Henry v. Zaitlen, 2021 ONSC 456

Guest Author: Katelynn Drake, Legate Personal Injury Lawyers

Full Decision

The Ontario Superior Court in Toronto recently dismissed the defendant’s motion to strike the jury notice in Henry v. Zaitlen 2021 ONSC 456, days after the Ontario Court of Appeal’s decision in Louis v. Poitras [2021 ONCA 49]

*Please note that after publication of this summary, the Leave to Appeal sought by the defendant was denied by the Divisional Court.

Case History
The case arises out of alleged medical negligence on the part of Dr. Marshall Zaitlen in the care he provided to the Plaintiff throughout 2010. As a result, the Plaintiff sustained a catastrophic spinal cord injury rendering him an incomplete paraplegic with impaired gait, neurogenic bladder and bowel, and neuropathic pain. The action was commenced in 2012, and the action was set down in 2017; in 2018 a trial date was agreed upon. At that time, expert reports were not yet completed.

Trial was scheduled to proceed in late March 2020. A pretrial in the action took place in early February 2020. At the pretrial, the plaintiffs gave notice that they may object to expert reports that were contemplated by the defendants, but not yet served. In particular, the plaintiff cited potential issues with getting their own responding report in advance of the trial. The additional Defence reports were served one business day before a second pretrial took place on March 2, 2020.

The Honourable Chief Justice issued a Notice to the Profession stating that as of March 17, 2020, regular court operations were suspended due to the pandemic. In October 2020, the January 18, 2021 trial date was adjourned on consent at the request of counsel for the defendant due to a personal conflict in his schedule. A new trial date of February 16, 2021 was set. On January 13, 2021, the Chief Justice issued an Updated Notice to the Profession suspending jury trials until May 3, 2021 at the earliest.

On January 15, 2021, the defendant brought his motion to strike the jury in this case, seeking to proceed with a virtual trial by judge alone. In support of his motion to strike the jury notice, Dr. Zaitlen cited excessive delay and a lack of certainty as to when the case would be heard if the trial proceeded with a jury. Dr. Zaitlen identified his feeling stressed and anxious by the delay as well as impacts on his medical practice for trial preparation, resulting in prejudice to him.

Principles on a Motion to Strike
In deciding the motion, Her Honour took judicial notice of the government announcements related to COVID-19, and referred to further Notices to the Profession issued by the Chief Justice. As of the date of her written decision, jury trials in Toronto had been suspended until May 3, 2021 at the earliest, and the province remained in a state of emergency with a stay at home order. Schools were closed in the Toronto area. Although jury trials were not proceeding at this specific time, they had occurred throughout the COVID-19 pandemic in Toronto using COVID-19 safety protocols including, for example, retrofitted courtrooms, and off-site jury selection.

Her Honour laid out the legal and foundational principles regarding juries and motions to strike a jury. Although the parties have a right to a jury, that right is not absolute and must yield to practicality in some circumstances. The test is whether there are features in the factual or legal issues to be resolved, in the evidence, or in the conduct of the trial that warrant dispensing with the jury. The question the Court must determine is whether the moving party has demonstrated that justice will be better served by discharging the jury. It is the moving party that bears the onus of showing that justice will be better served by striking the jury.

Importantly, Her Honour dealt with the recent Ontario Court of Appeal (ONCA) decision, Louis v. Poitras, which came out after this motion had been heard but before her decision was rendered. In Louis, the plaintiffs brought a motion to strike the jury notice in a motor vehicle action. The grounds for the motion included the excessive delay in the case and the COVID-19 pandemic creating circumstances in the Ottawa region that made a jury trial date uncertain. There were no or minimal COVID protocols in place in Ottawa at the time, and no civil jury trials had proceeded since the outbreak of the pandemic. The motion’s judge struck the jury and ordered it to proceed in stages, citing the principles in Hyrniak v. Mauldin [2014 SCC 7] and access to timely justice in these uncertain times. The defendants appealed to the Divisional Court, which allowed the appeal and reinstated the jury notice on the basis that the motion judge’s decision was arbitrary as delay, on its own, was cited in his reasons as warranting his decision. The plaintiffs further appealed to the ONCA on an urgent basis to stay the Divisional Court’s order and requested that the motion for leave and the appeal to be heard together. Both leave and the appeal were granted by the ONCA, and the order of the motion judge was reinstated and cited the broad discretion granted to motion judges on motions to strike a jury.

In Henry v. Zaitlen, Justice Ramsay held that Louis v. Poitras did not change the law on a motion to strike, but rather confirms the state of the law and the discretion of the trial or motion judge hearing these types of motions. The decision to strike a jury notice or discharge a jury should be decided on a case-by-case basis considering whether justice would be better served by dispensing with the jury. While delay is one factor that can be considered, and that a finding based on delay alone is not arbitrary, local conditions are a factor to be examined when considering delay and its effect on the administration of justice. Louis does not suggest that delay is a factor that must be weighed more heavily or to the exclusion of other competing factors.

Ramsay, J. noted that at the heart of the issue in the ONCA in Louis is the question of the extent to which an appellant court may interfere with the motion/trial judge’s discretion. The ONCA provided guidance to intermediate appellate courts with respect to the discretion afforded motions judges in hearing these motions, and the importance of local judges’ knowledge of local resources and pandemic responses. It is for local judges to determine how justice could best be administered in each jurisdiction, as there is no province-wide answer to the pandemic’s effect on the judicial system. What must remain consistent across the province, the ONCA said, “is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.”

Evidence on the Motion to Strike
To determine how the administration of justice would be best served in this case, Justice Ramsay considered, at length, the conditions in Toronto, and Toronto’s resources and response to the pandemic. She specifically noted that Toronto has a dedicated civil bench, retrofitted courtrooms, as well as off-site venues for selection of jury panels. She also referred to the positive developments with vaccines, and the fact that members of the public will, at some point, be vaccinated against COVID-19. In particular, she noted that Toronto already heard civil jury trials during the pandemic. With those factors in mind, she found that there is some date on the horizon for civil jury trials to resume in Toronto; this was not a situation with an indeterminate delay. She noted that this is finding is in contrast to other regions, such as Ottawa where Louis was decided.

After considering delay related to the pandemic, Justice Ramsay moved on to consider litigation delay and any prejudice arising therefrom. She acknowledged that this was an old action, but there was no evidence before her with respect to the cause of the litigation delay in getting the matter on for trial or any party being responsible for delay. The only delay that she could find was a reference to the Defendant’s late service of expert reports in the trial management documents, which was fortuitously remedied by the first adjournment in 2020 and the short consent adjournment at the request of the defence. The prejudice due to delay would point, therefore, more to the adjournment caused by the pandemic.

In considering the prejudice to the Defendant, it was noted that the Court takes seriously the stress of preparing for another trial date and the disruptive impact of doing so on his medical practice. However, the Defendant provided no evidence of actual economic loss on his practice and conceded that COVID itself had impacted his medical practice in any event. The Court found that the stress and disruption would result from trial preparation regardless.

In his affidavit, the Plaintiff referred to various sources of prejudice to him should the case proceed with a judge alone and virtually, namely the functional prejudice of losing a jury and his limitations or challenges with proceeding virtually.

With respect to the functional prejudice, the Plaintiff stated that he had prepared for a jury trial for more than seven (7) years. During that time, specific strategies had been employed that were intended for a trial with a jury and to strike the jury at this late date would result in economic loss and a substantial loss of trial preparation. The Plaintiff himself also acknowledged his understanding of the differences between a judge alone trial and a trial by jury, noting that he wished to have members of the community determine the issues in dispute. Aligning with the legal principles enunciated by the Supreme Court of Canada,[1] Counsel for the Plaintiff stated that the role of a jury is to apply their collective judgment, life experience, community values and common sense, and that juries are an integral part of how we, as Canadians, govern ourselves in a free and democratic society. This was particularly important in a medical malpractice case where the standard of care at issue is that of a doctor practicing in the public health care system. In distinguishing the role of a jury from the role of a judge, Counsel also clarified for the Court that this distinction was a matter of importance to the Plaintiffs.

In discussing his challenges with proceeding virtually, the Plaintiff’s evidence was that:

  • he would be unable to properly consult with his Counsel prior to and throughout the trial,
  • he did not have proper technology nor a private space within his home to provide testimony or otherwise participate in and follow the trial,
  • he had childcare issues because his 7 year old son was doing at-home learning during the school closure, and
  • he had significant physical limitations and emotional challenges making virtual participation challenging.

This evidence was unchallenged and uncontradicted.

Justice Ramsay considered the positions of both parties; she considered the prejudice to the Defendant, the delay of 11 years, delay related to the pandemic and the prejudice to the Plaintiff. She found that the defendant, who submitted that the predominant and deciding factor was the delay, had not discharged his onus to demonstrate to the court that the administration of justice in this case was best served by discharging the jury.

Justice Ramsay instead concluded that a “wait and see” approach ought to be adopted given the stated date of May 2021, at which time jury trials may resume and that Toronto was equipped to conduct jury trials during the pandemic. She found this was consistent with Hryniak in facilitating access to timely and proportionate civil justice.


[1] See for example King v. Colonial Homes, [1956] SCR 528

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