



COURT OF APPEAL FOR ONTARIO

CITATION: Belton v. Spencer, 2020 ONCA 623

DATE: 20201001

DOCKET: M51814 (C68642)

Brown
    J.A. (Motions Judge)

BETWEEN

John
    Belton

Plaintiff

(Respondent/Responding
    Party)

and

Katie
    Spencer

Defendant

(Appellant/Moving
    Party)

Todd J. McCarthy and Olivier Guillaume,
    for the moving party

Allan Rouben, Laura Hillyer and James
    Page, for the responding party

Heard: September 29, 2020 by video conference

REASONS
    FOR DECISION

I.        OVERVIEW

[1]

The appellant, Katie Spencer, is the defendant
    in a personal injury action brought by the respondent plaintiff, John Belton, seeking
    damages for injuries he alleges he suffered when kicked by the respondents
    horse in May 2010. The appellant moves under r. 63.02(1)(b) of the
Rules of
    Civil Procedure
for an order staying the order of Sheard J. dated
    September 4, 2020 that struck out the parties jury notices (the Order): 2020
    ONSC 5327.

[2]

As a practical matter, granting the stay would result
    in a lengthy adjournment of the trial now scheduled to proceed before a judge
    alone starting next Monday, October 5, 2020. If the stay is not granted, the
    trial will proceed on Monday and it is likely that the issues surrounding the
    appellants appeal will not be considered until after the trial has concluded.

[3]

For the reasons set out below, I dismiss the
    appellants motion for a stay.

II.       BACKGROUND EVENTS

[4]

The motion judge set out a detailed chronology
    of the steps in this action at para. 6 of her reasons. Briefly, the
    horse-kicking event took place on May 31, 2010. The action was commenced on May
    30, 2012. Both parties requested trial by jury. The action was set down on May
    23, 2017 and placed on the Hamilton trial list for the November 2018 sittings.

[5]

As a result of the anticipated late delivery of
    a further plaintiffs expert report, in June 2018 the action was traversed to
    the May 2019 sittings.

[6]

In January 2019, the appellant sought an
    adjournment of the trial due to her travel plans. The action was traversed to
    the November 2019 sittings.

[7]

In September 2019, the appellant advised that
    she intended to call an increased number of witnesses. As a result, it appeared
    that the action would have to be traversed to the March 2020 long trial
    sittings. Respondents counsel advised that he was not available for those
    sittings. In the result, the parties agreed to traverse the action to the
    October 2020 sittings.

[8]

In November 2019, RSJ Arrell of the Central
    South Region directed that the action be placed on the Hamilton long trial
    sittings commencing October 5, 2020 for a trial by jury estimated to take six
    weeks.

[9]

The COVID-19 pandemic hit Ontario in March 2020,
    at which time the Superior Court of Justice restricted the scope of its
    operations.

[10]

During a conference call with RSJ Arrell in June
    2020, the parties were advised that due to the COVID-19 pandemic, it was
    unlikely that civil jury trials would take place in 2020 and that the trial of
    this action would likely be delayed by 12 to 18 months.

[11]

The respondent then moved to strike out the jury
    notices. The motion was heard in writing by the motion judge who released her
    reasons on September 4, 2020. She struck out the jury notices.

[12]

The appellant filed a notice of appeal dated
    September 11, 2020 with this court.

[13]

The respondent filed a notice of motion dated
    September 17, 2020 to quash the appeal on the basis that the Order was
    interlocutory in nature, so an appeal lay with leave to the Divisional Court.

[14]

On the morning of September 23, 2020, the
    parties participated in a conference call with RSJ Arrell, who advised that the
    trial was first on the Hamilton non-jury trial list and would start on Monday,
    October 5, 2020 before a judge alone.

[15]

On September 22, the appellant served a notice
    of motion returnable before a panel seeking to state a case before the Court of
    Appeal pursuant to r. 22.03.

[16]

On September 24, the appellant served a notice
    of motion seeking to stay the Order.

[17]

The respondents motion to quash the appeal and
    the appellants motion to state a case are scheduled to be heard by a panel of
    this court in November 2020.

[18]

Both parties are ready for trial. However, the appellant
    wants a trial with a jury, not by judge alone.

[19]

In her factum, the appellant describes the order
    that she seeks as follows:

The Defendant/Appellant seeks an Order staying
    the Order under appeal dated September 4, 2020 and in turn staying the action
    and adjourning the trial to a date in 2021 as directed by the Local Regional
    Senior Judge after the appeal process in this action and the appeal process in
    other actions involving the identical issue have been exhausted by way of a
    decision of this Court on appeal or by way of Special Case under Rule 22.


III.      THE GOVERNING TEST

[20]

The principles applicable to a motion to stay an
    order pursuant to r. 63.02(1) are well-known. In
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334, the Supreme
    Court of Canada articulated a three-part test for obtaining a stay of a
    judgment pending appeal: (1) is there a serious question to be tried (i.e., to
    be determined on the appeal); (2) will the moving party suffer irreparable harm
    if the stay is not granted; and (3) does the balance of convenience favour
    granting the stay?

[21]

These components of the test are not watertight
    compartments; the strength of one may compensate for the weakness of another:
Circuit
    World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677. As
    well, they are interrelated in the sense that the overriding question is
    whether the moving party has shown that it is in the interests of justice to
    grant a stay:
BTR Global Opportunity Trading Limited v. RBC Dexia Investor
    Services Trust
, 2011 ONCA 620, 283 O.A.C. 321, at para. 16;
Circuit
    World
, at p. 677.

[22]

As put by the authors of
Sopinka and
    Gelowitz on The Conduct of an Appeal,
4th ed. (Toronto: LexisNexis, 2018),
    at §2.187, the factors to be considered by a motion judge are generally
    designed to assess the prejudice to the parties if the order sought is granted
    or refused.

IV.     FIRST COMPONENT: IS THERE A SERIOUS QUESTION TO BE
    DETERMINED ON THE APPEAL?

A.

Framing the serious question to be determined on the appeal

[23]

In her notice of motion, the appellant frames
    the serious question to be determined in respect of the Order in the following
    terms:

There is a serious issue to be determined at
    the appellate level concerning the substantive right to trial by jury amidst
    concern about trial delay associated with the current COVID-19 pandemic.

[24]

In her notice of appeal and counsels oral
    argument, the appellant elaborated on the serious question in two respects.
    First, the appellant submits that the motion judge, sitting in Chambers and not
    as a triage judge or trial judge, erred by permanently depriving her of the
    substantive right to trial by a jury on the eve of trial, without leaving open
    the possibility that the trial judge could direct a trial by judge and jury.
    Second, the motion judge failed to recognize the importance of the appellants
    substantive right to have a trial by jury by failing to properly balance that
    right with a proportionate concern for trial delay and the lack of prejudice to
    the respondent.

B.

Analysis

The questions raised by the motion judges Order
    and reasons

[25]

Even though the threshold for demonstrating a
    serious question for determination on the appeal is low, in my view the merits
    of the appellants appeal are weak.

[26]

The substantive right to a civil jury trial,
    upon which the appellant relies, is a qualified right. As this court stated in
Cowles
    v. Balac
(2006), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006]
    S.C.C.A. No. 496, at para. 32, a partys entitlement to a jury trial is subject
    to the power of the court to order that the action proceed without a jury:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 108(3). While a court should not
    interfere with the right to a jury trial in a civil case without just cause or
    cogent reasons, a judge considering a motion to strike out a jury notice has a
    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:
Cowles
,
    at paras. 36-38. This test recognizes that the paramount objective of the
    civil justice system is to provide the means by which a dispute between the
    parties can be resolved in the most just manner possible:
Cowles
, at
    para. 39.

[27]

As more recently stated by this court in
Girao
    v. Cunningham
, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the
    right to a jury trial in a civil action is fundamental, it is not absolute and
    must sometimes yield to the practicality.

[28]

Given the breadth of the discretion afforded to
    the judge considering a motion to strike out jury notices, it is not surprising
    that the jurisprudence provides that appellate review of the exercise of the
    discretion to dispense with a jury is limited:
Cowles
, at para. 40. To
    justify appellate intervention, it must be shown that the motion judges 
discretion 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.), leave to appeal refused, [1985]
    S.C.C.A. No. 93, at pp. 69-70.

[29]

Accordingly, to succeed on her appeal the
    appellant must show that in granting the Order the motion judge acted upon a
    wrong or inapplicable principle of law or exercised her discretion arbitrarily
    or capriciously.

[30]

However, the only allegation of an error of law apparent
    in the appellants notice of appeal is that the motion judge did not adopt a
    wait and see approach to the motion to strike, thereby contradicting three
    decades of established authority in Ontario in which a motion judge defers to
    the trial judge the issue of whether to strike out a jury notice. In
Cowles
,
    this court described the wait and see approach at para. 70:

Over the years, courts have said that, in some
    cases, when confronted with a motion to strike a jury notice or discharge a
    jury, it is preferable to proceed with the trial and wait until the evidence or
    a substantial portion of it has been heard before deciding whether the
    discharge of the jury is warranted. Experience has shown that in many instances
    the anticipated complexities of a case or other concerns giving rise to a
    motion to dismiss a jury do not materialize or at least not to the extent
    originally asserted. By "waiting and seeing", courts are better able
    to protect the substantive right of the party who wants a jury trial and to
    only dismiss the jury when it becomes necessary to do so.

[31]

Significantly, the court in
Cowles
went
    on to state that taking a wait and see approach is not a rule of law: at
    para. 71. The court observed that the
Courts of Justice Act
and the
Rules
    of Civil Procedure
contemplate that a judge may strike a jury notice even
    before a trial has begun and that a trial judge may dismiss a jury before
    beginning to hear the evidence: at para. 71.

[32]

The motion judge identified the principles in
Cowles
and how subsequent courts have interpreted them: at paras. 15 and 16. She examined
    how those principles should be applied in light of calls by the Supreme Court
    of Canada to remedy the delays endemic to the Canadian civil justice system and
    implement a necessary culture shift in the civil system:
Blencoe v.
    British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R.
    307, at para. 140;
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87,
    at para. 28.

[33]

The motion judge explained how the motion to
    strike required her to apply these entrenched principles to the reality [the
    court] now faces: at para. 36. That reality has two components. First, on
    March 17, 2020 the Superior Court of Justice suspended civil jury selection and
    jury trials. Second, at the time the motion judge wrote her reasons, there had
    been no new announcements detailing how and when the courts in this Judicial
    Region will be able to resume conducting civil jury trials: at para. 8. That
    meant no judge would be assigned to hear the action as a civil jury trial until
    some uncertain date in the future. As a result, if a wait and see approach
    is taken, the delay in the scheduling of the trial that the plaintiff seeks to
    avoid, will have already occurred. For that reason, I find that the wait and
    see approach to be unsuitable: at para. 38.

[34]

Assessing the motion judges reasons as a whole,
    it is not apparent that she exercised her discretion based on a wrong principle
    of law.

[35]

It also is not apparent from her reasons that
    the motion judge exercised her discretion arbitrarily or capriciously. She
    considered the appellants submission that earlier delays by the respondent
    should not enable him to deprive the appellant of her substantive right to a
    trial, and she explained why she did not accept the submission: at paras. 39 to
    42. Nor did she accept the appellants contention that pandemic-related delays
    would affect both jury and non-jury trials equally. She referred to the
    evidence before her that RSJ Arrell had informed the parties in June 2020 that
    a non-jury trial could be scheduled in late 2020 or early 2021. In her view,
    the evidence disclosed that it was more likely that a non-jury trial could be
    scheduled earlier than a jury trial: at para. 43.

[36]

Weighing the various factors, the motion judge
    set out the results of her balancing exercise at paras. 45 and 47:

The parties are ready for trial. But for the
    pandemic, the trial would have proceeded in October 2020. The events that gave
    rise to the action are already a decade old. The defendant's right to a trial
    by jury, is outweighed by the need to provide the plaintiff with more timely
    access to justice.



COVID-19 has created additional challenges to
    ensuring access to justice, which, in this case, requires the court to strike
    the defendants jury notice in order to do what is possible to ensure an
    earlier and more efficient and more affordable trial.

[37]

On its face, the motion judges balancing
    exercise does not appear arbitrary or capricious.

[38]

Accordingly, in light of the standard of
    deference applicable to the motion judges exercise of her discretion, I regard
    the merits of the questions the appellant seeks to have determined on the
    appeal as weak.

Questions relating to the jurisdiction of
    this court

[39]

There is one further aspect of the serious
    question component that I must consider.

[40]

The respondent takes the position that the Order
    is interlocutory in nature and, therefore, the appellant has appealed to the
    wrong court  her appeal properly lies to the Divisional Court with leave:
Courts
    of Justice Act
, s. 19(1)(b). In response, the appellant submits that she
    has filed a notice of appeal in the Court of Appeal, her appeal has been
    assigned an appeal number, and she therefore has a proper appeal before this
    court unless and until a panel gives effect to the respondents motion to
    quash.

[41]

I adopt the approach taken by my colleague,
    Simmons J.A., in
Fontaine v. Attorney General of Canada
, 2020 CanLII
    64770 (Ont. C.A.), at para. 14, where she stated:

It is not for me, sitting as a single judge of
    this court, to determine whether this court has jurisdiction to entertain the
    appellants appeal. Nonetheless if I were persuaded that the Order under appeal
    was interlocutory, or even probably interlocutory, that would militate against
    granting the requested stay.

[42]

The weight of authority holds that an order
    striking out a civil jury notice is interlocutory in nature.

[43]

First, in
Belende c. Greenspon
, 2007
    ONCA 448, 226 O.A.C. 175, leave to appeal refused, (2008) 249 O.A.C. 398, a
    panel of this court held that such an order is interlocutory, stating, at para.
    3:

Malgré le fait quun droit à un procès devant
    jury est un droit de fond, la decision dannuler ou de ne pas annuler
la convocation du jury
ne détermine aucunement les questions
    en litige dans cette affaire. Plutôt, lordonnance du juge Reilly est sur une question
    collatérale. Voir
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.).
    Lordonnance ne met pas fin aux poursuites de Monsieur Ndem et ne limite pas
    les recours quil demande.
Voir
Buck Brothers Ltd.
    v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.);
Huras v.
    Primerica Financial Services Ltd.
(2000), 137 O.A.C. 79 (Ont. C.A.).

(unofficial Google translation)

Despite the fact that a right to a jury trial
    is a substantive right, the decision to set aside or not to set aside the jury notice
[1]
does not in any way determine the issues in this case. Rather,
    Justice Reilly's order is on a collateral issue. See
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.). The order does not put an end to Mr. Ndem's prosecution
    and does not limit the remedies he requests. See
Buck Brothers Ltd. v. Frontenac
    Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.);
Huras v. Primerica
    Financial Services Ltd.
(2000), 137 O.A.C. 79 (Ont. C.A.).

[44]

The appellant argues that the decision in
Belende
is unclear and was incorrectly decided. I see nothing unclear in the decision;
    it remains the most recent decision of a panel of this court on the issue.

[45]

Second, although the decision of this court in
Stoicevski
    v. Casement
(1983), 43 O.R. (2d) 436 (C.A.) did not involve an order
    striking out a jury notice, in the course of its reasons the panel identified a
    matter involving a jury notice as one that results in an interlocutory order: at
    p. 438.

[46]

Third, a group of Divisional Court decisions
    treats orders striking out jury notices and orders dismissing motions to strike
    out jury notices as interlocutory:
Benjamin v. Primerica Life Insurance
    Company et al.
, 2017 ONSC 6273, 12 C.P.C. (8th) 82 (Div. Ct.);
Safranyos
    v. McHugh
, 2015 ONSC 6146, 2015 CarswellOnt 14954 (Div. Ct.), at para. 7;
Kayhan
    v. Greve
(2008), 92 O.R. (3d) 139 (Div. Ct.);
Forget v. Sutherland
,
    [2006] O.J. No. 422 (Div. Ct.).

[47]

Fourth, one of the classic articulations of the
    distinction between a final and an interlocutory order is that found in
Ball
    v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). There, this court stated that a
    final order is not only one that finally disposes of the rights of the parties
    to the litigation, but an order may also be final if it finally disposes of a
    defence and thereby deprives the defendant of a substantive right which could
    be determinative of the entire action: at p. 324.

[48]

The appellant contends that the frequent
    references in the jurisprudence to the right to a civil jury trial as a
    substantive right signifies that an order striking a jury notice is a final
    order as described in
Ball v. Donais
. As the respondent points out,
    the difficulty with that submission is that an order striking out a jury notice
    does not deprive the appellant of a substantive right that could be
    determinative of the entire action. Such an order merely directs a mode of
    trial. And, as this court stated in
Cowles
, at para. 38, neither party
    has an unfettered right to determine the mode of trial: see also,
Cheung v.
    Samra
, 2018 ONCA 923, 431 D.L.R. (4th) 18, at para. 7;
Williams v.
    Grand River Hospital
, 2016 ONCA 793, 134 O.R. (3d) 319, at paras. 5-6.

[49]

Finally, the appellant points to a 1961 decision
    of this court in
Such v. Dominion Stores Ltd.
, [1961] O.R. 190 (C.A.).
    In that case, the plaintiff was granted leave to appeal to the Court of Appeal
    from the order of a High Court judge striking out a jury notice. However, that
    unusual route of appeal was the product of a provision of the
The Judicature
    Act
, R.S.O. 1960, c. 197, that was repealed in 1971
[2]
and a practice convention regarding appeals from r. 400 of the
    former
Rules of Practice
[3]
(striking out jury notices) that disappeared long ago.
[4]
As a consequence, the appeal
    routes described in the
Such
decision offer no assistance for a contemporary
    inquiry into whether an order striking out a jury notice is final or
    interlocutory.

Conclusion

[50]

As mentioned, I regard the merits of the questions
    the appellant seeks to determine on the appeal as weak. The weight of the
    jurisprudence strongly suggests the Order probably is interlocutory. In those
    circumstances, I conclude that the question to be determined on the appeal
    factor militates against granting the requested stay.

V.      SECOND COMPONENT: IRREPARABLE HARM

[51]

The irreparable harm stage of the analysis
    focuses on the harm the moving party may suffer if the stay is not granted:
RJR-MacDonald
,
    at pp. 340-341. A court must ascertain whether a refusal to grant the stay could
    so adversely affect the moving partys interests that the harm could not be
    remedied if the eventual decision on the merits does not accord with the result
    of the stay motion:
RJR-MacDonald
, at p. 341. Irreparable, in this
    sense, refers to the nature of the harm suffered rather than its magnitude. It
    is harm which either cannot be quantified in monetary terms or which cannot be
    cured:
RJR-MacDonald
, p. 341. Irreparable harm may occur where the
    failure to grant a stay would render any subsequent appeal moot:
Sopinka
    and Gelowitz
, at §2.192.

[52]

As I understand the appellants materials and
    submissions, she contends that if a stay of the Order is not granted, she will
    suffer irreparable harm in three ways.

[53]

First, she submits, in effect, that the loss of
    her substantive right to a civil jury trial in and of itself constitutes irreparable
    harm. As deposed by one of her trial counsel, Christopher Missiuna, the
    appellant has never waivered from her desire to exercise her substantive right
    to have this matter be heard by a jury.

[54]

I am not persuaded by this submission. Although
    the right to a civil jury trial is a substantive right, it is a qualified, not
    absolute, right, and is subject to removal where justice to the parties will be
    better served by the discharge of the jury. As this court stated in
Cowles
,
    at para. 38, neither party has an unfettered right to determine the mode of
    trial.

[55]

If a stay is not granted and the trial proceeds
    next week, the appellant will have her defence adjudicated by a single judge,
    instead of a judge and jury. Both a single judge and a jury labour under the
    same duty to do justice impartially and dispassionately, based on the evidence
    before them. The appellant has not explained, in specific functional terms,
    what litigation disadvantage she might suffer if her rights are adjudicated by
    an impartial and independent judge instead of by an impartial and independent
    jury. Absent evidence of such specific litigation disadvantage and given the
    qualified nature of the right to a civil jury trial, I do not regard the
    prospect of proceeding to trial before a judge alone as causing irreparable
    harm.

[56]

Second, the appellant argues that if a stay is
    not granted and the trial proceeds, her appeal before this court will be
    rendered moot, causing her irreparable harm.

[57]

Certainly, irreparable harm may arise where the
    failure to grant a stay may render an appeal moot:
Thomson v. Alberta
    (Transportation and Safety Board)
, 2003 ABCA 322, 233 D.L.R. (4th) 562, at
    paras. 19-21. However, I do not regard this case as one where that
    consideration plays a role.

[58]

The record discloses that the appellants
    decision to appeal the Order to this court, instead of seeking leave to appeal
    from the Divisional Court, was a tactical decision. It is apparent that prior
    to filing her notice of appeal in this court, appellants counsel were aware of
    the panel decision in
Belende
that held an order striking out a jury
    notice is interlocutory in nature. One of her counsel, Mr. Guillaume, was
    counsel on the
Belende
case.

[59]

As well, through her pending motion to state a
    special case before this court, the appellant acknowledges that she seeks to
    jump over any lower levels of appeal since, in her view, the issue of the
    entitlement to a civil jury trial is one of province-wide importance that
    requires consideration by this court. As her counsel put it in oral argument,
    her appeal ultimately will end up in our court, so it makes more sense to deal
    with it here and now.

[60]

Given the weight of authority that an order striking out a civil
    jury notice is interlocutory in nature, it was open to the appellant to move
    for leave to appeal the Order to the Divisional Court in a timely fashion and,
    in the context of that motion, seek a stay of the Order: r. 63.02(1)(b).
    Instead, the appellant has adopted the higher-risk strategy of appealing to
    this court. An appellant may take such a calculated risk. But, in those
    circumstances, I do not think it open to the appellant to argue that the
    possible mootness of her appeal to this court amounts to irreparable harm.

[61]

Third, Mr. Missiuna deposes that if a stay is
    not granted, it would be a waste of judicial resources to start or hold an
    entire eight-week non-jury civil trial starting on October 5, 2020, and during
    the time period that the trial takes place or after the trial has been completed,
    to have the Defendants appeal on the striking of the jury heard and determined
    in favour of the Defendant. According to Mr. Missuna, it is likely that
    hundreds of thousands of dollars in legal costs would have been incurred by
    doing an eight-week civil non-jury trial before the appeal is heard.

[62]

I regard this contention as speculative and the
    prospect of losing hundreds of thousands of dollars in legal costs as remote.

[63]

For these reasons, I conclude that that the
    appellant has not demonstrated that she will suffer irreparable harm if a stay
    is not granted.

VI.     THIRD COMPONENT: BALANCE OF
    CONVENIENCE

[64]

The final component of the
RJR-MacDonald
stay test requires a determination of which of the two parties will suffer the
    greater harm from the granting or refusal of the stay, pending a decision on
    the merits: at p. 342. The harm which might be suffered by the respondent is
    dealt with at this stage of the analysis:
RJR-MacDonald
, at p. 341. The
    factors which must be considered in assessing the balance of inconvenience are
    numerous and will vary in each individual case.

[65]

The appellant submits that the balance of
    convenience favours preserving the
status quo
of the parties
    agreement last year to proceed to trial before a judge and jury.

[66]

The difficulty with the appellants submission
    is that it ignores the impact that the COVID-19 pandemic has had on the ability
    of the Central South Region of the Superior Court of Justice to offer civil
    jury trials during the balance of 2020. The evidence is undisputed that civil
    jury trials likely will not resume in the region for another 12 to 18 months.

[67]

In light of that very material change in
    circumstances, the respondent re-assessed his desire for a jury trial and moved
    to strike out the jury notices so that a trial could take place. That was an
    understandable decision for a plaintiff to make who was injured a decade ago
    and whose action has yet to come to trial. By the time the October 5, 2020
    trial date for a jury trial was set in November 2019, this action had
    languished in the civil justice system for far too long. For the plaintiff to
    wait a further 12 to 18 months for a civil jury trial to have his claim
    adjudicated would result in an unconscionable delay that should not be
    countenanced by our civil justice system.

[68]

Nor do I accede to the appellants argument that
    the balance of convenience favours staying the Order so that an appellate court
    can figure out a province-wide solution to the challenges that the pandemic has
    imposed on the ability of certain regions of the Superior Court of Justice to
    offer civil jury trials.

[69]

In addition to the decision of the motion judge,
    the parties have referred to four other recent decisions involving motions to
    strike out civil jury notices. Three are decisions of judges in the East
    Region:
Louis v. Poitras
, 2020 ONSC 5301;
Coban v. Declare
,
    2020 ONSC 5580; and
Higashi v. Chiarot
, 2020 ONSC 5523. In all three
    cases, the jury notices were struck out, in large part because it was not known
    when civil jury trials would resume in the East Region. In
Higashi
,
    the motion judge left it open for the parties to return before him if it became
    known when a jury trial might occur before the action proceeded to a judge
    alone trial. In
Coban
, the jury notice was struck but the trial was adjourned
    for six months to enable the defendant to obtain further responding medical
    reports.

[70]

A different result was reached in the fourth
    case, out of the Toronto Region,
Jiang v. Toronto Transit Commission
,
    2020 ONSC 5727. In that case, Justice D. Wilson refused to strike the jury
    notice because Toronto is offering civil jury trials: at para. 8.

[71]

The appellant submits that the cases display
    conflicting decisions among lower Court Judges as to the correct approach to
    be taken, which favours this court: granting a stay of the Order; by-passing
    the normal leave motion process to the Divisional Court or Court of Appeal;
    stating a special case; hearing from parties to other cases, as well as
    intervenors; and coming up with a province-wide solution to the issue of COVID-19s
    effect on civil jury trials.

[72]

I reject that submission for three reasons.

[73]

First, the focus of this stay motion must be on
    the rights of the parties to this action.

[74]

Second, the pandemic may well have subsided by
    the time the appellants lengthy proposed court-based provincial solution
    process reached a conclusion.

[75]

Third, the resources available for civil jury
    trials vary from region to region in this province. I do not regard the cases
    referred to by counsel as conflicting in principle. Instead, they reflect the
    exercise of judicial discretion in differing circumstances. I do not see it to
    be the role of this court to interfere with or micro-manage the diligent
    efforts of various Regional Senior Justices of the Superior Court of Justice to
    juggle and prioritize the allocation of their resources during this extraordinary
    time.

[76]

For these reasons, I conclude that the balance
    of convenience overwhelmingly favours not granting a stay of the Order and
    allowing the trial of this far-too-old action to proceed.

VI. THE
    OVERARCHING CONSIDERATION: IS IT IN THE INTERESTS OF JUSTICE TO GRANT A STAY?

[77]

I have concluded that all three components of
    the
RJR-MacDonald
test favour refusing to grant a stay. That
    conclusion is reinforced by a holistic consideration of the three components in
    light of the overarching consideration of whether it is in the interests of
    justice to grant a stay.

[78]

This action is long overdue for trial,
    concerning as it does events that took place 10 years ago. The parties are
    ready for trial and have been for some time. COVID-19 came out of left-field
    and upset the trial courts scheduling apple cart. But the Central South Region
    can make a judge available this coming Monday to try this personal injury case.
    If not tried then, the record shows that it will likely be over a year before
    the matter can return before a civil jury. That would be an unconscionable wait.
    The qualified right to a civil jury trial cannot dictate such a result, as it would
    be completely contrary to the interests of justice. Consequently, I dismiss the
    appellants motion for a stay of the Order.

VII.    DISPOSITION

[79]

For the reasons set out above, the motion for a
    stay of the Order is dismissed.

[80]

If the parties are unable to agree upon the
    costs of the motion, they may file brief written cost submissions, together
    with bills of costs, within 21 days of the release of these reasons.

David Brown J.A.





[1]
Although Google translates la convocation du jury as the jury
    summons, the official French version of the
Rules of Civil Procedure
translates jury notice as la convocation du jury.



[2]
Section
    26(1)(c) of the
Judicature Act
, R.S.O. 1960, c. 197 stated an appeal lay
    to the Court of Appeal from any judgment, order or decision of a judge in
    chambers in regard to a matter or practice or procedure that affects the
    ultimate rights of any party, and, subject to the rules, from any other
    judgment, order or decision of a judge in chambers in regard to a matter of
    practice or procedure. Section 26(1)(c) was repealed in 1971 by
An Act to
    amend The Judicature Act
, S.O. 1971, c. 57, s. 3.



[3]

Rule 398 at the time
Such
was decided.



[4]

In
Such
, at p. 195, this court stated that no review
    of an order made under r. 400 of the
Rules of Practice
striking out a
    jury notice was possible unless another judge of the High Court had granted
    leave.


