Court File and Parties

COURT FILE NO.: CV-1043-16

DATE: 20220822

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sekou Kromah and Kaleem Tavares, by his Litigation Guardian, Sekou Kromah, Plaintiffs

AND

Mary Anne Lepore and TD Home Auto Insurance Company, Defendants

BEFORE: Justice Spencer Nicholson

COUNSEL: R. El-Tawil, for the Plaintiffs, Moving Parties W. Woodward, for the Defendant, TD Home Auto Insurance Company, Responding Party Mary Anne Lepore, noted in default

HEARD: August 19, 2022

REASONS ON MOTION

NICHOLSON J.:

[1] The Plaintiff brings the within motion to strike the Defendant’s Jury Notice in this personal injury action arising out of a motor vehicle accident that occurred on May 5, 2014. The trial of the matter is scheduled to commence on September 12, 2022, in London, Ontario.

[2] I note that I conducted the pre-trial in this matter. At the outset of the motion, both counsel provided written consent allowing me to hear this motion in the event that Rule 50.10 of the Rules of Civil Procedure suggests otherwise. That rule does refer to “the trial of the action” so such written consent may well have been unnecessary.

[3] During oral argument, and in his written material, the Plaintiff indicated that what is sought is a “conditional” striking of the jury. In other words, he asks that the jury be struck now so that the case can be considered a non-jury case, but in the event that it does not proceed this fall, the jury notice would be automatically reinstated.

Background:

[4] Very little background is necessary. However, it is worth knowing the following:

• Mr. Kromah was born on November 15, 1984. He is currently 37 years of age.
• He was involved in the subject motor vehicle accident on May 5, 2014, at the age of 29.
• The alleged injuries include, inter alia, a traumatic brain injury, post-concussive syndrome, chronic pain syndrome and psychological impairment. The accident benefits insurer has deemed Mr. Kromah to be catastrophically impaired. The Defendant refutes the existence and severity of the injuries.
• The Statement of Claim was issued on April 20, 2016. The Defendant Maryanne Lepore, who fled from the scene of the accident, was noted in default and has not been participating in the action.
• The Defendant, TD Home Auto Insurance Company (“TD”), filed a Jury Notice within the prescribed time.
• There was also a claim commenced by Mr. Kromah’s child, who sued both Ms. Lepore and Mr. Kromah given the liability issue (which is not relevant for the purpose of this motion). That claim was recently resolved contingent on court approval, which should result in a shorter trial than originally anticipated. It is now anticipated that the trial will take four to five weeks, instead of six weeks.
• A trial record was filed on November 27, 2020. At assignment court on February 26, 2021, a jury trial was scheduled for six weeks in relation to both plaintiffs to commence on September 12, 2022.
• I pre-tried this case on April 5, 2022.
• I understand that the case is ready for trial.

[5] The Plaintiff is currently not working, which he attributes to the injuries sustained in the motor vehicle accident. However, he has held employment since the car accident and then obtained his Masters Degree. He then worked again. He has not worked since 2019 and is currently receiving long term disability benefits, income replacement benefits and CPP disability benefits. His accident benefits claim remains active, which means that there are insurance funds available to fund his treatment pending trial. TD refutes that the income loss is attributable to the motor vehicle accident.

Relevant Legal Principles:

[6] I will address the relevant legal principles only very briefly as they have been stated and re-stated at great length in the numerous cases dealing with jury notices and the pandemic.

[7] The right to a trial by a jury is a substantive right of great importance in our civil law. However, the right to a jury is not absolute but is subject to the court’s power to order that the action proceed without a jury where justice to the parties will be better served by trying a case by judge alone. The court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons. A judge considering a motion to strike has a broad discretion to determine the mode of trial (see: Louis v. Poitras, 2021 ONCA 49, at para. 17).

[8] Furthermore, in exercising his or her discretion, the motion judge may consider not only the parties’ interests but also the broader interests of the administration of justice (Louis v. Poitras, at para. 25). These broader interests must include providing timely access to justice to civil litigants.

Analysis:

[9] I hesitate to use the phrase “judicial notice” as that concept has created significant consternation among members of the judiciary. The parties did provide evidence from the Ontario Government’s COVID-19 website and notices from the court. For the purposes of the motion, I am prepared to accept the following:

• The COVID-19 pandemic is not over and continues to pose significant risk to the community. I am not prepared to prognosticate on how long COVID-19 will remain a threat.
• Health measures have proven effective enough that at the present time there are minimal restrictions imposed by the Ontario government. Masks, for example, are not required in most public settings. Wearing a mask has become, in large measure, a matter of personal choice.
• A very high percentage of Ontarians aged 12 and older have received at least two doses of the COVID-19 vaccines in some combination (91.4% as of August 1, 2022, according to a document entitled Ontario Public Health Vaccine Uptake in Ontario). Some members of our community have received as many as four doses. The vaccines do not, however, appear to prevent individuals from contracting COVID-19, but do appear to mitigate the severity of illness that individuals experience.
• Jury trials were last suspended throughout the Province by Chief Justice Morawetz on December 17, 2021, effective initially until February 7, 2022. This was extended to April 18, 2022. Effective April 19, 2022, Morawetz C.J., by Notice to the Profession, Parties, Public and the Media, confirmed that jury trials would resume but would be held in person, unless otherwise directed by the Trial Judge.

(My emphasis)

• London has been conducting criminal jury trials on a regular basis, and sometimes more than one at a time, since the jury restrictions were lifted. While initially the jurors were spread across the courtroom, jurors are now being seated in the jury boxes again.

[10] London has its own unique challenges at present. Like all regions in Ontario, there is a significant backlog of both criminal and family cases that will take precedence over civil matters. In December of 2020, when I released Solanki, the Southwest Region had a full complement of judges. That is no longer the case. As a result of numerous factors, including illness, injury, the elevation of a justice to the Court of Appeal, the secondment of a supernumerary judge, retirement and a resignation, the Southwest Region is not currently operating at full strength. In fact, the Region is currently five and a half judges below its full complement. That is a very significant number.

[11] I offer further insight into the workings of the Southwest Region for the benefit of the local civil bar.

[12] In addition to serving the larger municipalities of London and Windsor, judges of the Southwest Region circuit among the surrounding smaller communities of Woodstock, Stratford, Goderich, St. Thomas, Chatham and Sarnia. The first four centres comprise the “East Rota” and Chatham and Sarnia the “West Rota”. A Southwest Region judge is assigned to each of those “rotas” on most weeks, making them unavailable to sit in London or Windsor, as the case may be.

[13] In London, each week a judge must be available to handle civil special appointments (Mondays and Wednesdays), civil pre-trials (Tuesdays and Thursdays) and civil motions (Fridays). Often, the same judge is called upon to handle various aspects of criminal matters, including taking guilty pleas and imposing sentences, conducting bail or detention reviews and conducting criminal pre-trials, during any of those five days. The special appointments and pre-trials are booked, in most cases, many months in advance. Thus, whenever it is humanly possible, the administration of justice requires a judge to be available to handle those tasks each week.

[14] Criminal matters involve much more than a trial. Many cases have pre-trial applications that are scheduled many months in advance and must be arranged with sufficient time before the commencement of trial to allow judges to make their rulings. Some of these applications involve multiple days of evidence and argument. While the outcomes of many of these applications may be dispositive of the trial itself, most are not. The same judge that hears these applications is usually assigned to the trial.

[15] In addition, due to the magnitude of the family backlog in London, judges ordinarily hearing criminal and civil matters are called upon to assist judges appointed to the Unified Family Court when needed. In all centres other than London and St. Thomas, the assigned judges are required to handle all of the family work. Thus, the significant family law workload in those municipalities also impacts the availability of those judges to assist in London and to take the turn of any London judge assigned to one of the “rotas”.

[16] I provide this information so that the civil bar, and the civil litigants, understand that at present, in London, the backlog is not necessarily because the court cannot conduct jury trials. In fact, London has been conducting jury trials in criminal matters since September 2020, albeit subject to periods in which the ability to conduct jury trials has been paused by the pandemic. Given that there is no prohibition on jury trials at present, if a judge were to become available, a civil jury trial could be called.

[17] Contrary to the assertion of counsel for the Plaintiff, non-jury matters are not given any priority over jury trials in deciding which cases are to be called to trial. In fact, the opposite is true. Provided there are sufficient courtrooms available in London, a civil jury trial will always take precedence over a civil non-jury trial of comparable length.

[18] It must also be kept in mind that a judge must be available for the duration of the anticipated length of the trial. Thus, while a judge may be available for the first two weeks, if assigned to another trial during week three, that creates a significant scheduling issue. Furthermore, the trial coordinator has to consider whether a judge is ineligible to conduct the trial because that judge conducted the pre-trial, or for some other reason.

[19] The idea of conducting a trial in “tranches” in London is, respectfully, easier said than done. At present, it is exceedingly difficult for the trial coordinators to find additional time in close proximity because each judge’s schedule has, particularly at this time, already been fully booked.

[20] Much of the Plaintiff’s factum contains comments from cases decided in 2021, or comments made by the judiciary in 2021 or early 2022. These comments are in large measure outdated. As I will describe, the fundamental misconception, in my respectful opinion, in the Plaintiff’s argument is the following statement in their factum:

“Striking the Defendant’s jury notice would allow the trial to proceed on the scheduled date and grant the benefit of a timely resolution to all parties involved.”

[21] Quite simply, that is not the case. Striking the jury notice will have very little, if any, appreciable bearing on the likelihood that this four- or five-week civil trial will be reached this September. Such a trial will be called if, and only if, there is a judge available to preside over a trial of that length. If a judge were to become available, any remaining civil jury case on the running list would take precedence. In that event, striking the jury notice in this case, would actually prejudice the Plaintiff.

[22] The most compelling argument raised by the Plaintiff in favour of conditionally striking the jury is that there is a legitimate and real risk that during the trial, a juror could test positive for COVID-19 thereby creating a possibility that the trial cannot continue. Furthermore, non-jury trials have been occurring with minimal difficulty virtually, which is not entirely possible with jury trials.

[23] However, trial judges have broad trial management powers, including the ability to discharge the jury should the continued trial be jeopardized. The Court of Appeal in Louis v. Poitras, emphasized deference with respect to such decisions if reasonable in the circumstances.

[24] The Chief Justice’s Guidelines to Determine Mode of Proceeding in Civil became effective on April 19, 2022. Para. 10 applies to jury trials and provides that:

All civil jury trials will be held in person. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.

[25] The Court of Appeal in Louis v. Poitras has recognized that judges may take innovative and drastic steps to overcome the local effects of the pandemic. Local judges have done so in circumstances where it appeared that the trial would not otherwise proceed as a direct result of there being a jury notice. However, in my view, to take away a party’s important substantive right to a jury, where there is no evidence to suggest that it improves the chances of a case being reached, is unfair to that party. I accept that settlement negotiations are impacted by the anticipated mode of trial. The courts should be hesitant to intervene in that dynamic unless it is clear that striking the jury notice would increase the chances of a case being reached.

[26] The Plaintiff submitted a reply affidavit setting out the significant increase in disbursements that will be incurred in updating reports if the case does not proceed. The Defendant objected to me considering this evidence. In any event, I find that it does not alter the equation in any meaningful way as striking the jury notice does not make it any more likely that this case will be reached. Accordingly, the outcome of this motion will not alter the need to update reports.

[27] The Plaintiff also argues that a judge alone trial will be shorter, more efficient and more affordable. This is an attractive argument. That, however, has always been the case. Nonetheless parties have been afforded the substantive right to request that their matters be decided by jury. I am not at all confident that any efficiencies obtained by a judge alone trial will shorten the trial sufficiently to transform a four- to five-week trial into a trial that is any more likely to be called.

[28] The local jury striking decisions referred to by the Plaintiff must be considered in the context of the circumstances existing at the time when those motions were heard.

[29] In Solanki v. Reilly, 2020 ONSC 8031 (from December 2020), no jury cases of any kind were going to be heard during the relevant time period. One of the plaintiffs was in poor health and was elderly. An adjournment would have meant that, practically, she would never have her action tried. The motion also came at a time when there was a real likelihood that a judge could become available. In fact, striking that jury allowed that case to proceed to trial and a verdict was obtained.

[30] In Purcell v. Van Pelt, 2021 ONSC 1266 (February 2021) McArthur J. noted in paragraph 43 that there was an “unusually small window and opportunity” to conduct civil trials in London at that time. No jury trials of any kind were occurring and thus, the court could not deal with criminal jury matters. This allowed judges to be available to conduct civil matters. At present, there is no reason to suspect that there will be any pause in criminal jury trials.

[31] In Reilly v. Frosst, 2022 ONSC 110 (January 2022), I noted that the Omicron variant had just emerged. Jury trials had once again been suspended. This is unlike the current climate. I am unaware of any suggestion of the suspension of jury trials within the next two to three months when this case is scheduled. I say this fully cognizant that there is a real potential for another COVID-19 wave. The availability of vaccines has allowed the Province to remain open for business.

[32] Rady J. heard the motion to strike a jury notice in Kumari v. Clark, 2022 ONSC 833 (February 2022), at a time when jury trials were still suspended. That is no longer the case.

[33] This brings me to Weinberger v. Gray, 2022 ONSC 2526, (April 25, 2022) a much-discussed decision of Regional Senior Justice Thomas, whose knowledge of the local conditions would be as acute as that of anyone. In Weinberger, Thomas R.S.J. stated as follows, at paras. 22 and 24:

[22] Civil jury trials in London, in excess of 2 weeks, have no chance of being heard until late in 2024 at the earliest. The plaintiff here clearly has a right to timely justice.

[24] Part of the problem in attacking the backlog of cases in London is the judicial complement. The Southwest Region, at the time of these Reasons, has a complement of 26 full-time judges. From those 26 positions, we are awaiting 2 appointments and there are 3 judges on extended medical leave. Twenty-one full-time judges to cover all the work of 8 judicial centres does not assist in the resolution of civil litigation.

[34] Despite the clear words of RSJ Thomas, they must be considered in the context of the matter before him. RSJ Thomas was not deciding whether the matter before him would proceed by jury or by judge sitting alone. He was deciding whether it made sense to transfer the case from a centre that could accommodate an earlier civil jury trial to London. He was not being asked to determine whether the important substantive right to a jury should be interfered with.

[35] Secondly, his reasons do not suggest in any way that, in London, a three- to six-week non-jury civil matter would have any greater prospect of being reached than a two-week civil jury trial.

[36] In fact, on Monday, May 9, 2022, which occurred after Weinberger was released, I was scheduled to select two civil juries. Both of those cases settled. That harkens back to the pre-pandemic situation in London where judicial resources remained tight and the civil bar was, unfortunately, often in limbo waiting to hear whether their jury cases were going to proceed.

[37] I am not attempting to contradict RSJ Thomas’ words. There exists at present, a real concern about the court’s ability to reach civil jury trials in London in the foreseeable future. However, the worry extends equally to civil non-jury trials. Consequently, striking a jury notice, even conditionally, in respect of a civil trial on a running list in September 2022, simply does not improve the situation. The judicial complement problem is actually worse now than it was at the time RSJ Thomas released Weinberger.

[38] Local Administrative Justice Grace, in Weaver v. Clunas, 2021 ONSC 2364, (March 2021) conditionally struck a jury notice. He stated the following at para. 38:

[38] But for the current impact of COVID-19 on the conduct of jury trials in Ontario this motion would not have succeeded. Because of the importance of the present circumstances to the analysis, it is imperative that a renewed motion, if brought, include evidence concerning the status of civil justice at that time. If the May 2021 running trial list date cannot be maintained, the “wait and see” approach then becomes the appropriate one. The plaintiff should not complain. The continued presence of a jury notice would then give his case higher standing on the scheduling ladder.

(Emphasis in italics added)

[39] LAJ Grace’s view is consistent with the requirement that a party’s substantive right to a jury only be taken away for cogent reasons.

[40] I point out that Grace J. also, prophetically, noted at that time that “From a scheduling perspective, the access of the civil bar to judicial resources has rarely, if ever been this good. However, with certainty I can say that it will not last. The moment the suspension of jury trials ends, the long line of criminal cases will push through the courthouse doors, long before the participants in civil matters are even able to view them from afar.” (Weaver, at para. 29).

[41] As noted, the right to have a civil jury trial should only be interfered with for just cause or compelling reason. There is no such reason at this time in London in the case before me. There is no basis in the evidence on the motion to believe that there is any greater prospect of this case being called to trial if it is a non-jury trial as opposed to a jury trial. London is conducting jury trials at present and will continue to do so unless and until suspended by the Chief Justice. If a judge becomes available to preside over this civil trial, there is no compelling reason, at present, why this case should or could not proceed with a jury. If the court can accommodate twelve-person criminal jury trials, it can conduct six-person civil jury trials.

[42] I reiterate that this is not a situation in which there is a break from criminal jury trials such that there may be a “window of opportunity” that presents itself. If a window of opportunity arises, then there is no reason why this trial should not at least commence in front of six members of the community.

[43] Judges of the Southwest Region are intensely aware of and share the frustrations of the civil bar, both plaintiff and defence. The impact on the litigants, undoubtedly felt more by plaintiffs, can be brutal. Steps must be taken, whenever possible, to get these cases to trial. Striking this jury notice, even conditionally, as of September 2022, will not accomplish, or even further, that goal.

[44] For the foregoing reasons, the Plaintiff’s motion is dismissed. I do not consider that this decision would impede the Plaintiff, or Defendant, from renewing this motion at trial, in the right circumstance (i.e., a member of the jury contracting COVID-19).

[45] If the parties are unable to agree on costs, the Defendant may provide written submissions, no longer than 2 pages in length by September 9^th^ and the Plaintiff may respond in writing of no more than 2 pages by September 16^th^. There shall be no right of reply.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: August 22, 2022