CORRECTED ENDORSEMENT

Correction: Neutral Citation Added for Publishing

[1] The plaintiff brought a motion for orders granting leave to bring this motion and striking the defendants’ Jury Notice on a provisional basis to allow the matter to be heard by a judge alone, and related relief.

[2] This action arises from a motor vehicle collision with a moose which occurred at night on June 27, 2017 on Hwy 11 in northern Ontario, in which the plaintiff allegedly suffered serious injuries. The plaintiff was a passenger in a rental motor vehicle driven by the defendant, Luke Charlton.

[3] On September 20, 2018, the plaintiff commenced this action. On January 2, 2019 the defendants delivered a Statement of Defence and Jury Notice. Examinations for discovery took place on Aug 7, 2019 and on March 3 and March 4, 2020. The plaintiff passed the Trial Record on October 9, 2019. The parties attended a private mediation on May 28, 2021, but the action was not resolved. A pre-trial conference was held on October 27, 2021. It is estimated that the trial could take four weeks.

[4] The COVID pandemic resulted in the temporary suspension of civil jury trials, leading to delays obtaining dates for and hearing them. Since the pre-trial conference on October 27, 2021, counsel for the plaintiff have attended trial scheduling court on November 19, 2021 and January 21, March 19, April 22 and May 20, 2022 but have been unable to schedule the trial due to the unavailability of civil jury trial sittings.

[5] At the trial scheduling court on May 20, 2022, counsel for the plaintiff were advised that the earliest available civil jury trial date would likely be in 2024, but that a judge alone trial could happen sooner. Consequently, plaintiff’s counsel submits that the action ought to be tried without a jury due to continuing delays and the unavailability of civil jury sittings in the Northeast Region, requiring the action to proceed with a jury will likely result in delay that would not exist if the action were being tried by a judge alone, the interests of justice can be served by a judge alone trial, and the most efficient and cost-effective manner in which to have this matter proceed to trial is to provisionally strike the defendants’ Jury Notice and to proceed to trial by judge alone. However, in the event that a jury is available to hear the case when it is called to trial, the defendants may then opt for trial by jury.

[6] The defence does not oppose leave being granted for the plaintiff to bring this motion. I am satisfied that it is in the interest of justice to do so.

[7] The plaintiff’s counsel submitted that the plaintiff is prejudiced by the delay in getting the matter to trial. The prejudice is exacerbated by the Insurance Act’s limits on recovery for past loss of income, but not future loss, such that the longer the trial is delayed, the greater her income losses will be. Furthermore, although her accident benefit claim is limited to five years, after trial she would have the funds for treatment.

[8] The defence opposed the motion to strike. It noted that the plaintiff alleged that she suffered a traumatic brain injury, but that there is a lack of objective medical evidence of such. It submits that a jury is best positioned to assess liability, the plaintiff’s credibility, and the medical evidence in the case. Its litigation strategy has always been to have the case tried before a jury. It alleges that it will face prejudice if the Jury Notice is struck.

[9] The courts have recognized that delay in obtaining a date for a civil jury trial can, even by itself, constitute prejudice justifying striking out a jury notice.[^1]

[10] The courts have also accepted that the existence of a litigation strategy is a valid consideration.[^2]

[11] At this point, unlike in many of the recent cases that have dealt with the issue of whether to strike a Jury Notice, the courts are again open for jury trials. Unfortunately, there is a backlog of cases to be heard, both jury and non-jury, and civil cases are generally behind criminal and family ones in the queue. There was evidence that the case would not be heard by a jury before 2024. There was no evidence of when it could be scheduled for a judge alone trial, just a vague indication that that could be sooner.

[12] An inquiry of the Trial Coordinator revealed the following. There are no available civil jury trial dates in 2023. Nor are any non-jury dates available at this time. The situation might change once an expected new judicial appointment is made.

[13] So, even if the Jury Notice is struck, when the case might be heard, and whether that is substantially sooner for a non-jury than a jury trial, is unknown. Therefore, at this time, whether the prejudice to the plaintiff by proceeding to a jury trial as compared to a non- jury trial is substantially greater is speculative. Consequently, as in the Walti v Ellahi case, while the plaintiff could be prejudiced either way, the defendants will be prejudiced only if the Jury Notice is struck.

[14] It follows that I find that the plaintiff has not met her onus of proving that the motion to strike should succeed. It is dismissed without prejudice to a new one being brought if the factual situation changes.

[15] If costs cannot be agreed upon, the plaintiff has 15 days to serve and file costs submissions. The defence has 10 days after that to serve and file responding submissions. Each side’s submissions shall be limited to three pages, double spaced, plus Bills of Costs.

The Honourable Justice J. A. S. Wilcox

Date: August 4^th, 2022

Corrected Endorsement Date: September 25, 2024

[^1]: Louis v Poitras, 2021 ONCA 49, para. 22

[^2]: Walti v Ellahi, 2021 ONSC 3914

Charlton v. Charlton and Enterprise Rent-A-Car Canada Company, 2022 ONSC 7412

Case Summary

CORRECTED ENDORSEMENT

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