Thomas v. Aviva, 2022 ONSC 1728

The plaintiff was injured in a motor vehicle accident and brought a personal injury action. The initial statement of claim in 2018 sought $1 million in damages. The defendant insurer had limits of $200,000 for unidentified motorist coverage. The insurer filed a jury notice with its statement of defence. In 2021, the plaintiff brought a motion seeking to: amend the claim to seek only $200,000 in damages, traverse the matter to Rule 76 simplified procedure, and strike the jury notice. Justice Ramsay concluded that the insurer was entitled to maintain its jury notice, and that the matter could not be transferred to Rule 76 procedure, despite the plaintiff amending the claim to reduce the damages sought. The 2020 amendments to the Rules did not remove the defendant’s right to a jury trial where the jury notice was filed before January 1, 2020.

Rumney v. Nelson, 2021 ONSC 5632

This personal injury action arose from a motor vehicle accident. The plaintiff sought pre-trial orders excluding surveillance, striking the jury notice, and notifying the jury of the deductible. Justice Fowler Byrne agreed to conditionally strike the jury (subject to jury availability when the trial began).

With respect to the surveillance, Justice Fowler Byrne rejected the plaintiff’s argument that surveillance obtained while the investigator was trespassing was inadmissible, but accepted that surveillance of the plaintiff’s wedding day should be excluded because its potential prejudice would outweigh its probative value. Finally, Justice Fowler Byrne held that the jury was not to be informed of the statutory deductible. The jury’s task was to determine the quantum of damages without regard to later deductions.

Lightfoot v. Hodgins et al., 2021 ONSC 1950

This action arises from a motor vehicle accident. The statement of claim was issued in September 2016 and sought damages in the sum of $750,000.00. In February 2021 the plaintiff brought a motion seeking for the trial to proceed under Rule 76 Simplified Procedure, and to strike the jury. The plaintiff argued that his injuries had stabilized, which warranted reduction of the claimed damages. The defendant argued that the amendment would result in non-compensable prejudice because it would result in the defendant losing its right to have the trial heard by a jury. Justice Muszynski granted the relief sought, finding that it was in the interest of justice and the principles of proportionality to allow the matter to proceed under Rule 76.

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.

Belton v. Spencer, 2020 ONSC 5327

The plaintiff was injured in an incident in 2010 and commenced an action for damages in 2012. The defendants filed a jury notice. But for the COVID-19 pandemic, the trial would have proceeded in October 2020. The parties were told by the Court in June 2020 that if the action proceeded by judge alone it might be scheduled in late 2020 or early 2021, whereas if it were to be heard by a jury the trial would not likely be scheduled for at least a year and possibly 18 months. The plaintiff moved to have the jury notice struck due to the delay that would result from waiting until a jury could sit for the trial. Justice Sheard granted the plaintiff’s motion, and struck the jury notice. Justice Sheard noted that a “wait and see approach” in which the jury notice determination would be left for the trial judge to decide was not appropriate in the circumstances, as it would not avoid any delay associated with proceeding with a jury. The defendant’s right to a trial by jury was outweighed by the need to provide the plaintiff with more timely access to justice.

Higashi v. Chiarot, 2020 ONSC 5523

The plaintiff brought a motion to strike the defendants’ jury notice on the basis of the pandemic-related delay that would result in bringing the matter to trial with a jury as compared to a judge-alone trial. The Court confirmed that the trial could proceed virtually at any time if it were heard by a judge-alone, and that it was unknown when a four week civil jury trial could be scheduled. Justice Roger granted the plaintiff’s motion and struck the jury notice, finding that the parties were ready for trial, and the uncertainty resulting from COVID-19 and associated jury trial delays threatened fair trial principles.

Wallace v. Ralph-Edwards, 2019 ONSC 899

The plaintiff suffered vision loss as a complication of a life-saving cardiac surgery. He commenced an action for damages against the doctor who performed the surgery and the hospital where the surgery was performed. The parties resolved certain issues in the action, and the sole remaining issue was the plaintiff’s allegation that the defendant doctor failed to obtain informed consent before performing the surgery. The defendant doctor brought a motion for summary judgment. The plaintiff argued (among other things) that the applicable test for summary judgment was heightened due to the fact that a jury notice had been served. The motion court granted summary judgment, holding that no reasonable person in the plaintiff’s position would have declined the surgery, even if apprised of the very low risk of vision loss. Justice Di Luca noted that there is split authority and no clear appellate guidance on the issue of whether service of a jury notice raises the bar on the test for summary judgment. Justice Di Luca held that the applicable test for summary judgment does not depend on whether a jury notice has been served, reasoning that Rule 20 does not suggest a different test for cases subject to a jury notice; there is nothing in Hryniak suggesting that the summary judgment test is to be applied on a different standard in jury cases; and there is no right to a trial either with or without a jury under the Rules.

Kushnir v. Macari, 2018 ONSC 6128

The plaintiff was struck by a motor vehicle as a pedestrian crossing a private access road near a Loblaws store. She was not crossing in a demarcated crosswalk at the time. The defendant “occupiers” of the area where the collision took place sought to have the claims against them dismissed on a motion for summary judgment. Both parties retained experts who gave conflicting opinions on factual liability issues. Justice Hurley affirmed that cases with conflicting expert opinions are generally not amenable to summary judgment. The Court also noted that the action was subject to a jury notice and that trial by jury is a substantive right which should not lightly be interfered with. The defendant’s motion for summary judgment was dismissed.