Tag Archives: trial

The Impact of Criminal Trials on Civil Trials: What to Know

Written By: Nick Todorovic and Aidan Vining, Student-at-Law

The Impact of Criminal Trials on Civil Trials: What to Know

Many wrongful acts that people commit can be subject to both criminal and civil proceedings. For example, a drunk driver may hit someone and be charged criminally and the injured person may then also commence a civil suit against the drunk driver to recover damages. Generally, the criminal trial will finish before the civil trial. In more cases, only the accused/defendant can participate in both proceedings. The victim can only participate in the civil proceeding. The prosecution dictates the conduct of the criminal proceeding.

It is important to understand that not only can a wrongdoer be subject to both criminal and civil proceedings, but the outcome of the criminal trial does not necessarily determine the outcome of the civil trial. Section 11 of the Criminal Code specifically states:

Civil Remedy Not Suspended

11 No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

This means that just because a person is acquitted in the criminal trial against them, it does not mean that they are immune from civil liability. An accused that is found not guilty at their criminal trial can still be found liable in a civil trial and be forced to pay damages for the losses they caused.

This may surprise some people. An example that many might be familiar with is the notorious case of OJ Simpson. OJ Simpson was infamously found not guilty for the murder of his wife, Nicole Brown Simpson, and Ron Goldman. However, in a civil trial following the criminal trial, OJ Simpson was found liable for the wrongful death of and battery against Ron Goldman and the battery against Nicole Brown Simpson. The civil jury ordered OJ to pay $35,500,000 in damages.

So, how does that work? How can someone be found not guilty in a criminal trial but then be liable for the same act in a civil trial? The answer is that the two systems have different standards of proof that are required to find a wrongdoer either guilty (criminal) or liable (civil).

Criminal Standard – Beyond a Reasonable Doubt

The standard of proof that the prosecution in criminal cases must satisfy a judge or jury before an accused can be convicted is that the accused is guilty beyond a reasonable doubt. This is a very high standard. The “beyond a reasonable doubt” standard goes beyond our everyday conception of decision-making and is close to being absolutely certain.

The reason for this high standard is the constitutionally protected presumption that the accused is innocent until proven guilty. Criminal proceedings may result in an accused being sentenced to imprisonment. Denying a person of their liberty is not something that is taken lightly. Therefore, the prosecution must prove that the accused is guilty beyond a reasonable doubt.

Civil Standard – Balance of Probabilities

In a civil proceeding, the standard of proof is determined on a balance of probabilities. What this means, is that the trier of fact (either a judge or jury) must be satisfied that it is more likely than not that the facts being alleged are true. This standard has also been referred to as the 51% standard. Rather than needing to prove something close to absolute certainty, a plaintiff in a civil trial need only demonstrate that it is more likely than not that their case is made out.

One of the reasons for this lower standard is that, unlike criminal proceedings where an accused may be imprisoned, civil proceedings are about compensating victims and putting them back into the position they would have been in had the wrongful act not occurred. There is no threat to the defendant’s liberty, and therefore the case against them does not need to be proved beyond a reasonable doubt.

Impact of Criminal Proceedings on Civil Proceedings

Now that we know an act can attract both criminal and civil proceedings, what impact does a criminal conviction or acquittal have on the civil proceeding?

Impact of a Criminal Conviction

A conviction in a criminal trial can make a significant impact on the civil proceedings. A finding of guilt can be used in the civil suit as proof that the crime was committed by the defendant. This is specifically provided for by Ontario’s Evidence Act at section 22.1, which essentially creates a rebuttable presumption of wrongdoing. It is possible for a defendant to rebut this presumption, but it gives the plaintiff a leg-up in the proceeding and makes things considerably more difficult for the defendant. This makes the finding of liability of the defendant significantly easier in the civil suit and moves the focus of the case to determining the amount of damages owed for the wrongful act.

Impact of Criminal Acquittal

While a criminal acquittal may come across as a victory to defendants, it does not mean defeat for plaintiffs. Acquittals do not create the same legal presumption in civil suits that convictions do. Acquittals also do not mean that the person is innocent. It means there was at least a reasonable doubt as to whether the person was guilty. However, as discussed above, the standard of proof is lower in civil suits and therefore it need only be proven that it is more likely than not that the wrongful act occurred. This is how OJ Simpson was acquitted in the criminal trial (due to the jury determining there was reasonable doubt), but found liable in the civil suit (the jury determined he more likely than not committed the murders). Thus, all hope is not lost for plaintiffs.

In fact, there can also be benefits of an acquittal from a civil perspective. When determining damages in a civil suit, the plaintiff can claim punitive damages (i.e. punishment). The focus is on compensating the plaintiff and putting them back into the position they would have been, had the wrongful act not occurred. However, where an egregious or particularly terrible act has been committed, a court may decide to punish the defendant through additional punitive damages. This would be much less likely if the defendant was already being punished through the criminal system. On the other hand, if the court feels as though the defendant escaped their punishment through an acquittal, the defendant may receive that punishment through punitive damages that are awarded to the plaintiff.

The outcome of a criminal trial may seem like it carries significant weight for civil suits, but that is not necessarily the case. To ensure your interests are taken care of, it is important to have an experienced team of lawyers on your side that are familiar with the intersection of criminal and civil proceedings.

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Overview of the Case

McKee v. Marroquin is a case arising from a motor vehicle collision that occurred on June 10, 2016, in which the plaintiff was seriously injured. The plaintiff issued a statement of claim on August 21, 2017, alleging that the accident and resulting injuries were due to the negligence of the defendants. In response, the defendant served a statement of defense and jury notice on December 14, 2017. Upon the completion of examinations for discovery of all parties, the plaintiff filed the trial record on April 20, 2018. The defendants objected, stating that numerous undertakings given by the plaintiff on discovery were still outstanding.

On November 15, 2019, the parties attended a pre-trial conference and were advised that they were ready to proceed to trial. The action was subsequently set down for trial for May 2020. Due to the disruption of the regular operation of the courts as a result of the COVID-19 pandemic, the trial was delayed. At a second pre-trial conference in June 2020, the parties once again advised that they were ready to proceed to trial. The trial was delayed once again and ultimately adjourned to the blitz sittings in January 2022 to be heard with a jury.

Leave under Rule 48.04(1)

The defendants objected to the plaintiff’s ability to bring a motion to strike the jury notice in violation of Rule 48.04(1). Under Rule 48.04(1) of the Rules of Civil Procedure, a party that has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

The defendants maintained the position that the plaintiff should not have been able to bring a motion due to the fact that the action had already been set down for trial. The defendants’ further argued that the plaintiff had not answered all of the undertakings given on discovery.

Emery J., for the Court, outlined a three-step test to determine whether leave should be granted under Rule 48.04(1):

[14] First, the court must determine whether the change to the circumstances is substantial or unexpected. Second, the court goes on to decide whether it would be manifestly unjust if leave was refused, or if it is necessary in the interests of justice to grant leave, as the case may be. Third, the court should exercise its discretion whether to grant leave having regard to all of the circumstances.

In granting leave, Emery J. referenced recent decisions on motions to strike jury notices in actions from Central West Region, the majority of which found that the pandemic was a substantial or unexpected change in the circumstances such that leave to bring the motion to strike should be granted.

Motion to Strike

Emery J. reviewed the principles related to motions to strike the jury notice:

[28] The bedrock principles behind the right to a jury in a civil case, what is required to displace that right, and the discretion of a judge to strike a jury notice are well settled.  Those principles were reviewed by Hourigan J.A. on the appeal in Louis v. Poitras, and by Trimble J. in Roszczka.  Notably, they include the principle restated by the Court of Appeal in Cowles v. Balac 2006), 2006 CanLII 34916 that the right to a civil jury trial is a substantive right that must not be interfered with except for just cause or cogent reasons.  The Court in Girao v. Cunningham2020 ONCA 260 also confirmed that, while the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality.

[29] Brown J.A. described the scope of this discretion in Belton v. Spencer2020 ONCA 623 as a qualified right.  The judge hearing the motion has “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.”  Brown J.A. went on to emphasize that the paramount objective of the civil justice system is to provide the means for the disputes of parties to be resolved in the manner most just between the parties.

[30] In Louis v. Poitras, Hourigan J.A. put a fine point on this discretion by stating that “motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.”  This corresponds with the view expressed by Brown J.A. in Spencer that the discretion given by the law to the presiding judge is intended to better serve the justice between the parties.  The question of whether a jury notice should be struck is case-specific, and best answered by the judge hearing the motion and likely most aware of local conditions.

[31] Similarly, the motions judge is most able to answer whether striking the jury notice will better serve the justice of the case between litigants in practical terms.

Having regard to all of the circumstances, Emery J. recognized that it would be necessary in the interests of justice for leave to be granted. Emery J. considered the significant backlog of cases requiring jury trials in the coming months and the undue delay that would prejudice the plaintiff’s case, stating that it justified the departure from the defendant’s right to a jury trial.

Jury Conditionally Struck

Emery J. ordered that the action shall remain on the Brampton trial list for the January 2022 sittings. But, if trials by jury are not provided for January 2022, the jury notice is struck, and the trial shall proceed before a judge alone. However, if the matter is not reached during the January 2022 sittings – whether by jury or judge-alone – it shall be set for a trial on the next earliest sittings by jury. If no jury trials are provided at that time, the jury notice is struck, and the trial is to proceed before a judge alone.

Why This Matters

Recent case law supports the view that the pandemic qualifies as a substantial and unexpected change in circumstances in the context of granting leave — this is especially significant for actions that were set down for trial prior to March 2020. As noted by Emery J., the trial list for May 2022 is currently closed in Brampton, and the earliest the parties in this action could expect a jury trial would be January 2023. The recent decisions of the Court overwhelmingly point to the fact that the delays caused by the COVID-19 pandemic will continue to have a significant impact on the regular operation of the courts for the foreseeable future. However, conditionally striking the jury is an attempt to balance the interests of both plaintiffs and defendants by utilizing a modified wait-and-see approach. Given the court’s willingness to favour conditionally striking the jury over an absolute striking, counsel will have to prepare for trial without knowing whether the action will be heard by a jury or by judge-alone.

Nemchin v. Green, 2021 ONCA 238

Written By: Dale Orlando and Emma Pedota, Summer Student

injured in an auto accident: Nemchin v. Green, 2021 ONCA 238

Background:

People that are innocently injured in an auto accident have two avenues available to them to pursue compensation.  Traditionally, people that wish to retain us want us to sue the person that caused their injuries for, amongst other things, their cost of medical care and lost income.  However, most people do not initially realize that they can make a claim for statutory accident benefits (commonly called no-fault benefits).  These benefits are immediately available to the injured person and, in the case of someone who has suffered a catastrophic injury, provide a reserve fund of up to one million dollars for incurred medical, rehabilitation, and attendant care expenses.  Additionally, a person may also claim an income replacement benefit from their no-fault insurer or through their private long-term disability insurer.

The vast majority of personal injury cases are resolved by way of a settlement.  In the case of catastrophic injury, typically the no-fault insurer/LTD insurer and the insurer for the auto defendant in the lawsuit will each contribute towards the settlement as there is an overlap between the heads of damage in a lawsuit and a person’s no-fault/LTD entitlements.  For example, the defendant auto insurer in the lawsuit will indicate that they should not be solely responsible for compensating for the expected future cost of care if the injured person has the entitlement to one million dollars in no-fault coverage for the same cost of care items.  Likewise, if a person is receiving long-term disability payments, the defendant’s insurance company will not agree to pay for 100% of the injured party’s future loss of income.

In the small percentage of cases that are not settled and proceed to trial, a judge or jury will make awards for the various heads of damages including the future cost of medical care and future loss of income.  If a case goes to Judgment, what happens to the person’s no-fault entitlements for future care and ongoing payments for income replacement?  The Insurance Act contains provisions that specifically deal with this circumstance with the intention of preventing the injured person from receiving “double recovery”.  For example, the legislature strives to prevent an injured person from receiving an award from the Court for 100% of the gross future loss of income and then continue to receive income replacement as the injured person would be in a better position than if they hadn’t been injured.

In Nemchin v. Green, the Court of Appeal for Ontario recently considered the operation of the provisions in the Insurance Act meant to prevent double recovery and specifically dealt with the tax implications of assigning long term disability payments to an auto insurer that has compensated an innocently injured accident victim for their future loss of income.

FACTS: This appeal came about by way of a motor vehicle accident that left the appellant totally disabled. On account of her injuries, the appellant was awarded substantial damages against the respondent at trial.  In addition, she continued to receive long-term disability income continuation benefits from her employer’s group benefits insurer (Sun Life Assurance Company of Canada “Sun Life”). Both the appellant and her employer had contributed to the group benefits plan and as a result, Sun Life deducted and remitted income taxes from its payments to the appellant under the plan.

After trial, the respondent brought a motion under s. 267.8(12) of the Insurance Act to request the appellant to assign her rights to the Sun Life benefits over to the respondent’s insurer from the date of the judgment. The trial judge granted the respondent’s request and included an additional order that the appellant “top up” any amount paid from Sun Life to the respondent’s insurer to account for the deducted income taxes from its payments to the appellant. The appellant appealed this order on the grounds that it was contrary to the principles of natural justice and exceeded the trial judge’s jurisdiction as neither party requested the “top up” that she ordered. Additionally, the appellant argued that the trial judge erred in her interpretation of s. 267.8 of the Act.

ISSUES:

(1) Was the trial judge’s top up order procedurally unfair and contrary to natural justice?

(2) Did the trial judge err in her interpretation and application of s. 267.8 of the Insurance Act?

HOLDING: Appeal allowed.

REASONING:

  1. (1) Was the trial judge’s top up order procedurally unfair and contrary to natural justice?

Yes. Neither party requested the “top up” order, nor did the trial judge request submissions from the parties on the issue. The Court of Appeal held that the trial judge resolved the rights of the parties, imposed a burden on the appellant, and provided a remedy to the respondent, on an issue that was never pleaded.

  1. (2) Did the trial judge err in her interpretation and application of s. 267.8 of the Insurance Act?

Yes. The Court of Appeal found that the trial judge misunderstood ss. 267.8(9), (10), and (12) (a) (ii) of the Insurance Act and applied the trust and assignment provisions in a way that was contrary to the plain meaning of the legislative text and its purposes. Moreover, the trial judge erred by failing to account for Sun Life’s withholding and release of income tax as a statutory trust and its effect on the appellant’s rights under the plan. The legislative intent of s.267.8 is to fairly indemnify an injured plaintiff and prevent double recovery. The Court held that the trial judge’s order resulted in an unfair result for the appellant and undermined the principle of full compensation as it imposed a financial burden on the appellant that she would not have incurred if she did not have collateral benefits from Sun Life.

  1. The Trust Provisions under ss.267.9(9) and (10)

Subsections 267.8(9) and (10) of the Insurance Act impose a statutory trust on the payments that a plaintiff receives for the benefit of the defendant or their insurer. In the case at bar, the trust property was the net after-tax payments that the appellant received from Sun Life at the time of the judgment date. As a trustee, the appellant was obligated to hold in trust and pay the respondent’s insurer the payments from Sun Life, which were net of tax. The Court held that the consequence of the trial judge’s order was the deduction of more than the amount of the payments received and held in trust by the appellant post-trial and pre-assignment, which runs contrary to the provisions of ss. 267.8(9) and (10).

  1. The Assignment Provisions under s.267.8(12)(a)(ii)

Subsection 267.8(12)(a)(ii) of the Insurance Act allows a defendant to seek the assignment to its insurer of all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident under an income continuation benefit plan. The Court held that the trial judge failed to apply the assignment provisions under s.267.8(12)(a)(ii) in a way that was in line with the trust provisions.

The Court of Appeal clarified that the correct interpretation of subrogation is that the respondent’s insurer, as the assignee, acquires the entitlement to the rights of the appellant’s benefits subject to all the rights and obligations that exists between the appellant and Sun Life under the insurance plan. Thus, the assignment of the appellant’s rights under the plan means that the respondent’s insurer is entitled to a credit for the payments that the appellant receives, including the net of the taxes withheld by Sun Life. The respondent’s insurer is allowed to take necessary steps, at its own expense, to deal with the issue of the tax withholdings with Sun Life and the CRA. However, the respondent’s insurer may not be overcompensated by way of payments greater than those the appellant received.

  1. The trust and assignment provisions are complementary mechanisms

By having the assignment apply to the gross pre-tax amounts when the trust did not, the trial judge was in contravention of the Insurance Act, namely ss. 267.8. Furthermore, the word “payments” ought to be consistent in each of ss. 267.8(9), (10), and (12), however, “payments” referred to in ss. 267.8(9) and (10) are payments received and held in trust by the appellant. Thus, the word “payments” in s.267.8(12) must refer to the same payments but to be received by way of an assignment.

  1. Sun Life’s Obligations

The COA held that as long as Sun Life withholds and remits taxes pursuant to the statutory trust provisions of the Income Tax Act, the assigned rights of the respondent’s insurer are the net after-tax payments.

Further, the respondent’s submission that the trial judge’s order did not cause prejudice to the appellant because she is able to apply for a tax refund was rejected by the Court of Appeal. It was held that there is no certainty the CRA would agree that the appellant was eligible for a refund of the taxes remitted by Sun Life, and the appellant would likely be required to incur significant expenses to determine whether the CRA would accept this position.

Armstrong v Ward, 2021 SCC 1

Written By: Dale Orlando and Brandon Pedersen, Student-at-Law

Armstrong v Ward, 2021 SCC 1

Is the plaintiff in a medical malpractice case required to disprove every possible theory or potential non-negligent cause of injury?

The Supreme Court of Canada (“SCC”) considered this issue when it heard Armstrong v Ward, 2021 SCC 1 on January 18, 2021.

In February 2010, the plaintiff underwent a colectomy (colon removal procedure). The surgery was conducted by the defendant, a general surgeon. The surgery was conducted laparoscopically, meaning it was performed in the abdomen by making small incisions and inserting a laparoscope which lets the surgical team view the affected area from a distance using cameras and screens in the operating room. The surgery appeared to go smoothly – there were no signs that the plaintiff had been injured during or immediately following the procedure. However, the plaintiff began experiencing continual pain after the surgery. Weeks later, it was discovered that her left ureter was blocked, which caused damage to her left kidney, requiring kidney removal in a subsequent operation. The plaintiff alleged that the defendant had caused the scarring of the left ureter by improperly using a cauterizing device known as a LigaSure during the colectomy.

The trial judge was faced with two issues:

  1. Did Dr. Ward breach the standard of care expected of a general surgeon in conducting Ms. Armstrong’s colectomy?
  2. If the standard of care was breached, did it cause damage to Ms. Armstrong’s left ureter, leading to her left kidney’s subsequent removal?

The parties called two medical experts each, all agreeing that the LigaSure could cause damage through heat transfer. Further, the experts agreed that colectomies are a common procedure and ureteral injuries during such procedures are extremely rare. In the decision, Justice Mulligan concluded:

[113] In a colectomy procedure, identification and protection of the ureter is paramount. Using a LigaSure can cause damage by heat transmission if it touches the ureter or comes within one to two millimetres. I am satisfied that on the facts of this case, the plaintiff has established that Dr. Ward breached the standard of care.  Further, the breach caused damage to the ureter leading to a stricture of the ureter. This damage required the removal of Armstrong’s left kidney.

Ontario Court of Appeal

The defendant appealed the trial judge’s decision. A majority of the Ontario Court of Appeal set aside the trial judge’s finding of negligence, stating that the trial judge had erred in imposing a standard of perfection on the defendant, rather than one of reasonable care. The majority held that a trial judge cannot conclude that only negligence could have caused an injury without first ruling out potential non-negligent causes. The majority at the Court of Appeal effectively held that a plaintiff must prove that non-negligent causes did not cause or contribute to the damage sustained.

Supreme Court of Canada

The Court ruled on this case from the bench, allowing the appeal for the reasons of Justice van Rensburg – the dissent – at the Court of the Appeal. In giving weight to the expert evidence proffered at trial and the reasons of Justice Mulligan, Justice van Rensburg stated during a colectomy, it is important to identify and protect the ureter. If a surgeon took these steps to identify and protect the ureter during a laparoscopic colectomy, an injury to the ureter would simply not occur. With respect to the standard of care, Justice van Rensburg stated:

[164] … The trial judge’s conclusion that a reasonably competent surgeon would have stayed two millimetres away from the ureter is fully supported by the evidence. It is not a statement of result or a “goal”, but an essential step that was not taken in this case. ON the evidence, this was a breach of the standard of care.

Justice van Rensburg also commented on the burden of proof of a plaintiff in medical malpractice cases:

[134] The burden of proof was on Ms. Armstrong to establish that Dr. Ward failed to meet the standard of care of a reasonably competent surgeon when her ureter was injured in the course of the laparoscopic removal of her colon. A trial judge is not obliged to consider potential non-negligent causes when there is no evidentiary foundation to do so: see, for example, Hassen v. Anvari, 2003 CarswellOnt 3436 (C.A.), at para. 9, leave to appeal refused: 2004 CarswellOnt 1768 (S.C.C.).

[135] In this case, the trial judge considered and explicitly rejected the nonnegligent causes put forward by the appellant’s expert witnesses. As I have explained, there was no evidence in this trial to suggest that a reasonably competent surgeon, “trying” to stay at least two millimetres away, might accidentally have injured the ureter during this particular operation. The expert evidence detailed earlier was to the contrary. The trier of fact is required to determine the standard of care and its breach based on the evidence and not on speculation. The onus on a plaintiff in a medical malpractice case is not to disprove every possible theory that might be put forward by a defendant, let alone theories that are not raised at trial, but only on appeal.

This decision reinforces previous jurisprudence that the plaintiff in a medical negligence case is not required to disprove every possible theory that might be advanced by the defendant. While the plaintiff in a medical negligence case has the burden to prove all elements on a balance of probabilities, expecting a patient to specify how a doctor was negligent may create an imbalance since the patient usually cannot know exactly what happened during surgery.

The Jury’s Out: Doran v. Huls, 2021 ONSC 3291

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

The Jury's Out: Doran v. Huls, 2021 ONSC 3291| Mcleish Orlando

The defendant’s jury notice was struck in the recent Thunder Bay decision in Doran v. Huls, 2021 ONSC 3291.

Background

This action arose as a result of a motor vehicle collision that occurred in December 2013 in Thunder Bay. At the pre-trial conference in October 2019, the matter was placed on the civil jury sittings running list commencing January 2021 for a 10-12 day trial. Civil jury trials were suspended in March 2020 and continue to be suspended for the indefinite future.

Positions of the Parties

The plaintiffs submitted that it is unknown when civil jury trials will resume in Thunder Bay. The trial coordinator advised that no civil jury trials be scheduled in 2021. If the jury notice is not struck, it would be nine months (at the very earliest) before this matter is adjudicated. This delay will prejudice the plaintiffs in terms of the annually-increasing deductible under the Insurance Act, the continued erosion of the plaintiff’s loss of income claim, and the ongoing burden of the inability to pay for medical treatment.

The defendant argued that the potential prejudice caused by the delay does not outweigh the defendant’s right to a jury trial. The defendant argued that the increased efforts to vaccinate the population gives reason to be optimistic that the pandemic will be curbed by July 2021, and therefore this is an appropriate case to adopt the “wait and see” approach.

Analysis & Disposition

In reviewing the prevailing legal principles, the Court stated:

[12]      The right to have an action tried by a jury is a fundamental right that should not be interfered with without just cause or cogent reason. It is not absolute and must sometimes yield to practicality. The right is qualified as it is subject to the power of the court to determine that the action proceeds without a jury. (Louis v. Poitras, 2021 ONCA 49 at para. 17)

The onus is on a moving party to prove that the Jury Notice ought to be struck and the court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury. The courts must balance competing interests to determine whether in the interests of justice a jury notice ought to be struck or whether it is more appropriate to take a “wait and see” approach. (Cowles v. Balac, (2006) 2006 CanLii 34916 (ONCA), at para. 37)

In weighing the right to a jury trial and yielding to practicality, the Court found that the most compelling piece of evidence was the fact that the Regional Senior Justice for the Northwest Region has directed that no civil jury cases will be scheduled for 2021. The Court, therefore, found that there will be no civil jury trials in Thunder Bay in 2021, with no indication of when they would resume in the region. In ruling to strike the defendant’s jury notice, the Court stated:

[28]      Justice delayed is Justice denied. The delay in this matter to me is patently prejudicial if the jury notice is not struck.

[29]      As legitimate and workable as the “wait and see” approach may have been in the pre-COVID times, the defendant has provided no good reason why this matter must proceed with a jury other than “it is my right”.  In my view, the overarching right available to the plaintiffs and the defendant is one of a timely adjudication of their dispute by a neutral. One such neutral could be a jury panel of six fellow citizens of the parties. Another neutral could be a Superior Court judge. One is available in the foreseeable future and one is not.

Jury Striking Series: Evans v. Chiarello, 2021 ONSC 2677 | McLeish Orlando

The Jury’s Out: Evans v Chiarello, 2021 ONSC 2677

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Jury Striking Series: Evans v. Chiarello, 2021 ONSC 2677 | McLeish Orlando

The defendants’ jury notice was struck in the recent Sault Ste. Marie decision in Evans v. Chiarello, 2021 ONSC 2677.

Background

This action arose as a result of a motor vehicle collision that occurred in January 2015 in Sault Ste. Marie. The matter was set down for trial in June 2019.

There is a rolling trial list in Sault Ste. Marie, meaning jury sittings and trials are placed upon the list and given priority according to a number of factors including the age of the action.

The local trial coordinator was in attendance at the hearing of the jury-strike motion. The trial coordinator advised the court that:

  • All jury trials will be spoken to in the fall of 2021 to determine whether or not they can proceed;
  • The only civil jury sittings currently scheduled are in January 2022;
  • If scheduling, backlog, and other factors permit, an additional jury sitting could be booked in 2022;
  • The subject action currently sits 12th out of 24 matters in terms of priority, meaning there is no guarantee that the matter will be heard in January 2022; and
  • If the jury notice in the subject action were to be struck, a judge-alone trial could be set in the first half of 2022.

Positions of the Parties

The plaintiffs are approximately 70 years old. The plaintiffs submitted that the jury notice ought to be struck because a jury trial delay will be significant, their age requires prompt adjudication, and they will suffer prejudice by the delay due to the annually increasing deductible, the continued erosion of their loss of income claim, and the necessity to obtain updated expert reports.

On the other hand, the defendants argued that they have a right to a jury trial and that right should not be interfered with lightly. Further, the defendants prepared their case for a jury trial and a change would be prejudicial and there is no guarantee that the case would be heard expeditiously if it was to proceed without a jury.

Analysis

The Court reviewed the Rules of Civil Procedure and the principles from the relevant legal authority in Louis v. Poitras, 2021 ONCA 49:

[17] It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceeds without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.

[25] There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted.

Disposition

In granting the plaintiffs motion to strike the defendants’ jury notice, the Court held that the certainty in knowing that this action would be heard in the first half of 2022 was more favourable than waiting to see whether or not it could proceed by way of jury trial in January 2022 at best:

[15] … It is true that the right to a jury trial is important, but as noted in Louis, it ought not to override the larger concerns about “justice delayed is justice denied” where the delay in justice can cause real prejudice.  In this situation, an older litigant will quite possibly have his legal affairs put on hold for several years pending the availability of a jury trial.  Hryniak v. Mauldin 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87 speaks to the prejudice associated with delayed justice and, as a result, I need not repeat the damage that happens when litigants cannot get timely adjudication.  It goes without saying that this phenomenon is exacerbated when older litigants are involved.  Had the plaintiffs been younger, I may have considered this motion in a different light.

[16] Put another way, it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023 whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.

Jury Striking Series: Sauve v Steele, 2021 ONSC 1557 | McLeish Orlando Personal Injury Lawyers

The Jury’s Out: Sauve v Steele, 2021 ONSC 1557 – Jury Struck in Milton Action

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Jury Striking Series: Sauve v Steele, 2021 ONSC 1557 | McLeish Orlando Personal Injury Lawyers

Civil jury trials continue to be disrupted in Ontario as a result of the ongoing COVID-19 pandemic.

Background

This Milton action arose out of a January 2014 incident, in which the blade to the Defendants’ snow plow allegedly became entangled in overhanging hydro wires, tearing them from the hydro pole and falling into the path of the Plaintiff vehicle which proceeded to run into or over the wiring.

The Plaintiffs brought their claim in January 2016 and discoveries were completed by March 2017. Mediation was held in February 2019 and a pre-trial in August 2019. At the pre-trial, the action was placed on the March 2021 trial list in Milton. The Plaintiffs began preparing for trial – obtaining reports and readying their experts.

When the COVID-19 pandemic hit Ontario, Morawetz C.J. announced the suspension of regular court operations and civil jury selection and trials were suspended until September 2020. Jury trials continued to be suspended and most recently, the court suspended all jury trials until May 2021 at the earliest.

This action would therefore proceed in October 2021 during the next civil trial blitz in Milton, a delay of seven months from the originally scheduled start date.

Positions of the Parties

The Plaintiffs argued that a March 2021 judge-alone trial would be more practical than waiting until the Fall of 2021 in the hope that a jury trial may begin then or at some later undetermined date.

The Plaintiffs argued that the longer the delay, the more likely it will become that they will need to incur the added cost of updating their expert reports, and the more likely the loss of income claim will continue to erode.

The Defendants, on the contrary, asked the court to adopt a “wait and see” approach, specifically because, as the Defendants submitted, the Plaintiffs did not provide any evidence to show that their reports would have to be updated. Further, the income loss had not yet been proven and any projections based on income loss merely reflected the opinions of the Plaintiffs’ income loss expert.

Disposition

Given the age of the action and the uncertainty of when a civil trial may be heard was sufficient reasoning to strike the jury notice, Doi J. held that this was not an appropriate case to adopt the “wait and see” approach.

In reaching his decision to strike the jury notice and order a judge-alone trial, Doi J. stated that the prejudice to the Plaintiffs from the indeterminate delay to obtain a jury trial outweighed the right of the Defendants to have the action tried by a jury. Doi J. noted that a party’s right to a jury trial is not absolute and may give way to the overriding interests of the administration of justice and issues of practicality.

Gagnier v Burns, 2021 ONSC 1971 – Jury Strike | McLeish Orlando Personal Injury Lawyers Toronto

The Jury’s Out: Gagnier v Burns, 2021 ONSC 1971 – Jury Strike

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Gagnier v Burns, 2021 ONSC 1971 – Jury Strike | McLeish Orlando Personal Injury Lawyers Toronto

In the most recent decision of the jury-striking era, the plaintiff in Gagnier v Burns, 2021 ONSC 1971 was successful in striking the defendant’s jury notice in the Southwest Region.

Background

The action arose as a result of a 2013 motor vehicle collision in which the plaintiff was riding his motorcycle with his wife as a passenger. Both husband and wife have been unable to return to their employment since the collision.

The action was set down for trial in November 2017 and was set to be tried by a jury over eight weeks commencing February 2021.

The original December 2020 motion date was adjourned to allow for a more accurate assessment regarding the effects and progress of the COVID-19 pandemic.

On January 13, 2021, Chief Justice Morawetz extended the suspension of jury trials until May 3, 2021, and the trial of this action was therefore adjourned from February 2021 and would be assigned for a jury trial date in 2022.

Positions of the Parties

The plaintiffs argued that if the jury notice was struck, it would allow the trial to commence at some point in the Fall of 2021. The Fall of 2021 would be eight years since the events giving rise to the litigation took place. Trial happening in the Fall of 2021 would help limit the erosion of the loss of income claims and the plaintiffs would likely not need to update experts’ reports which they otherwise would have to do if the trial was to be adjourned to 2022.

The defendant submitted that the court adopts the “wait and see” approach. In doing so, the defendant argued that the right to trial by jury in a civil case is a substantive right that should not be interfered with:

[19] The historic test is succinctly captured at para. 37 of Cowles:

[37] A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merits the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Grahamsupra.

The defendant further submitted that the court applies the proportionality principle in making a decision. The defendant highlighted the seminal decision of Hryniak v Mauldin, 2014 SCC 7, in which Karakatsanis J. noted:

[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely, and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[29] There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

The defendant suggested that given the claim here was significant ($6,000,000), the defendant should be entitled to a jury. Further, the defendant submitted that there is no certainty a non-jury trial would finish sooner than one tried with a jury, especially given the potential for a segmented trial and a reserved decision.

Disposition

Regional Senior Justice Thomas referenced the Court of Appeal’s decision in Louis v Poitras, 2021 ONCA 49, with particular emphasis on the local conditions of the Superior Court in Windsor. At the time, there were 11 criminal jury matters awaiting trials that were estimated to take 30 weeks, and it was, therefore, reasonable to assume that civil jury trials would be quite delayed. As noted in Louis v Poitras, delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking a jury notice.

In deciding to strike the jury notice, Regional Senior Justice Thomas concluded that the plaintiffs had pointed to other examples of their actual prejudice occasioned by delays in the trial. Taken together, striking the jury notice was the most effective resolution of this litigation in the most just manner possible.

Barikara v Kyei, 2021 ONSC 1636 | McLeish Orlando Personal Injury Lawyers Toronto

The Jury’s Out: Barikara v Kyei, 2021 ONSC 1636

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Barikara v Kyei, 2021 ONSC 1636 | McLeish Orlando Personal Injury Lawyers Toronto

In another chapter in the jury-striking era, the plaintiff in Barikara v Kyei, 2021 ONSC 1636 was successful in conditionally striking the defendant’s jury notice in the Central East Region.

Background

This Newmarket action arose out of a November 2016 collision in which the 65-year old plaintiff, who was a passenger, was catastrophically injured. Once a fully functioning woman, the plaintiff’s injuries have rendered her catastrophically impaired and virtually non-communicative. She requires 24-care and a host of support services. She has lived in hospitals, convalescent centres, and long-term facilities since the collision.

However, the plaintiff still owns her house and wants to move back home. The cost of attendant care services at home exceeds the maximum amount payable in attendant care benefits. The plaintiff, therefore, desires a trial as soon as possible in order to recover the funds to allow her to return home with the care she requires.

Positions of the Parties

The plaintiff brought a motion to strike the jury notice. A trial record was filed in April 2019 and private mediation and pre-trial have already taken place. The plaintiff sought to have the action placed on the judge-only Central East Region’s Civil Trial Sittings commencing May 17, 2021.

The defendant took the position that the right to trial by jury should not be dispensed with wholesale and that the “wait and see approach” should be taken.

Disposition

In reaching her decision, Casullo J. referenced two recent jury-strike cases: Solanski v Reilly, 2020 ONSC 8031, where the elderly plaintiff was in ill-health, and Coban v Declare, 2020 ONSC 7537, where the plaintiff had immediate attendant care needs. In both decisions, the circumstances justified discharging the jury.

In having regard to the particular circumstances of the case, Casullo J. held that justice will be better served by discharging the jury – however, the discharge need not be permanent. Casullo J. stated:

[38] If, when the matter is called, there are no civil jury trials running, the matter will be heard by a judge alone.  If, however, civil jury trials are being conducted when the case is called to trial, the matter proceeds before a jury.  This is a flexible, region-specific approach to maintaining each party’s substantive right to a jury trial, where possible.

In conditionally striking the jury notices, Casullo J. noted that justice delayed may be justice denied and that immediacy is warranted given the particular facts of the case.

Solanki v. Reilly, 2021 ONSC 1326 | McLeish Orlando Injury Lawyers

Solanki v. Reilly, 2021 ONSC 1326

Written By: Michael Warfe and Endrita Isaj, Student-at-Law

Solanki v. Reilly, 2021 ONSC 1326 | McLeish Orlando Personal Injury Lawyers

In a mid-trial ruling, Tranquilli J. held that the plaintiffs may pursue their claim for housekeeping and attendant care losses as a result of injuries sustained in a motor vehicle collision in December of 2012.

The parties took differing positions on the matter after the testimony of the plaintiff participant expert witness, an occupational therapist (OT), at trial. The defendant objected to the OT’s opinion evidence, claiming that the plaintiff had eliminated these past care claims at her examination for discovery in 2015, and would face prejudice if the plaintiff was allowed to pursue these claims at trial. The plaintiff submitted that the defendant had notice of the claims for housekeeping and attendant care losses.

At an examination for discovery on July 10, 2015, previous defence counsel had asked plaintiff counsel, “And counsel, will you confirm for the record that there is no economic component being advanced for this plaintiff?” to which plaintiff counsel answered, “That’s correct, there is no, none being advanced.”[1]

The plaintiff maintained that she did not eliminate her past care claim with this answer. Defence counsel argued that the questions at the plaintiff’s examination for discovery did not put the defendant on notice of a pecuniary loss being advanced due to the express acknowledgement that no economic claims were being advanced.

Justice Tranquilli held that the definition of “economic loss” lacked the necessary precision in narrowing the nature and scope of the damages being claimed. As such, there was no duty on the plaintiff to correct her answer on discovery.

Justice Tranquilli held the defendant should have clarified their understanding of the issue. This was in light of the fact that the defendant had the occupational therapist’s report for some time and knew the occupational therapist was going to be called as a participant witness at trial. Moreover, Tranquilli J. found that the broad nature of the term “economic loss” and the various bases on which damages can be claimed meant that the defendant ought to have clarified the issue and their understanding of economic loss.[2] The defendant had also been put on notice of the claims for housekeeping and attendant care in a pre-trial that had taken place in July 2018.

Consequently, Tranquilli J. was satisfied there would be no prejudice to the defendant and as such, the plaintiffs were granted leave to lead evidence in support of past care claims related to housekeeping and attendant care claims.

 

 

[1] Solanki v. Reilly, 2021 ONSC 1326 at para 8.

[2] Ibid at para 11.

Another Jury Struck - Johnson v Brielmayer | McLeish Orlando Personal Injury Lawyers

The Jury’s Out: Another Jury Struck – Johnson v. Brielmayer, 2021 ONSC 1254

Written By: Lindsay Charles and Endrita Isaj, Student-at-Law

Another Jury Struck - Johnson v Brielmayer | McLeish Orlando Personal Injury Lawyers

In the latest string of decisions from the court to strike a jury notice, Sanfilippo J. granted the Plaintiff’s motion to strike the Defendant’s jury notice so that the action could continue on its scheduled date of February 22, 2021, for a 20 day trial without a jury.

The action arose out of a motor vehicle collision that happened about 10 years ago. The action was scheduled to be heard as a 15-day trial in the Toronto October 2020 Sittings. It was rescheduled to February 22, 2021, for a 20-day trial.

After the October 2020 Sittings, the Toronto Region extended the suspension of civil jury trials to respond to the state of the pandemic in the City. Civil jury trials have been suspended until May 3, 2021, at their earliest, which meant that the parties could not proceed with their jury trial on February 22, 2021.

The Plaintiff brought a motion to strike the Defendant’s jury notice so that they could proceed to a virtual, Judge-alone trial on February 22, 2021. The Court granted the motion.

The Parties’ Positions

In setting out the principles required to strike the Defendant’s jury notice, the Plaintiff advanced the position that his extensive trial preparation would be wasted if the trial was not held as it was scheduled. The Plaintiff submitted that he moved to strike the jury notice expeditiously once he learned of the suspension of civil jury trials and that there was no certainty when the state of the pandemic would allow for civil jury trials in Toronto Region. Besides wasted costs, the Plaintiff contended that he would suffer prejudice through delay in the action’s adjudication, which included the possibility of the loss of witnesses and the loss through statutory deductibles for recovery in the claim.

The Defendant advanced the position that the Plaintiff was to blame for the delay and contended that the Court takes a “wait and see” approach to see if the pandemic would allow jury trials to proceed. The Court held that the Defendant’s submission, distilled to its basics, was that since there had been a significant delay in advancing the action to trial, further delay would be acceptable. The Court did not accept this submission, writing that while a past delay in advancing the action to adjudication cannot be condoned, it “does not diminish the objective that any history of delay is not further compounded.”[1]

Analysis of the Court

The Court found it had an insufficient basis to assess the likelihood that the action would be reached in the June 2021 sittings. Even if jury cases were being conducted at that point in time, there existed the possibility that if the action was not called to trial in the June 2021 sittings, the action could further be delayed to late 2021 or early 2022.

The Court was satisfied by the Plaintiff’s submissions that it would suffer a detriment by further delay in the action proceeding to trial, namely through the additional costs of trial preparation and from the operations of the Insurance Act applicable to motor vehicle claims, which means that the amount of the Plaintiff’s claim subject to deductible reduces each year that the action is delayed.[2] The Defendant made oral submissions that he would suffer a detriment because he had prepared this action as a jury trial and would now have to change his preparation for a non-jury trial, which did not sway the Court. The Court held that the Defendant did not advance any evidence of detriment that he would sustain if the claim advanced against him was decided by a judge, rather than a Jury.

The Court sided with the Plaintiff, finding that justice to the parties was better served by discharging the jury and ordering the trial to proceed on its scheduled date of February 22, 2021. Sanfilippo J. reiterated the principles from Louis v Poitras that judges must find creative ways to ensure that parties get their day in court in a timely manner.

[1] Johnson v Brielmayer, 2021 ONSC 1254 at para 43.

[2] Ibid at para 50.

Lump Sum Settlements from Long-Term Disability Benefits Insurers | McLeish Orlando Personal Injury Lawyers

The State of the Law in Lump Sum Settlements from Long Term Disability Benefits Insurers

Written By: Dale Orlando and Endrita Isaj, Student-at-Law

Lump Sum Settlements from Long-Term Disability Benefits Insurers | McLeish Orlando Personal Injury Lawyers

We are often consulted by people who have either made a claim for long-term disability (LTD) benefits and had their claim denied or who applied for and received LTD benefits for a period of time but have been told by their insurer that they no longer meet the test for entitlement to LTD benefits.

Disputing an insurer’s determination that you do not qualify for LTD benefits is typically accomplished by suing the insurer.  Most people hope to have their LTD dispute resolved by way of full and final payment of past, present, and future payments under the policy.  They want the insurer out of their life once and for all!  Unfortunately, this outcome has traditionally been outside of the ability of the Court to award.   It is for this reason that the vast majority of claims against LTD insurers are settled by way of a lump sum settlement of all past and future entitlement to LTD benefits as opposed to receiving a Judgment at the end of a trial.  Insurers know that claimants prefer a lump sum award as opposed to receiving payments in dribs and drabs over years and, as a result, demand a significant discount off of the present value of the future stream of payments in order to be enticed to make a lump sum payment.  They are in a position to demand a significant discount since, if an agreement can’t be reached for an appropriate lump sum amount, the insurer has two options.  They can choose to simply pay what they should have paid under the policy and reinstate the claimant or they can proceed to trial where their worst-case scenario is a declaration of disability coupled with an Order to pay arrears and interest.  Once the claimant has been voluntarily reinstated or has been declared disabled by a Court, they are entitled to continue to receive LTD payments from the insurer for such period of time that the insurer is satisfied that they continue to meet the definition for disability.  The insurer has an obligation to continue to adjust the file and may well determine at some point in the near future that the claimant no longer meets the test for disability and cuts them off once again.

To date, there is only one case in which a Court ordered a payment of future entitlement to LTD benefits.  In Brito v Canac Kitchens, [2011] ONSC 1011, after 24 years of employment with Canac Kitchens, the plaintiff, Mr. Luis Romero Olguin was dismissed without cause due to restructuring. On dismissal, Mr. Olguin received the statutory minimum of 8 weeks’ notice and 8 weeks of benefits coverage. Mr. Olguin secured alternate employment, but was paid less and was not entitled to long-term disability benefits. Mr. Olguin was diagnosed with cancer 16 months after his dismissal from Canac Kitchens. He underwent several surgeries for his cancer and was deemed disabled on November 6, 2004. He sued Canac Kitchens for wrongful dismissal. The court held that reasonable notice was 22 months and that Mr. Olguin would have been entitled to his benefits during this 22 month notice period. The court concluded that Canac Kitchens would have to pay the full value of the long-term disability benefits that Mr. Olguin would have received to the age of 65, which was valued at close to $200,000, in a lump sum payment. The case went to the Court of Appeal, which upheld the decision of the trial judge to award a lump sum amount for future LTD benefits but set aside the trial judge’s $15,000 award for punitive damages.

Should you have any questions about your LTD claim, contact the experienced lawyers at McLeish Orlando LLP who have the trusted expertise and knowledge to get you the disability benefits you are entitled to.

The Latest Update on Louis v Poitras – Striking of jury notice due to delay in civil jury trial as a result of the COVID-19 pandemic

Written By: Salvatore Shaw and Endrita Isaj, Student-at-Law

The Latest Update on Louis v Poitras – Striking of jury notice due to delay in civil jury trial as a result of the COVID-19 pandemic

In the latest from Louis v Poitras, which our blog has closely followed, the Ontario Court of Appeal recently released its decision on January 25, 2021 (see 2021 ONCA 49).   In the decision, the Court of Appeal has restored the motion judge’s order striking the jury notices due to delays arising from the COVID-19 pandemic.

Facts of the Case

This case arose out of a motor vehicle accident that took place in Ottawa on May 9, 2013. Jury notices were filed by the defendants in both the tort and accident benefits actions. The case was ready to proceed to trial on April 20, 2020. However, the trials of both actions did not proceed due to the COVID-19 pandemic.  On July 2020, the plaintiff moved for an order striking the jury notices in both actions due to the delay, which the motion judge granted. The defendant insurer appealed the motion judge’s order to the Divisional Court. The Divisional Court allowed the appeal and reinstated the jury notices in both actions on the basis that the motion judge’s decision to strike the jury notices was “arbitrary.” The Divisional Court concluded the decision was arbitrary because it was attributed solely to the presence of delay and lacked sufficient evidence of actual prejudice.

The Court of Appeal

In its recent decision, the Court of Appeal has found that the decision of the Divisional Court was at odds with the current reality of the courts. The Court of Appeal added that it is “only in rare situations that an appellate court should overrule discretionary case management decisions.”[1] This factored in the Court’s decision to restore the motion judge’s order.

The Court of Appeal disagreed with the Divisional Court’s finding that there needed to be proof of additional prejudice, beyond delay, to justify striking a jury notice. The Court of Appeal agreed with the findings of the lower court that the simple reason of delay in obtaining a date for a civil jury trial can constitute prejudice and therefore justify the striking of a jury notice.

The Court of Appeal found that when looking at the broader interests of justice in considering the request to strike the jury notice, the Divisional Court had ignored the current realities of the situation affecting the courts and had discounted the importance of the administration of justice in its decision. Proper consideration of the administration of justice would have recognized that local judges are best positioned to understand the availability of resources and determine the appropriate approach for each case.[2]

The Court of Appeal held that the motion judge had in fact done a correct analysis of the situation facing civil jury trials, by turning his mind to the local conditions that existed in Ottawa and the reality that it was not known when jury trials would resume.

The Court of Appeal indicated that judges in a similar position are acutely aware of the local conditions affecting the courts and that they should exercise their discretion to ensure the timely delivery of justice. The Court further stated that only in rare situations should an appellate court overrule discretionary case management decisions.

Having found that the Divisional Court had erred in its analysis, the Court of Appeal restored the order of the motion judge striking the jury notices.

[1] Louis v Poitras, 2021 ONCA 49 at para 4.

[2] Ibid at para 26.