Louis v. Poitras, 2021 ONCA 49

In Louis v. Poitras, the Ontario Court of Appeal considered the fundamental changes that are being proposed for the civil justice system. As a result of the COVID-19 pandemic, trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution.

The 10-week jury trial in this case was supposed to have commenced on April 20, 2020. The COVID-19 pandemic did not allow for this to happen.

In July of 2020, the Plaintiff moved for an order striking the jury notices in both the tort and accident benefits actions, which the motion judge granted.
At this time, civil jury trials were not being scheduled in Ottawa, but judge-alone trials of three-weeks or less were available within the following six months. Consequently, the motion judge ordered the trials to proceed in three-week tranches, beginning in February 2021.

The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it relied solely on the presence of delay and lacked sufficient evidence of actual prejudice to the parties.

The Divisional Court

The Divisional Court made the following three arguments in deciding that the motion judge erred in their decision to strike the jury notices:

1. The Divisional Court found that delay was not enough of a reason to strike a jury notice and there needed to be additional proof of prejudice to the parties.

2. The Divisional Court found that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.

3. The Divisional Court compared the case to others where the pandemic was considered in the context of a motion to strike a jury notice. It concluded that while the courts in those cases were justified in striking a jury notice, there was an insufficient evidentiary basis here.

The Appeal – Key Takeaways

Justice Hourigan noted that the substantive right to a jury trial 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.

While a 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 a jury notice has a broad discretion to determine the mode of trial.

The case of Kostopoulos v. Jesshope developed the test for appellate court review. This case stated that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.”

In Justice Hourigan’s view, the findings of the Divisional Court were erroneous and reflect a fundamental misunderstanding of the role of appellate courts in considering appeals from orders to strike jury notices.

Justice Hourigan addressed the three arguments put forth by the Divisional Court as follows:

1. The accident in this case occurred over seven years ago and at the time of the motion there was no indication of when a civil jury trial might be held in Ottawa. Accordingly, the motion judge found that the real and substantial prejudice arose from the reason of the delay.

Justice Hourigan stated that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”

2. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation.

An appeal court must respect the reasonable exercise of discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.

3. The Divisional Court distinguished other decisions regarding striking jury notices on the basis that in those cases, the motion judges had evidence regarding the particular circumstances of the local civil list such as directives issued by the court and information provided to the court by the Regional Senior Judge.

The motion judge’s reasons show that he undertook a detailed analysis of Ottawa’s situation and reached his own conclusion regarding the status of civil jury trials in the city. A formal notice in Ottawa stated that civil jury trials would not proceed until at least January 2021. Further, only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time of the motion, and no plan had been finalized to accommodate jury trials. Further, the conversion of a jury assembly room into a jury deliberation room in the Ottawa courthouse would permit only a single jury trial to proceed at any given time.

This proves that the motion judge turned his mind to the local conditions and made an unquestionable finding that it was unknown when or how a jury trial might be heard in these matters.

Justice Hourigan concluded that the motion judge was correct in striking the jury notices given the totality of the circumstances.

Williams v. Richard, 2018 ONCA 889

The defendant hosted his late friend for after-work drinks at his mother’s home. The friend consumed 15 cans of beer in three hours before driving home and loading his children and baby sitter in his vehicle to drive the baby sitter home. On the way back to his residence, the friend was involved in a serious accident which killed him and allegedly caused injury to his children. Two court actions were commenced by the deceased’s children and their mother: one for personal injuries sustained by the children; and the other for damages pursuant to the Family Law Act. On a motion for summary judgment, the motion judge dismissed both claims, finding that the requisite duty of care had not been established, and even if it were established, it would have ended once the friend arrived home to pick up his children and the baby sitter. The Court of Appeal affirmed the appropriate duty of care analysis as that set out in Childs v. Desormeaux and held that the motion judge failed to give weight to distinguishable facts between Childs and the case at hand. Furthermore, the motion judge erred in law by accepting that as a general rule, a drunk guest’s safe return home ends the duty of care. The Court of Appeal set aside the motion judge’s order and ordered that the matters proceed to trial.

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

At trial, the defendant was found vicariously liable for sexual abuse alleged to have been committed against the plaintiff by its former employee. The defendant appealed on the basis that the trial judge erred in admitting the opinion evidence of a mental health clinician who gave evidence at trial as a participant expert. The court held that the plaintiff’s treating doctor, who had not delivered a Rule 53 expert report, ought not to have been permitted to provide opinion evidence as to whether the alleged sexual assaults occurred (liability) and whether the plaintiff suffered harm caused by such assaults (damages). Furthermore, the treating doctor’s expert opinions going to the issues of liability and causation failed to satisfy the threshold requirements for admissibility under the first step of the test in R v. Mohan and ought to have been excluded under the second step of the admissibility test because the prejudicial effect of the evidence outweighed its probative value. The appeal was allowed and a new trial ordered.