Cowley v. Skyjack Inc. et al, 2021 ONSC 1303 (CanLII)

Guest Author: Hamish Mills-McEwan, McNally Gervan LLP

Full Decision

An Ottawa judge recently applied the Ontario Court of Appeal’s analysis in Louis v. Poitras, 2021 ONCA 49 to strike the jury notices filed in Cowley v. Skyjack Inc. et al., 2021 ONSC 1303.

While the procedural history in Cowley is unique, the motion turned on a relatively straightforward analysis that confirms the prejudicial effect of delay.

The plaintiff was injured while descending from an aerial work platform known as a “Skyjack”, resulting in a degloving injury. The plaintiff sued the owner of the Skyjack, the general contractor on the project, and an electrical subcontractor. The product liability claim against the manufacturer of the Skyjack was resolved through a Pierringer agreement.

Procedural History
The claim was issued in 2014 and discoveries were conducted in 2015. The claim was mediated in 2016. The trial record was passed, and the trial was scheduled in 2017, with the trial date fixed for January 13, 2020.

In early 2020 the trial was adjourned until January 27, 2020. The plaintiffs then brought two motions to be heard at trial. One motion concerned the deductibility of collateral benefits, (reported as: Cowley v. Skyjack Inc. et al., 2020 ONSC 1718), and the other concerned expert testimony. During a Trial Management Conference Justice Corthorn increased the time estimate for the trial in consideration of the two motions and concluded that due to her availability and other trial commitments, the trial would have to be adjourned. The allotted trial time would be used to hear the motions. The parties agreed that Justice Corthorn would remain the trial judge and that the motions would be treated as motions at trial, including for the purpose of appeal.

In the intervening period, the COVID-19 pandemic was declared and court operations throughout the province ceased. In October 2020, the plaintiffs moved for an order striking the jury notices and fixing a new trial date. The motion was opposed by the remaining defendants.

In addition to seeking leave to bring the motion after setting the action down for trial under Rule 48, the plaintiff advanced two grounds to strike the jury notices.

The plaintiff argued that the particular circumstances in Ottawa, as a result of the COVID-19 pandemic, necessitated striking the jury. Secondly, the plaintiff argued that the jury ought to be struck on the grounds of complexity. After the motion was heard, the decision having been reserved, the Ontario Court of Appeal released its decision in Poitras.

Justice Corthorn added to the growing body of decisions holding that leave to bring such a motion during the COVID-19 pandemic is all but assured by applying the differing tests for leave found in Denis v. Lalonde, 2016 ONSC 5960, and BNL Entertainment v. Ricketts, 2015 ONSC 1737. Justice Corthorn concluded that regardless of which test was applied, the plaintiff had met his burden.

Justice Corthorn found it unnecessary to consider the complexity argument prior to hearing evidence at trial, and instead found that based on the particular circumstances including: the backlog of criminal trials which will take precedence over civil trials, the limited number of retrofitted courtrooms in Ottawa, the suspension of civil jury trials that had not yet been lifted, and the single jury deliberation room in Ottawa, the jury notice ought to be struck.

The Court also confirmed and relied on the Court of Appeal’s statements that delay in and of itself can be prejudicial, and that the overriding goal of the civil justice system is to provide the most expeditious determination of every civil proceeding on its merits.

Conclusion and Takeaways
The Court of Appeal has confirmed that delay in and of itself can be prejudicial. Nevertheless, it remains important to present evidence relating to the length and the impact of the delay, as well as the uncertainty surrounding the conduct of jury trials in many jurisdictions. Indeed, local circumstances remain paramount, as court resources, practical realties, and the progression of the COVID-19 pandemic, all have a bearing on whether striking a jury notice is in the interests of justice.

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