Higashi v. Chiarot et al. – Court File No: 14-61439

Full Decision

Guest Author: Adam Aldersley

Counsel for the Plaintiff:
Joseph Y. Obagi and Adam J. Aldersley

Counsel for the Defendants:
Pasquale Santini and Lucas Ostrowski

The Plaintiff brought a motion to strike the jury after her four-week trial, which was scheduled to proceed on March 23, 2020, was adjourned indefinitely one week prior to commencement as a result of the COVID-19 pandemic. The Plaintiff was injured in a motor vehicle collision in September of 2012.

In support of her motion, the Plaintiff had filed an affidavit sworn by a senior law clerk at the Plaintiff’s lawyers’ law firm. The Defendants sought to strike the Affidavit on the basis that it did not specifically identify the source of some information, that some information was provided to the affiant by counsel with carriage of the matter, and that the affidavit listed all of the expert reports of both parties which were to be relied upon at trial, the contents of which constituted hearsay and inadmissible opinion evidence. After hearing submissions of counsel, Justice Roger struck only the words “debilitating” and “for the remainder of her life” from one paragraph of the affidavit for being inadmissible opinion. More importantly, Justice Roger found that the expert reports were only provided for the purpose of providing context, and not for the truth of the opinions contained therein. Limited to that purpose, His Honour found that those paragraphs related to non-contentious issues, and found that they fell within the exception as set out in the decision of Master MacLeod, as he then was, in Narouz v. Desjardins Financial Security, [2014] ONSC 4641 (CanLII).

Although leave to bring the motion was required pursuant to Rule 48.04, leave was not opposed by the Defendants. Nevertheless, the motion Judge found that no matter which test for leave was applied it would be met, as the ongoing pandemic constituted a substantial and unexpected change in the circumstances since filing the trial record, and that it was in the interest of justice to determine how this action will proceed in light of the ongoing pandemic.

At the outset of the Defendants’ submissions, His Honour also advised of his intention to take judicial notice of certain facts relating to the current capacity of the Superior Court of Justice in Ottawa to hear civil jury trials. Justice Roger advised that prior to the motion, he spoke with Regional Senior Justice MacLeod, Justice Gomery and court administration staff, who advised him that:

  • modifications were being made to courtrooms to allow for criminal jury trials to proceed, with the aim of commencing such trials in January of 2021;
  • given the backlog of criminal jury cases, it was unlikely that the modified courtrooms would be made available for civil jury trials;
  • the Court anticipated being able to commence civil judge-alone trials in the courthouse as early as November 2020;
  • Civil judge-alone trials could also proceed virtually;
  • while the Court was considering options for the commencement of civil jury trials, there were as of yet no plans in place;
  • while civil judge-alone trials could be scheduled immediately to proceed within the next 4 months, there was no projection as to when civil jury trials may be heard.

At the outset of the decision, His Honour took judicial notice of the above-listed facts, specifically noting that counsel for both parties agreed that such judicial notice was appropriate.

With respect to the motion to strike itself, Justice Roger found that the applicable test was set out in Cowles v. Balac, 2006 CanLII 34916 (ONCA), noting that while a jury trial is a substantive right which should not be lightly interfered with, a party seeking to strike a jury notice has the onus to demonstrate through just cause or cogent reasons that justice will be better served between the parties by proceeding with a judge alone.

Justice Roger went on to interpret this test in light of Rule 1.04, noting that the principles of a just, timely and affordable proceeding on the merits has been applied beyond the interpretation of the Rules of Civil Procedure, and citing both Cowles and Hryniak v. Mauldin, 2014 SCC 7 as examples.

Justice Roger followed the unreported decision of Gervais v. Kapasi, [1995] O.J. No. 3128, at paragraph 20, wherein Justice Brockenshire noted:

In my view there comes a time when matters in dispute have to be resolved. There comes a time when the cost of litigation outweighs what can be hoped for as a result. I think in this case the time has come. I have considered the grounds put forth. I feel they are novel. I feel they are practical. I feel they meet the needs of present litigation and the needs of parties to be served by the judicial system. I do not think it would be doing justice to the positions of either the plaintiffs or the defendants to again put this off to another day. They have come here prepared and ready to go and ready to present their respective cases to a tribunal for decision. I am prepared to allow them to proceed forthwith. The jury is struck.

Emphasizing that his ruling was being made based on the following particular facts of this case, Justice Roger found that now was the time to resolve the within lawsuit, and thereby struck the jury notice:

  • It is not known when a civil jury trial might be heard in Ottawa.
  • A 4 week judge-alone trial could be heard in the very near future.
  • The parties were ready for trial at the time of the adjournment, and remain so today.
  • Expert reports are ready, and a further significant delay would entail costly updates.
  • The Plaintiff is losing 30% of her pre-trial loss of income for every day that passes as a result of the operation of the Insurance Act.
  • The state of uncertainty resulting from the ongoing pandemic and its impact on the justice system favors a trial by judge-alone at this point in time.

In doing so, Justice Roger rejected the Defendants argument that prejudice could not truly be measured without knowing when a jury trial might be heard, finding that an adjournment for an unknown amount of time creates added uncertainty which would not be in the interest of justice, as it would delay the trial further and increase expenses for both parties.

However, he also added that his decision to strike the jury notice may be revisited, at the request of either party, if new information with respect to the availability of jury trials in Ottawa is made available prior to the commencement of the judge-alone trial in this matter.

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