Guest Author: Brent Love, White Macgillivray Lester LLP
In this case the Ontario Court of Appeal granted the Plaintiffs’ request to stay the Divisional Court’s order reinstating the Defendants’ jury notices.
In coming to this decision, Brown JA found that, “Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”
Brown JA applied the RJR-MacDonald three-part test for obtaining a stay of a judgment pending appeal: (1) is there a serious question to be determined on the appeal; (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay?
As this stay motion was in the context of a motion to leave to appeal to the Court of Appeal in the “serious question” factor, Brown JA also considered the Sault Dock principles governing applications for leave to appeal from order of the Divisional Court. The principles considered were whether the appeal raises a matter of public importance and whether there was an obvious misapprehension of the relevant facts by the Divisional Court.
Background Events
Ms. Firma Louis was involved in a motor vehicle collision on May 9, 2013. Two actions resulted: a tort action and an accident benefits action. Jury notices were filed in each action.
The trial of the tort action was schedule for May 2018. It was adjourned because plaintiffs’ counsel was in a trial on another matter. Subsequently the two actions were ordered to be tried together in a 10-week jury trial commencing on April 20, 2020.
Due to COVID-19 the April 20, 2020 trial date was lost. All parties were ready for trial and but for the pandemic the trial of both actions would have proceeded at that time.
The Plaintiffs moved for and were granted an order striking the jury notices in both actions.
The first three-weeks of the trial were scheduled to commence on February 20, 2021.
The Defendants sought leave to appeal the motion judge’s order to the Divisional Court. The Divisional Court granted the Defendants’ leave to appeal and allowed the appeal. It found that the motion judge had exercised his discretion to strike the jury notices arbitrarily.
The Plaintiffs filed a notice of motion for leave to appeal the Divisional Court order to the Court of Appeal and initiated a motion to stay the Divisional Court order.
First Factor: Serious Question to be Determined
Brown JA found that the questions raised by the Plaintiffs met the “serious question” threshold in RJR-MacDonald, applied in light of the Sault Dock principles.
First, Brown JA found that there was arguably an obvious misapprehension of the relevant facts by the Divisional Court. The motion judge clearly explained the current and future availability of civil jury trials in Ottawa and the specific circumstances of the parties. Based on the motion judge’s findings it was a legally permissible finding that the real and substantial prejudice arose simply by reason of delay.
Second, the question of whether appellate courts should support or restrain efforts by motion judges exercising their broad discretion regarding the time and mode of determining a civil proceeding not only raised a matter of public importance, but it also raised existential questions about the future viability of Ontario’s civil justice system.
Second Factor: Irreparable Harm
Brown JA found that the Plaintiffs would suffer irreparable harm in the following three ways if a stay was not granted:
- There was a very high risk that the Plaintiffs would lose their currently scheduled trial date.
- If the trial date was vacated that Ms. Louis would suffer a non-compensable reduction of her income loss claim.
- There was no certainty as to when civil jury trials will resume in Ottawa and the plaintiffs would be consigned to trial scheduling limbo for an uncertain, unpredictable, and unforeseeable period of time.
Third Factor: Balance of Convenience
Brown JA found that the balance of convenience overwhelmingly favoured granting the Plaintiffs’ request to stay. The Defendants had not explained what litigation disadvantage they might suffer if the trial was to be judge alone instead of with a jury. The absence of a functional litigation disadvantage, when weighed against the irreparable harm to the Plaintiffs, weighed in favour of granting the stay.
Brown JA also found that granting a stay was reinforced by a holistic consideration of the three components in light of the overarching interest of justice consideration. Specifically, that this was an old action and should have been tried long ago, the parties were ready for trial, a creative motion judge directed for a trial that would mitigate the pandemic’s delay, the continuation of the pandemic renders unknown and unpredictable when civil jury trials will resume but a judge-alone trial can start in just over two months, and starting the trial will mitigate the statutory diminution of the income loss claim.
Expediting the Hearing of the Appeal
Brown JA granted the Plaintiffs’ request for leave to appeal to be heard orally on an expedited basis, together with the appeal. One of the reasons for granting this request was that the issue of civil jury trial schedule during the pandemic has been raised in several cases and may require consideration by the Court of Appeal before the pandemic ends.
This appeal has been scheduled to be heard on January 20, 2021.
This motion decision and the subsequent appeal may have impacts beyond COVID-19 related delays. For instance, Brown JA noted that, “While the long duration of the pandemic has many actors in the civil justice system desiring to ‘return back to normal’, one must not forget that the ‘good old ways’ caused unacceptable delays and are the very ways that the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87 and R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631 has charged the court system to discard.”
