. However, in the Toronto Region, the dedicated civil jury courtrooms have been retrofitted and are sufficiently large for social distancing. This has resulted in the ability to resume civil jury trials more quickly than in other parts of the province.

[20] There must also be a balancing between the rates of infection occurring from the latest Omicron variant and the rising proportion of Toronto residents not only double vaccinated but having received a third or booster shot. I conclude these uncertainties make this a neutral factor.

[21] Regarding prejudice to the parties, it is noted that it has been more than five years since the main action was certified ready for trial. The plaintiff was 56 years old at the time of the accident and her CPP-disability payments, which began in 2019, will cease this year (likely to be replaced by Canada Pension and Old Age Security benefits in an unknown amount). She alleges being unable to work since June, 2015. The plaintiff’s litigation accounting report (marked as Exhibit 1 to the affidavit of Michael Smitiuch sworn December 1, 2021) indicates (at Schedule 6) that income replacement benefits have not been paid since February 28, 2018. Her pre-accident actual net income in the years prior to the accident was assessed by the defendant’s litigation accountant at between $132,362.00 and $155,958.00 in 2020 (see page 19 of the plaintiff’s litigation accounting report dated April 16, 2020 marked as Exhibit 1 to the affidavit of Michael Smitiuch sworn December 1, 2021).

[22] This prejudice is compounded by application of Section 267.5 of the Insurance Act, R.S.O. 1990, c. I.8 which limits recovery of past loss of income to 70% of gross income. No undertaking was given by the defendants to waive this reduction in the past loss of income awarded, if any, at trial from January 17, 2022 to the date of trial if this motion was dismissed. As a result, there is significant prejudice to the plaintiff.

[23] To the contrary, unlike other matters where the defendants have submitted specific evidence of how and why their litigation strategy involved having the issue determined by a jury (and while submissions were made about extensive surveillance of the plaintiff), no evidence was tendered in this regard. As a result, this factor favours a conditional striking of the jury notice.

[24] Regarding the age of the case, it will be 10 years in 2022 for when the cause of action arose on October 19, 2012. While many personal injury actions take what appears to be an unusually long time to be ready and proceed to trial, this matter has been certified ready for trial for more than five years. In addition, this matter has been the subject of two failed mediations and five pre-trial conferences where the parties have been unable to resolve any of their substantive issues. It is now at a stage where it needs to proceed. This factor also favours conditionally striking out of the jury notice.

[25] Finally, regarding the history of adjournments, this is the fourth trial date agreed on or set by the parties in the court. The plaintiff did not seek adjournment of any of the previous trial dates. As a result, this is a factor favouring granting of the plaintiff’s motion.

Conclusion

[26] The right to a civil jury trial is a substantive and statutory right. However, it is qualified and subject to the overriding interest of the administration of justice and the issues of practicality (Louis v. Poitras, supra at paragraph 24). The plaintiff has met her onus to show that the circumstances are such that the trial ought to proceed without a jury, if necessary.

[27] As a result, the plaintiff’s request for conditional discharge of the jury is granted. That is, when this case is called for trial, if juries are not being impaneled, it shall proceed without a jury, and, if necessary, virtually.

Costs

[28] The parties did not agree on costs. However, only counsel for the plaintiff had prepared a Costs Outline as required under Rule 57.01(6). It was seeking partial indemnity costs in the amount of $8,822.48 for time expended including submissions at the hearing and inclusive of HST. This compares with the subsequently uploaded Outlines of Security National and Mr. Paterson in the partial indemnity amounts of $2,256.04 and $4,318.86 respectively, inclusive of HST.

[29] Further, following the Notice to the Profession on December 17, 2021, the plaintiff offered to resolve the motion by obtaining “an order striking the jury notice” and with the matter proceeding “before a judge alone either hybrid or virtually as the circumstances warrant” (email from counsel December 17, 2021). The proposal was on a without cost basis and appears to be available for acceptance until December 21, 2021.

[30] The opposing submission by counsel for the defendant, Paterson was that costs ought to have been agreed upon in the amount of $5,000.00, inclusive of HST. There was no objection to the time spent or proposed partial indemnity rates claimed by plaintiff’s counsel.

[31] I am not satisfied the December 17, 2021 email fits within the requirements of Rule 49.10 on the basis that it appears to have been expired before the commencement of the hearing. Given the success of the plaintiff and guided by the statement in Boucher et al v. Public Accounts Council for the Province of Ontario et al, [2004] O.J. No. 2634 at paragraph 26 “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant”, I award the plaintiff her costs of $7,000.00 inclusive of HST. The payment of this award shall be divided equally between each defendant and payable forthwith.

Mr. Justice G. Dow Released: January 12, 2022