Introduction
The Appellant is a Defendant in a personal injury action in which the Plaintiff seeks damages for injuries suffered when kicked by a horse in May 2010. Both parties requested a Trial by jury. The action was set down for Trial in 2017 and was originally placed on the Trial list for the November 2018 sittings.
The Trial of this action was traversed multiple times for various reasons, including the anticipated late delivery of expert reports, travel plans, an increase in the number of witnesses and lack of availability. Eventually, the matter was traversed to the October 2020 sittings. It was directed that the action be placed on the Hamilton long Trial sittings commencing October 5, 2020 for a six-week jury Trial.
The COVID-19 pandemic hit Ontario in March 2020, restricting the scope of the Superior Court of Justice’s operations. Regional Senior Justice Arrell advised the parties in June 2020 that it was unlikely that civil jury Trials would take place in 2020 due to the pandemic, and that the Trial would likely be further delayed.
As a result, the Plaintiff moved to strike out the jury notices. This was granted by way of Order from Justice Sheard dated September 4, 2020 (Belton v. Spencer, 2020 ONSC 5327).
The Defendant filed a notice of appeal to the Court of Appeal in response. The Plaintiff filed a Notice of Motion to quash the appeal on the basis that the Order was interlocutory, and as such, the appeal lay with leave to the Divisional Court.
On September 23, 2020, the parties were advised by RSJ Arrell who advised that the Trial was first on the Hamilton non-jury Trial list and that it would begin on October 5, 2020.
On September 22, 2020, the Appellant served a Notice of Motion seeking to state a case before the Court of Appeal pursuant to Rule 22.03.
On September 24, 2020, the Appellant served a Notice of Motion seeking to stay the Order of Justice Sheard.
The Respondent’s Motion to quash the appeal and the Appellant’s Motion to state a case are scheduled to be heard by the Court of Appeal in November 2020.
Order Sought
Although both parties are ready for Trial, they differ in that the Appellant seeks a Trial with a jury, while the Respondent seeks a Judge-alone Trial.
The Appellant sought an Order staying the Order under appeal, which is the Order of Justice Sheard dated September 4, 2020, which in turn would stay the action and adjourn the Trial to a date in 2021, as directed by the Regional Senior Justice after the appeals processes have been exhausted.
Legal Test for a Motion to Stay an Order
The Supreme Court of Canada has articulated the principles that apply to a Motion to Stay an Order pursuant to R. 63.02(1) in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC). In RJR-MacDonald Inc., the Supreme Court of Canada articulated a three-part test for obtaining a stay of a judgment pending an appeal:
- Is there a serious question to be tried (i.e. to be determined on appeal);
- Will the moving party suffer irreparable harm if the stay is not granted; and
- Does the balance of convenience favour granting the stay?
(1) Is there a serious question to be tried?
The Appellant outlined that the serious question to be tried concerned the substantive right to a Trial by jury amidst the concern about Trial delay associated with the COVID-19 pandemic. Further, she added that the Motion judge erred by permanently depriving her of the substantive right to a Trial by jury on the eve of trial, and that the Motion judge failed to recognize the importance of such a right by failing to properly balance that right with a proportionate concern for Trial delay and the lack of prejudice to the Respondent.
The Court noted that case law indicates that there is significant discretion afforded to the judge when considering a Motion to strike out jury notices. In order to justify appellate intervention, it must be demonstrated that the Motion judge’s discretion was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law” (Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93, at pp. 69-70).
The Appellant alleged that the Motion judge did not adopt a “wait and see” approach to the Motion to strike, which she argued contradicted decades of established authority in which a Motion judge defers to the Trial judge the issue of whether to strike the jury notice, as described in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 70.
The Court found that the “wait and see” approach was not a rule of law, and that the Motion judge had examined the principles in Cowles and how they have been subsequently applied. The Motion judge explained that the Motion to strike required her to apply the principles in the context of the reality that the courts faced. This involved two considerations: first, the Superior Court of Justice suspended civil jury selection and jury trials in March 2020; and second, there had been no announcements as to when the Hamilton courts would be able to resume conducting civil jury trials. As a result, the Motion judge determined that if a “wait and see” approach was taken, then there would be a delay in the scheduling of the Trial, which is what the Plaintiff sought to avoid. As such, this approach was determined to be unsuitable.
The Court examined the Motion judge’s reasons and found that it was not apparent that she exercised her discretion based on a wrong principle of law. Further, it was noted that it was not apparent that the Motion judge exercised her discretion arbitrarily or capriciously. The Motion judge had provided the results of her balancing exercise when weighing the different factors at paragraphs 45 and 47 of the reasons for her decision. As such, it was determined that the merits of the questions the Appellant sought to have determined on the appeal were weak.
The Court also commented on the issue as to whether the Appellant had appealed to the wrong court. The Respondent had taken the position that the Order was interlocutory in nature, and as such, the Appellant should have appealed to the Divisional Court with leave.
Following a review of relevant case law, the Court commented that the weight of authority held that an Order striking out a civil jury notice was interlocutory in nature. Therefore, it was determined that the “question to be determined on the appeal” factor mitigated against granting the requested stay.
(2) Irreparable Harm
The Appellant argued that if a stay of the Order is not granted, she will suffer irreparable harm in three ways.
First, the Appellant argued that she would lose her substantive right to a civil jury Trial, which constitutes irreparable harm. The Court noted that the right to a jury is a qualified, not an absolute, right, and is subject to removal where justice to the parties would be better served by the discharge of the jury. Ultimately, the Court stated that, without evidence of a specific litigation disadvantage caused by the stay, the prospect of proceeding to Trial without a jury would not cause irreparable harm.
Second, the Appellant argued that if the stay is not granted and the Trial proceeds, the appeal would be rendered moot, causing irreparable harm. The Court noted that irreparable harm may arise where the failure to grant a stay may render an appeal moot, however, that this was not such a case given that she had voluntarily opted to appeal to this court, rather than to the Divisional Court, knowing that the order was interlocutory in nature.
Third, the Appellant argued that if the stay was not granted, it would be a waste of judicial resources to start a Trial before the appeal is heard. The Court found that this contention was speculative and remote.
The Court ultimately concluded that the Appellant did not demonstrate that she would suffer irreparable harm if the stay was not granted.
(3) Balance of Convenience
Finally, the Appellant submitted that the balance of convenience favoured preserving the status quo of the parties’ agreement to proceed to Trial before a jury.
The Court noted that this argument ignored the impact that the COVID-19 pandemic has had on the ability of the Superior Court of Justice to offer civil jury Trials for the balance of 2020. Further, it indicated that in response to the pandemic, the Respondent re-assessed his desire for a jury Trial and moved to strike the jury notices so that a Trial could occur in a timely manner, rather than be forced to wait another 12 to 18 months for a civil jury Trial, which would result in an unconscionable delay.
The Court found that precedent dictated that the balance of convenience overwhelmingly favoured not granting a stay of the Order and allowing the Trial of this ten-year old action to proceed without a jury.
Conclusions
As outlined above, the Court concluded that all three components of the RJR-MacDonald test favoured refusing the granting of the stay. This was further reinforced by a holistic consideration as to whether it is in the interests of justice to grant a stay: the Court reiterated that the date of loss occurred ten years ago, the parties are ready for Trial, and the COVID-19 pandemic has disrupted the Court’s scheduling ability.
Further, it was emphasized that the Central South Region had a judge available to try the case immediately. Forcing the parties to wait over a year in this context was noted to be an unconscionable delay. As such, the Court stated that the qualified right to a civil jury Trial would be completely contrary to the interests of justice.
The Appellant’s Motion for a stay was ultimately dismissed.
