



COURT OF APPEAL FOR ONTARIO

CITATION: Louis v. Poitras, 2021 ONCA 49

DATE: 20210125

DOCKET: C68953

Watt,
    Lauwers and Hourigan JJ.A.

BETWEEN

Firma Louis and Marcdere Louis

Plaintiffs

(Moving
    Parties/Appellants)

and

Jacques
    Poitras and
Security National Insurance Company

Defendants

(
Responding Party/Respondent
)

AND BETWEEN

Firma Louis

Plaintiff

(Moving
    Party/Appellant)

and

TD Insurance
    Meloche Monnex and Security National Insurance Company

Defendants

(Responding
    Parties/Respondents)

Joseph Y. Obagi and
    Elizabeth A. Quigley, for the moving parties/appellants

Barry Marta, for
    the responding party/respondent Security National Insurance Company

Joseph Griffiths,
    for the responding parties/respondents TD Insurance Meloche Monnex and Security
    National Insurance Company

Heard: January 20, 2021, by video conference

On appeal from the order of the
    Divisional Court (Justices Thomas R. Lederer, Darla A. Wilson, and Jamie K.
    Trimble), dated November 16, 2020, with reasons reported at 2020 ONSC 6907, granting
    the appeal of the order of Justice Robert N. Beaudoin of the Superior Court of
    Justice, dated September 9, 2020, with reasons reported at 2020 ONSC 5301, 152
    O.R. (3d) 760.

Hourigan J.A.:

I.        Introduction

[1]

The civil justice system in Ontario faces an
    unprecedented crisis. Among other challenges, the COVID-19 pandemic has
    significantly reduced the availability of courtrooms. Trial courts have
    necessarily had to prioritize criminal and family law cases to the detriment of
    civil cases' timely resolution. Consequently, civil justice reform has shot to
    the forefront as a public policy imperative. Procedural reforms have been implemented
    to respond to the challenge, including increasing the use of electronic filing
    and electronic hearings. In addition, more fundamental changes in the operation
    of the civil justice system are being contemplated, such as the potential
    elimination of civil jury trials. Whether these reforms will come to pass
    remains to be seen. In the meantime, our courts are charged with the management
    of a civil justice system that is being overwhelmed.

[2]

Judges of the Superior Court work tirelessly to
    keep the civil justice system afloat. This sometimes means that they must find
    creative ways to ensure that parties get their day in court in a timely manner.
    In so doing, they respond to the Supreme Court's injunction in
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required
    to preserve our civil justice system. In the cases at bar, the motion judge
    made such a creative order. He struck the jury notices and ordered that the
    cases proceed in three-week tranches. On appeal, the Divisional Court held that
    while the motion judge had the discretion to make that order, it was made on an
    insufficient evidentiary basis and was therefore arbitrary. It set aside the
    motion judges order and restored the jury notices.

[3]

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. It is a necessary corollary to that proposition that intermediate
    courts of appeal should not lightly second guess those discretionary decisions.
    In the cases at bar, the Divisional Court did just that under the guise of a
    finding regarding the evidentiary record. That finding is unsupportable. The
    motion judge had an abundance of evidence to justify his order.

[4]

More fundamentally, the Divisional Courts
    approach is at odds with the current reality faced by our courts. Superior
    Court judges are acutely aware of local conditions, and it is counterproductive
    for intermediate appeal courts to interfere unnecessarily. It is only in rare
    situations that an appellate court should overrule discretionary case
    management decisions.  This was not such a rare case. On the contrary, this was
    a situation where the motion judges creativity should have been the subject of
    approbation, not condemnation. Therefore, for the reasons I will more fully
    detail below, I would grant leave to appeal, set aside the Divisional Courts
    order, allow the appeal and restore the motion judges order.

II.       Facts

[5]

The appellants were involved in a motor vehicle
    collision in Ottawa on May 9, 2013. Two actions resulted: a tort action and an
    accident benefits action. Jury notices were filed by the defendants in each proceeding,
    which were ordered tried together in a 10-week jury trial commencing April 20,
    2020.

[6]

COVID-19 then intervened, and the trial date was
    lost. All parties were ready for trial.  But for the pandemic, the trial of
    both actions would have proceeded in April 2020.

[7]

In July 2020, the plaintiff moved for an order
    striking the jury notices in both actions, which the motion judge granted.
    Civil jury trials were not being scheduled at that time in Ottawa, but
    judge-alone trials of three weeks or less were available within the following
    six months. Consequently, the motion judge ordered the trials to proceed in
    three-week tranches, beginning in February 2021.

[8]

The defendant insurers appealed the motion
    judges order to the Divisional Court. That court allowed the appeal, reinstating
    the jury notices in both actions. The Divisional Court concluded that the
    motion judges decision to strike the jury notices was arbitrary because it was
    attributed solely to the presence of delay but lacked sufficient evidence of actual
    prejudice to the parties.

[9]

The Divisional Court summarized its reasoning in
    overturning the motion judge at para. 2 of its reasons:

The decision of the motion judge to strike the
    jury notice was attributed, by him, solely to the presence of delay without any
    reliance on 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. There was nothing to which he referred that
    considered the particular circumstances. In the absence of such information,
    the decision was arbitrary. The recognition of the presence of delay, without
    more, is not enough.

[10]

The plaintiffs moved to stay the Divisional
    Courts order pending appeal to this court. Brown J.A. granted the stay, finding
    strong grounds to suggest the Divisional Court misapprehended relevant facts,
    particularly regarding uncertainty in Ottawa as to when or how a jury trial
    might proceed in light of the pandemic. Further, Brown J.A. noted that pandemic-related
    delay affecting civil jury trial scheduling has been raised in several cases
    and may require consideration by this court. Upon granting the stay, Brown J.A.
    ordered that this motion for leave to appeal be expedited and heard together
    with the appeal if the panel entertains submissions on the appeal, as we did.

III.      Analysis

(a)

Leave to Appeal

[11]

The test on a motion for leave to appeal in
    these circumstances is found in
Re Sault Dock Co. Ltd. and City of Sault
    Ste. Marie,
[1973] 2 O.R. 479 (C.A.) at pp. 480-81. These appeals fall
    into the category of special circumstances:

The Court will of course consider also cases
    where special circumstances would make the matter sought to be brought before
    the Court
a matter of public importance or would appear
    to require that in the interest of justice leave should be granted 
such
    as the introduction of new evidence,
obvious
    misapprehension of the Divisional Court of the relevant facts
or a clear
    departure from the established principles of law resulting in a miscarriage of
    justice.

[12]

The plaintiffs submit that there are two grounds
    upon which leave to appeal ought to be granted: (i) the Divisional Court decision
    discloses an obvious misapprehension of the relevant facts considered by the motion
    judge in granting the order to strike the jury notices; and (ii) there is a
    serious question raised by this appeal that engages a matter of public
    importance that this court should consider in the interests of justice.

[13]

I am satisfied that the Divisional Courts analysis
    shows an obvious misapprehension of the relevant facts. The details of these
    patent errors will be considered in the analysis of the merits of the proposed
    appeal. For the purposes of the motion for leave to appeal, I note that the
    Divisional Court made an obvious error in concluding that the motion judge made
    his decision without regard to evidence of the local conditions as they
    impacted these actions. As I will explain, the motion judge was explicit
    regarding the evidence he was relying on in making that order, evidence that went
    to the specifics of the situation then extant regarding jury trials in Ottawa
    and its impact on these proceedings.

[14]

I also have no hesitation in finding that this appeal
    raises a matter of public importance regarding the administration of civil
    justice. Guidance is necessary regarding civil case management during the
    current pandemic crisis. When I say guidance, I do not mean that this court
    should provide advice to trial courts on how to manage their civil lists. I
    have every confidence that they know how to do so in the context of local
    conditions. What I mean is that guidance is necessary for intermediate courts
    of appeal to remind them of the minimal role they play in reviewing discretionary
    case management decisions.

[15]

Given the foregoing, I would grant leave to
    appeal. Simply put, the decision below is flawed on its face, and the approach
    taken by the Divisional Court must be discouraged if courts are going to properly
    manage their civil lists during the pandemic and beyond.

(b)

Merits of the Appeal

[16]

The Divisional Court's reasons and the reasons
    of the motion judge are like ships passing in the night. The Divisional Court
    makes a series of findings in reaching its conclusion that the decision of the
    motion judge is arbitrary. In so doing, it purports to undertake a detailed
    analysis of the motion judge's reasons to demonstrate that there was an
    insufficient evidentiary foundation for the decision to strike the jury notices.
    That analysis does not withstand scrutiny.

[17]

It is well settled in the jurisprudence that the
    substantive right to a civil jury trial is qualified because a partys
    entitlement to a jury trial is subject to the power of the court to order that
    the action proceed 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 a broad discretion to determine
    the mode of trial. This court described the role of the court this way in
Cowles
    v. Balac
, (2006) 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal
    refused, [2006] S.C.C.A. No. 496:

While that test confers a rather broad
    discretion on a court confronted with such a motion, it is nonetheless a
    sensible test. After all, the object of a civil trial is to provide justice
    between the parties, nothing more. It makes sense that neither party should
    have an unfettered right to determine the mode of trial. Rather, the court,
    which plays the role of impartial arbiter, should, when a disagreement arises,
    have the power to determine whether justice to the parties will be better
    served by trying a case with or without a jury.

The application of this test should not
    diminish the important role that juries play in the administration of civil
    justice. Experience shows that juries are able to deal with a wide variety of
    cases and to render fair and just results. The test, however, recognizes that
    the paramount objective of the civil justice system is to provide the means by
    which a dispute between parties can be resolved in the most just manner
    possible.

[18]

It is equally well settled that an appellate
    court reviewing a decision to strike a jury notice has a very limited scope of
    review. It may only interfere where the decision to strike was exercised arbitrarily
    or capriciously or was based upon a wrong or inapplicable principle of law:
Kostopoulos
    v. Jesshope
(1985), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, leave to appeal
    refused, [1985] S.C.C.A. No. 93.

[19]

Given the Divisional Courts reasoning in this
    case, the admonition from this court in
Cowles
regarding deference
    bears repeating. The court warned that an appeal court should not merely pay
    lip service to the concept of deference and then proceed to substitute its own
    view as to what the proper result should be for that of the lower court.
    Interference is only justified when the lower court is shown to have committed
    the type of error referred to in
Kostopoulos
:
Cowles
, at
    para. 42.

[20]

With that comment in mind, I turn to a review of
    the Divisional Courts reasons. There is considerable overlap in the Divisional
    Courts analysis, but certain key findings emerge from the courts reasons. In
    my view, all of these findings are erroneous and reflect a fundamental
    misunderstanding of the role of appellate courts in considering appeals from orders
    to strike jury notices.

[21]

First, the court found that delay alone is not
    enough to strike a 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. Thus, the court concluded, at para. 24, that in these
    cases, there was no just cause or cogent reason to interfere with the statutory
    right of the defendants to seek trial by jury.  I disagree.

[22]

The accident in this case occurred over seven
    years ago. There was no indication when a civil jury trial might be held in
    Ottawa at the time of the motion. Accordingly, the motion judge found that the
    real and substantial prejudice arises simply by reason of delay: at para. 46.
    I agree with the statement of Brown J.A. in his decision on the stay motion
    that this was a legally permissible finding and that delay in obtaining a date
    for a civil jury trial can, by itself, constitute prejudice and justify striking
    out a jury notice. As Brown J.A. notes, the whole
raison dêtre
of
    the civil justice system, as captured in r. 1.04(1), is that courts will work
    to provide the most expeditiousdetermination of every civil proceeding on its
    merits:
Louis v. Poitras
, 2020 ONCA 815, at para. 33.

[23]

This case neatly captures the competing
    approaches to the crisis faced by the civil justice system. The motion judge
    approached this case practically, cognizant of his responsibility to the
    parties and the system to move cases forward and offer timely service. By
    contrast, the Divisional Court took the wrong approach to the new reality of
    the civil justice system. Implicit in its reasoning is that delay is to be
    expected and tolerated; it is the ordinary course. That is precisely the type
    of complacency that has led to the civil justice systems systemic delay and was
    subject to criticism by the Supreme Court of Canada in
Hryniak
.

[24]

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. The court correctly recognized,
    at paras. 26-30, that the right to a jury trial is subject to the overriding
    interests of the administration of justice and issues of practicality: see
Girao
    v. Cunningham
, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171;
MacLeod
    v. Canadian Road Management Company,
2018 ONSC 2186, 79 C.C.L.I. (5th)
    314, at para. 29;
Belton v. Spencer
, 2020 ONSC 5327 at paras. 13-20, stay
    denied, 2020 ONCA 623.

[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.

[26]

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. Judicial responses to the pandemic and court resources
    availability vary across the province:
Passero v. Doornkempt
, 2020
    ONSC 6384, at para. 49. That does not mean that different approaches reflect a
    conflict in the case law. Rather, they reflect the due exercise of judicial
    discretion in differing local circumstances:
Belton

v. Spencer
,
    2020 ONCA 623, at para. 75.  An appeal court must respect the reasonable
    exercise of this discretion. It impedes the proper administration of justice by
    second-guessing the local courts discretionary case management decisions under
    the pretext of an arbitrariness analysis.

[27]

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. It concluded
    that while the courts in those cases were justified in striking a jury notice, there
    was an insufficient evidentiary basis here. The Divisional Court concluded, at
    para. 55, that the [motion] judge relied only on the fact of delay without any
    evidence applicable to the specific situation. It also found at para. 66:

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.

[28]

The Divisional Court went on to distinguish
    other decisions regarding striking jury notices like
Belton, MacDougall v.
    Sisley,
2020 ONSC 6632

and
Higashi v. Chiarot
, 2020 ONSC
    5523

on the basis that in those cases, the motion judges had evidence
    regarding the particular circumstances of the local civil list such as
    directives issued by the court and information provided to the court by the
    Regional Senior Judge.

[29]

The Divisional Courts analysis of
Higashi
,
    another Ottawa case, is particularly illuminating. There the motion judge,
    Roger J., 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. He took judicial notice that he did not know when a civil jury trial
    could proceed and that it was doubtful that criminal courtrooms would be
    available for civil jury trials.

[30]

The Divisional Court accepted that the court in
Higashi
had a sufficient evidentiary foundation to make an order striking the jury
    notice. It contrasted the evidence available in
Higashi
with these
    cases and concluded that the motion judges decision was so lacking an
    evidentiary basis that it was arbitrary.  With respect, this analysis is deeply
    flawed and sets the bar regarding what constitutes an arbitrary decision at a
    dangerously low level, a level that can be easily utilized to strip a motion
    judge of his or her discretion.

[31]

I start by noting that in his reasons, the
    motion judge referenced the decision in
Higashi
,
which
    had been released
eight
days earlier. This reference
    is ignored by the Divisional Court. Left unanswered by its reasons is why the
    motion judge could not rely on the information from Roger J. regarding the
    status of the availability of civil jury trials in Ottawa. Is it suggested that
    this information was reliable in
Higashi
but unreliable in these cases?
    Was the motion judge obliged to undertake his own investigation?  How exactly
    can reliance on very recent information in a judicial colleagues decision
    qualify as an arbitrary exercise of discretion?

[32]

The flaws in the Divisional Courts analysis
    become even more apparent when the motion judges reasons are properly
    analyzed. It is plain from his reasons that he undertook 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 noted that in June 2020, formal
    notice was given to the Ottawa bar that civil jury trials would not proceed
    until January 2021 at the earliest. He observed that only a limited number of
    courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time
    of the motion, and no plan had been finalized to accommodate jury trials.
    Further, the conversion of a jury assembly room into a jury deliberation room
    in the Ottawa courthouse would permit only a single jury trial to proceed at
    any given time.

[33]

Thus, contrary to the Divisional Courts
    finding, the motion judge turned his mind to the local conditions and made an
    unassailable finding that it was unknown when or how a jury trial might be
    heard in these matters. 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.
Louis
, at para. 29. In
    the circumstances of these cases, including that the accident took place over
    seven years ago, the motion judge was entirely justified in striking the jury
    notices.

[34]

Finally, I note the respondent Security National
    Insurance submission that since the release of the Divisional Court's decision,
    the tortfeasor defendant settled with the plaintiffs. I am not satisfied that
    this settlement changes the analysis in any meaningful way.

[35]

In summary, the Divisional Court erred in its
    analysis. Its conclusion that the motion judges decision was arbitrary finds
    no support in the motion judges reasons or the record before him. The appeal
    must be allowed on this basis.

IV.     Disposition

[36]

I would grant leave to appeal, allow the appeal,
    set aside the judgment of the Divisional Court, and restore the order of the
    motion judge.

[37]

Regarding the costs of the appeal, the parties
    requested that they be given until January 29, 2021, to attempt to reach an
    agreement on costs. I would grant that request and order that, in the absence
    of an agreement, the appellants have until February 5, 2021, to serve and file
    their costs submissions, the respondents have until February 12, 2021, to serve
    and file their responding submissions, and any reply submissions be served and
    filed by February 17, 2021.

Released: D.W. January 25, 2021

C.W. Hourigan J.A.

I Agree. David Watt J.A.

I Agree. P. Lauwers J.A.


