Louis v. Poitras, 2020 ONSC 6907
This Divisional Court appeal decision serves as a cautionary tale and provides some guidance on the type of evidence that should be advanced on a motion for an order to strike the jury in light of the unprecedented COVID-19 pandemic, as well as the sufficiency of reasons for such a determination.
Summary
The motion decision was previously summarized. Briefly, these actions both arise from a motor vehicle accident which occurred on May 9, 2013 in Ottawa. In one, the plaintiff sued the tortfeasor and the underinsured motorist insurer under the OPCF endorsement. The second is a claim against the accident benefits insurer for treatments that were denied, income replacement benefits, and punitive damages. Jury notices were filed by the defendants in both actions. The two actions were ordered to be tried together, over ten weeks, beginning April 20, 2020.
Due to the COVID-19 pandemic and suspension of regular court operations, the trial did not proceed. The question of when civil jury trials will be available in Ottawa became and remained uncertain. The plaintiffs moved to have the jury notices struck in order that the actions proceed as a non-jury trial before a judge alone.
After an exhaustive review of the relevant caselaw regarding a party’s substantive right to a jury, the motion judge, Beaudoin J., found that justice would be better served by striking out the jury notice, holding that “the real and substantial prejudice arises simply by reason of delay”. The defendants appealed.
The Divisional Court took issue with the fact that:
“the decision of the motion judge was attributed, by him, solely to the presence of delay without any reliance on actual evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated, or its impact on the administration of justice.”
In the Divisional Court’s opinion, there was nothing to which Beaudoin J. referred to in his reasons that considered the particular circumstances in this case, and in “the absence of such information, the decision was arbitrary.”
“The recognition of the presence of delay, without more, is not enough” to justify an order to strike to jury notice.
The appeal was granted without prejudice to a further motion seeking to strike the jury notice with evidence that would provide information to be considered by the court as to either prejudice to the parties or the overall administration of justice, which was missing in the decision of the motion judge.
Main Takeaways
With regard to the necessary evidence to be presented on a motion to strike the jury, the mere statement of delay or the implication of its presence is not enough. There must be some evidence or other indication that contributes to prejudice to the parties or concerns for the administration of justice. In this case the judge relied on delay removed from the specific concerns of the parties. It was this delay that implicated concerns for the administration of justice.
The Divisional Court notes that the previous decisions which involved motions to strike the jury reveal two sources relied on to proffer information concerning possible delay: Notices to the Profession issued through the offices of the Chief Justice and Regional Senior Judges and immediate advice from local judges and other court officials responsible for the organization of the court and its proceedings. These notices are made public and, as matters of public record, are admissible in Court, on their own, without the need to be included as part of an affidavit.
During the submissions in this case, counsel were asked if any of them had made inquiry of court administration as to the availability and timing of any prospective civil jury trial. They had not. The Divisional Court notes that it would have been helpful to the motion judge if they had, as this could speak to the anticipated delay in this circumstance.
With regard to the sufficiency of reasons, the motions judge should have considered prejudice to the parties caused by the prospective delay. First, it was submitted on behalf of the plaintiff that they would be prejudiced financially by further delay as a result of the 70% limit on recovery of past loss of income. However, this concern did not seem to play a role in the decision of the motion judge to strike the jury. He found that “nothing turns on Ms. Louis’ claim for damages for past and future loss of income”. Second, while the motions judge brought up the deductible and its yearly inflation as a possible limitation on non-pecuniary damages, this was also not a consideration in his decision.
The motions judge should have also considered the impact on the court and administration of justice as a whole in light of the COVID-19 pandemic besides the interests of the parties alone.