In a groundbreaking decision, the Court of Appeal for Ontario in Louis v. Poitras, 2021 ONCA 49, set aside the Divisional Court judgment and restored the motion judge’s order to strike the jury by reason of delay arising from the COVID-19 pandemic.
This is the first appeal decision to consider the impact of the pandemic on a motion to strike a jury notice.
Facts
The plaintiffs were involved in a motor vehicle accident in Ottawa on May 9, 2013. Jury notices were filed by the defendants in the tort and accident benefits actions, which were ordered to be tried together in a 10-week jury trial commencing 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 remains uncertain.
Procedural History
In July 2020, the plaintiffs moved for an order striking the jury notices in both actions, which the motion judge granted on September 9, 2020. The motion judge ordered the trial to proceed in three-week tranches and directed the parties to attend Trial Management Court to obtain the first available date for trial. At an October 9, 2020 case conference, the first three-week tranche of the trial was scheduled to commence on February 22, 2021.
The defendant insurers appealed the motion judge’s order to the Divisional Court. On November 16, 2020, the Divisional Court allowed the appeal, reinstating the jury notices in both actions. The Divisional Court concluded that the motion judge’s decision was arbitrary because it was attributed solely to the presence of delay and lacked sufficient evidence of actual prejudice to the parties or for the administration of justice.
The plaintiffs moved to stay the Divisional Court’s order pending appeal to this court. The Court of Appeal granted the stay, finding strong grounds to suggest that the Divisional Court misapprehended relevant facts, particularly regarding uncertainty in Ottawa as to when and how a jury trial might proceed in light of the pandemic.
Leave to Appeal
In granting leave to appeal, the Honourable Justice Hourigan was satisfied that the Divisional Court’s analysis showed an obvious misapprehension of the relevant facts and the appeal raised a matter of public importance regarding the administration of civil justice.
Analysis
Justice Hourigan addressed the following three key findings that emerged from the Divisional Court’s reasons.
First, the Divisional Court’s finding that delay alone is not enough to strike the jury notice. According to the Divisional Court, there must also be proof of some additional prejudice before a court is justified in striking a jury notice. Justice Hourigan upheld the motion judge’s finding that the real and substantial prejudice arises simply by reason of delay. This is a legally permissible finding and delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.
Second, the Divisional Court expanded the scope of its analysis beyond the interests of the parties and considered the broader context of the civil justice system during the pandemic. While the Divisional Court purposed to consider the administration of justice, Justice Hourigan held that it ignored the realities of the current situation. Instead, “a proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case… An appeal court must respect the reasonable exercise of this discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.”
Third, the Divisional Court undertook a comparison of the circumstances of the cases at bar to other cases where the pandemic was considered in the context of a motion to strike a jury notice. Justice Hourigan was particularly concerned with the Divisional Court’s analysis of Higashi v. Chiarot, 2020 ONSC 5523, another Ottawa case released eight days before the motion. There, the motion judge made inquiries of the Regional Senior Judge, court staff, and the judge in charge of civil litigation in Ottawa regarding the status of the civil list. The Divisional Court accepted that the court in Higashi had a sufficient evidentiary foundation to make an order striking the jury notice, and yet concluded that the motion judge’s decision was so lacking an evidentiary basis that it was arbitrary. Justice Hourigan questioned why the motion judge could not rely on the information from Higashi regarding the status of the availability of civil jury trials in Ottawa. How exactly can reliance on very recent information in a judicial colleague’s decision qualify as an arbitrary exercise of discretion?
Regardless, Justice Hourigan found that the motion judge took a detailed analysis of Ottawa’s situation and reached his own conclusion regarding the status of civil jury trials in the city. The motion judge turned his mind to the local conditions and made an unassailable finding that it was unknown when or why a jury trial might be heard in these matters.
Conclusion
Justice Hourigan concluded that the motion judge was entirely justified in striking the jury notices: “I concur with the comment of Brown J.A. that this finding was correct at the time of the motion; correct at the time of the Divisional Court hearing; and correct today.”
The Court of Appeal for Ontario allowed the appeal, set aside the judgment of the Divisional Court, and restored the order of the motion judge striking the jury notices.
Takeaways
Delay in obtaining a date for a civil trial can, by itself, constitute prejudice and justify striking out a jury. The civil justice system guarantees to the public, as captured in Rule 1.04(1), that courts will work to provide “the most expeditious… determination of every civil proceeding on its merits”. This guarantee is undermined when trial dates are delayed.
According to the Court of Appeal, “implicit in [the Divisional Court]’s reasoning is that delay is to be expected and tolerated; it is the ordinary course.” The Court of Appeal clearly and unequivocally rebuked that approach and stated it is “precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.”
The Court of Appeal’s decision goes well beyond delays in the context of motions to strike a jury notice. It is directing the lower courts to move forward with a culture change to allow for timely justice. Judges are encouraged to find creative ways to ensure that parties get their day in court in a timely manner. Justice Hourigan stated, “there is no single province-wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.”
