



COURT OF APPEAL FOR ONTARIO

CITATION: Louis v. Poitras, 2020 ONCA 815

DATE: 20201215

DOCKET: M51956 (M51943)

Brown J.A. (Motion
    Judge)

BETWEEN

Firma Louis and Marcdere
    Louis

Plaintiffs

(Moving Parties)

and

Jacques Poitras and
Security
    National Insurance Company

Defendants

(
Responding Party
)

AND BETWEEN

Firma Louis

Plaintiff

(Moving Party)

and

TD Insurance Meloche
    Monnex and Security National Insurance Company

Defendants

(Responding Parties)

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

Barry Marta and Andrew
    Cottreau, for the responding party Security National Insurance Company

Joseph Griffiths, for the responding
    party TD Insurance Meloche Monnex

Heard: December 11, 2020 by video conference

REASONS FOR DECISION

I.        OVERVIEW

[1]

The plaintiffs, Firma Louis and Marcdere Louis (the Plaintiffs), move
    for a stay of the Divisional Courts order, dated November 16, 2020,
    reinstating the defendants jury notices (the DC Order), pending the hearing
    of the Plaintiffs motion for leave to appeal to this court:
Rules of Civil
    Procedure,
rr. 61.03.1 and 63.02(1)(b). For the reasons set out below, I
    grant the stay and make certain directions regarding the hearing of the leave motion.

II.       BACKGROUND EVENTS

[2]

Ms. Louis was involved in a motor vehicle collision in Ottawa on May 9,
    2013. Two actions have resulted: a tort action and an accident benefits action.
    Jury notices have been filed in each action. The defendant TD Insurance Meloche
    Monnex (TD Insurance) issued the insurance policy in the accident benefits
    action. That policy was underwritten by the defendant Security National
    Insurance Company (Security National), who is also the Plaintiffs OPCF-44R
    insurer.

[3]

The trial of the tort action was scheduled for May 2018. It was
    adjourned because Plaintiffs counsel was in trial on another matter. As a
    result of a subsequent trial management conference, the two actions were
    ordered tried together in a 10-week jury trial commencing April 20, 2020.

[4]

COVID-19 then intervened. The April 20, 2020 trial date was lost. No one
    disputes that but for the pandemic the trial of both actions would have
    proceeded this past April. All parties are ready for trial.

[5]

In July, the Plaintiffs moved for an order striking the jury notices in
    both actions. The motion judge, Beaudoin J., heard the motion in late August
    and granted the order on September 9: 2020 ONSC 5301 (the MJ Reasons). 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. That
    prompted the motion judge to craft a very creative solution. He ordered the
    trial to proceed in three-week tranches and directed the parties to attend the
    next Trial Management Court to obtain the first available date for trial: at
    paras. 59-63.

[6]

At an October 9, 2020 case conference before Master Kaufman, the first
    three-week tranche of the trial was scheduled to commence on February 22, 2021.
    The case conference master noted: Counsels availability was canvassed, and
    they are all available for a first three-week tranche commencing February 22,
    2021. Mr. Griffiths would be double-booked, but expects his other matter to
    settle.

[7]

The defendants sought leave to appeal the motion judges order to the
    Divisional Court. That court expedited the matter and arranged to hear both the
    leave to appeal and appeal at the same time. The hearing was held on November
    2, 2020.

[8]

The Divisional Court released its reasons on November 16: 2020 ONSC 6907
    (the DC Reasons). It granted the defendants leave to appeal and allowed the
    appeal. The Divisional Court concluded that the motion judge had exercised his
    discretion to strike out the jury notices in an arbitrary fashion: at para. 2.
    The effect of the DC Order was to reinstate the jury notices in both actions. The
    Divisional Court stated that the appeal was granted without prejudice to the
    motion [to strike] being renewed whenever information is available to be
    considered by the court as to either prejudice to the parties or the overall
    administration of justice: at para. 81.

[9]

On November 17, 2020, the Plaintiffs filed a notice of motion for leave
    to appeal the DC Order to this court. At the same time, they initiated this motion
    to stay the DC Order.

[10]

The
    following day, the parties were back in Ottawa Trial Management Court before
    Gomery J. The defendants Security National and TD Insurance (the Defendants)
    sought to vacate the February 22, 2021 date. Gomery J. refused, writing:

In my view, Master Kaufman anticipated that the appeal to the
    Divisional Court would finally resolve the question of whether the actions
    would be tried by judge and jury or by judge alone. The Courts decision did
    not do so. The plaintiff may obtain a stay of the order or leave to appeal on
    an expedited basis. Alternatively, [she] may obtain a hearing, on an urgent
    basis, to re-argue [her] motion to strike.

I conclude that the defendants will not suffer any prejudice if
    the February 2021 trial dates remain in place for another month. The actions
    shall be listed on the next [Trial Management Court] on December 16, 2020, at
    which time the presiding judge can revisit whether the trial dates should be
    vacated.

[11]

On
    November 20, 2020, the Plaintiffs initiated a second motion in Ottawa seeking
    to strike out the jury notices.

[12]

Consequently,
    these actions will be back in Ottawas Trial Management Court on December 16
    and in motions court on December 17, 2020. As matters now stand, the court in
    Ottawa has not vacated the February 22, 2021 trial date.

[13]

Plaintiffs
    counsel advised that a settlement was recently reached with the defendant
    Jacques Poitras.

[14]

The
    remaining Defendants both oppose the Plaintiffs motion for a stay of the DC Order.

III.      THE GOVERNING TEST
[1]

[15]

The
    principles applicable on a motion to stay an order pursuant to r. 63.02(1)(b)
    are well-known. In
RJR-MacDonald Inc. v. Canada (Attorney General)
,
    [1994] 1 S.C.R. 311, the Supreme Court of Canada articulated, at p. 334, 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?

[16]

The
    factors 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.

[17]

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.

[18]

Since
    this is a stay motion in the context of a motion for leave to appeal to this
    court, to the standard
RJR-MacDonald
factors must be added a consideration
    of the principles governing applications for leave to appeal from orders of the
    Divisional Court, set out in
Sault Dock Co. Ltd. v. Sault Ste. Marie (City)
(1972), [1973] 2 O.R. 479 (C.A.).

IV.     FIRST
    FACTOR: SERIOUS QUESTION TO BE DETERMINED

A.

Assessing the serious
    question issue arising from
RJR-MacDonald


[19]

The
    Plaintiffs submit that there is a serious question to be tried, namely: whether
    there was any basis in fact or law for the Divisional Court to (a) conclude
    that the motion judge acted arbitrarily in granting the Plaintiffs motion to
    strike the jury notice and (b) interfere with the exercise of discretion by a
    Superior Court judge who found that justice would be better served by striking
    the jury notice.

[20]

I
    am persuaded by the Plaintiffs submission.

[21]

Appellate
    review of the exercise of a judges discretion to dispense with a jury is limited:
Cowles v. Balac
(2006), 83 O.R. (3d) 660 (C.A.), at para. 40, leave to
    appeal refused, [2006] S.C.C.A. No. 496. This is not surprising, given the breadth
    of discretion afforded to a judge considering a motion to strike out jury
    notices. 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.), at pp. 69-70, leave to appeal refused, [1985]
    S.C.C.A. No. 93.

[22]

The
    Divisional Court summarized its reasoning for setting aside the motion judges
    order at para. 2 of its reasons, where it wrote, in part:

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. We grant the appeal but without prejudice to a further motion
    seeking to strike the jury notice with evidence that would provide what was
    missing in the decision of the motion judge.

[23]

The
    Divisional Court went on to state that:

(i)    What
    is plain is that there was no foundation for a determination by the motion
    judge that the delay created by the pandemic caused any prejudice to the
    parties such that the jury notice could be struck: at para. 23;

(ii)    
[A] general assertion of delay is not enough. It may be
    that in the presence of a broad based, court-wide delay some cases can be
    accommodated: at para. 50
;

(iii)   In
    the case being decided, the judge relied only on the fact of delay without any
    evidence applicable to the specific situation: at para. 55;

(iv)   It
    is the absence of information that informs the particular situation as to
    either or both of justice between the parties or the administration of justice
    that renders the decision of the motion judge arbitrary: at para. 64; and

(v)   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: at para.
    66.

[24]

It
    is very difficult to reconcile these findings by the Divisional Court with the
    reasons actually written by Beaudoin J. With respect to the current and future
    availability of civil jury trials in Ottawa, the motion judge stated:

(i)    In
    Ottawa, prior to the courts temporary suspension of operations in March 2020
    as a result of the pandemic, there was a growing backlog of civil cases. If a
    trial was expected to take three or more weeks, parties would typically wait at
    least two years after setting a civil case down to proceed to trial, whether
    the trial was judge-alone or with a jury: at para. 1;

(ii)    In
    June 2020, formal notice was given to the Ottawa bar that civil jury trials would
    not proceed until January 2021 at the earliest: at para. 6;

(iii)   At
    the time of the motion, only a limited number of courtrooms in Ottawa had been
    retrofitted with plexiglass dividers and no plan had been finalized to
    accommodate jury trials: at para. 10;

(iv)   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: at
    para. 11;

(v)
It was unknown when or how a new jury trial might be heard
in this matter: at para. 58; and

(vi)   At
    the most recent Trial Management Court, Gomery J. had advised that the court
    could readily fix hearing dates for civil non-jury trials of three weeks or
    less within the next six months: at para. 59.

[25]

The
    motion judge also referred to
Higashi v. Chiarot
, 2020 ONSC 5523,
    which had been released eight days earlier, on September 1. In
Higashi
,
    Roger J.s oral reasons set out at length the status of the availability of
    civil jury trials in Ottawa.

[26]

No
    party has questioned the accuracy of the information recited by the motion
    judge. Civil jury trials were not being held in Ottawa at the time of the
    August motion. Nor were they being held or scheduled at the time of the hearing
    before the Divisional Court or prior to the release of its reasons. In an
    October 13, 2020 memorandum, East Region R.S.J. MacLeod stated that civil jury
    trials have already been suspended for the rest of the year and, in a November
    6, 2020 memo, the R.S.J. announced that civil jury trials remain suspended
    until further notice. That remains the case today.

[27]

In light of the information referenced by the motion judge set out in para.
    24 above, it is very difficult to understand how the Divisional Court could
    conclude, as it did at para. 2 of its Reasons, that the decision of the motion
    judge was made
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, or how
    it could conclude, at para. 50, that a general assertion of delay is not
    enough. It may be that in the presence of a broad based, court-wide delay some
    cases can be accommodated.
[2]

[28]

The
    motion judge clearly explained the evidence, or information, that he was
    relying on. The Divisional Court was prepared to accept information of a
    similar nature, although perhaps not from identical sources, in its commentary
    on decisions concerning other COVID-19-strike-jury-notice motions: see the comments
    of the Divisional Court on the motion decisions in
Belton v. Spencer
,
    2020 ONSC 5327, stay denied, 2020 ONCA 623 (DC Reasons, at paras. 31-33 and
    53-54);
Jiang v. Toronto Transit Commission
, 2020 ONSC 5727 (DC Reasons,
    at paras. 48-49);
Higashi
(DC Reasons, at paras. 55-57);
MacDougall
    v. Sisley
, 2020 ONSC 6632 (DC Reasons, at paras. 59-63).

[29]

As
    well, the motion judge stated that it was unknown when or how a new jury trial
    may be heard. This was correct at the time of the motion; correct at the time
    of the Divisional Court hearing; and correct today.

[30]

With
    respect to the specific circumstances of the parties, the motion judge wrote:

(i)    The
    actions were commenced in 2015: at paras. 13 and 20;

(ii)    The
    May 2018 trial date for the tort action was vacated because Plaintiffs counsel
    was at trial on another matter: at para. 14. As well, the situation of counsel
    for Mr. Poitras at the time raised doubt as to whether this matter could have
    proceeded on the original May 2018 date: at para. 16;

(iii)   The
    trial of both actions was scheduled to start on April 20, 2020 and run for 10
    weeks: at para. 18;

(iv)   The
    parties were ready to proceed on that date, but the trial was adjourned because
    of the effect of the pandemic on court operations: at para. 21;

(v)   The
    Plaintiffs had waited seven years for the trial of their actions: at para. 58;

(vi)   All
    parties were ready for trial: at para. 58;

(vii)  Any
    delay likely would require costly updated expert reports: at para. 58; and

(viii)
It was not known when or how a new jury trial might be
    heard
: at para. 58.

[31]

Reviewing
    the information referenced by the motion judge, set out in para. 30 above, it
    is also very difficult to understand how the Divisional Court could conclude,
    as it did at para. 2 of its Reasons, that the decision of the motion judge was
    made without information about the particular circumstances of the case.

[32]

Finally,
    it is difficult to understand how the Divisional Court could conclude, in para.
    23, that: What is plain is that there was no foundation for a determination,
    by the motion judge, that the delay created by the pandemic caused any
    prejudice to the parties such that the jury notice could be struck. To the
    contrary, it is clear from the motion judges reasons that the Plaintiffs had
    already waited seven years since the collision for the trial of their actions
    and, in light of the impact of the pandemic on local court operations, [i]t
    was not known when or how a new jury trial might be heard. Based on that
    foundation, the motion judge found that the real and substantial prejudice
    arises simply by reason of delay: at para. 46.

[33]

That
    was a legally permissible finding. Delay in obtaining a date for a civil jury
    trial can, by itself, constitute prejudice and justify striking out a jury
    notice. This should not be a surprising proposition. Part of the service
    guarantee to the public made in r. 1.04(1) is that courts will work to provide
    the most expeditious   determination of
every
civil proceeding on its merits (emphasis added). Delay in providing trial
    dates undermines that service guarantee. The late Willard Z. Estey, a former
    justice of the Supreme Court of Canada, captured the point well when he stated
    that delay in the settlement or disposal of conflicting claims is  a primary
    enemy of justice and peace in the community: MJ Reasons, at para. 48.

[34]

For
    those reasons, I conclude that the Plaintiffs have raised a very serious
    question to be tried as to whether there was any basis in fact or law for the
    Divisional Court to conclude that the motion judge acted arbitrarily in
    granting the Plaintiffs motion to strike the jury notice.

B.

Considering the
Sault
    Dock
principles

[35]

But,
    does that get the Plaintiffs over the serious question threshold in the
    context of a motion for leave to appeal an order of the Divisional Court to the
    Court of Appeal?

[36]

The
    Defendants submit that it does not. They argue that, since the motion judges
    decision was set aside because it was not based on evidence, the Divisional
    Courts decision applies only to the parties, without any broader application. In
    other words, they contend that the Divisional Courts decision does not raise
    issues that normally would attract leave to appeal to this court under the
Sault
    Dock
principles.

[37]

This
    court set out the applicable test in
Sault Dock
, at pp. 480-81:

While it may not be desirable to attempt to formulate a
    catalogue of the circumstances under which leave to appeal would be granted by
    this Court, to carry out what is considered to be the purpose of the
    Legislature, the Court of Appeal should be satisfied before granting leave that
    the matter will present an arguable question of law or mixed law and fact
    requiring of the Court consideration of matters such as the following:

(a) the interpretation of a statute
    or Regulation of Canada or Ontario including its constitutionality;

(b) the interpretation,
    clarification or propounding of some general rule or principle of law;

(c) the interpretation of a
    municipal by-law where the point in issue is a question of public importance;

(d) the interpretation of an
    agreement where the point in issue involves a question of public importance.

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.

The outlining of the foregoing criteria is not to say that in
    cases in which there is clearly an error in a judgment or order of the
    Divisional Court, it is not the duty of the Court of Appeal to grant leave so
    that it might correct the error. However, the possibility that there may be
    error in the judgment or order will not generally be a ground in itself for
    granting leave. [Emphasis added.]

[38]

In my view, there are strong grounds to believe that the serious
    question the Plaintiffs raise satisfies the
Sault Dock
test in two
    respects.

[39]

First,
    as I have mentioned, it is quite difficult to understand how the Divisional
    Court could reach the conclusions summarized in para. 2 of its Reasons given the
    motion judges findings set out in paras. 24 and 30 above. The serious question
    advanced by the Plaintiffs arguably falls within the
Sault Docks
category
    of an obvious misapprehension of the Divisional Court of the relevant facts.

[40]

Second,
    the serious question raised by the Plaintiffs also arguably engages a matter of
    public importance that this court should consider in the interest of justice
.
The statutory right to a civil jury trial is a qualified right, subject to the
    power of the court to order an action to proceed without a jury:
Belton
(C.A.),
    at para. 26;
Girao v. Cunningham
, 2020 ONCA 260, 2 C.C.L.I. (6th) 15,
    at para. 171. 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. 37-38.

[41]

That
    rather broad discretion currently is exercised by judges in an environment
    influenced by two key factors, one external to the court system and one
    internal to it.

[42]

The
    external factor is the reality of COVID-19s profound effect on the means by
    which Ontario courts can continue to offer their services to the public.

[43]

The
    internal factor stems from the Supreme Court of Canadas description of our court
    system as one marked by a mind-set of complacency and a willingness to
    tolerate excessive delays:
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631, at paras. 4 and 29. In
Jordan
and
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court called for a culture shift
    (
Hryniak
, at para. 2) and a change of direction (
Jordan
, at
    para. 5). While the long duration of the pandemic has many actors in the civil
    justice system desiring to return back to normal, one must not forget that
    the good old ways caused unacceptable delays and are the very ways that the
    Supreme Court in
Hyrniak
and
Jordan
has charged the court
    system to discard.

[44]

As
    well, as Myers J. observed (in a pre-pandemic context) in
MacLeod v.
    Canadian Road Management Company
, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314,
    at para. 32:

The court must react to the realities
    facing civil litigants and the civil justice system
. It is not news to
    anyone that delays and the high cost of civil proceedings impair access to
    justice. The Supreme Court has declared that [e]nsuring access to justice is
    the greatest challenge to the rule of law in Canada today. Systemic issues
    like the insufficient judicial compliment, resource deployment away from civil
    cases as a result of
R. v. Jordan
and other pervasive funding
    concerns affect the realities facing civil litigants.
The
    courts ability to provide long civil jury trials in an expeditious,
    affordable, proportionate way may be suffering as a result. Where this is so,
    the systemic realities may impair access to civil justice. The right to a civil
    jury trial might therefore have to yield in appropriate cases in order to
    provide the parties with an expeditious, affordable, and proportionate
    resolution that is fair and, especially, one that is just as we currently
    comprehend that term
. [Emphasis added.]

[45]

To
    those realities must now be added the significant impact that the COVID-19 pandemic
    has had on the operations of Ontarios courts.

[46]

When
    looked at in that context, the serious question for appeal advanced by the
    Plaintiffs raises a matter of public importance, which I would articulate in
    two related ways:

(i)    In
    the age of
Hryniak
,
Jordan
, and now COVID-19, should
    intermediate appellate courts  such as the Divisional Court and the Court of
    Appeal  support or restrain efforts by motion judges, exercising their discretion
    regarding the timing and mode of determining a civil proceeding, to find
    solutions that achieve the fundamental mandate of r. 1.04(1), namely the most
    expeditious and least expensive determination of every civil proceeding on the
    merits?

(ii)    Or,
    put more colloquially: Are intermediate appellate courts agents of change in
    shifting away from the justice systems culture of complacency toward delay, or
    is their task simply to protect the
status quo
?

[47]

These
    are not merely questions of public importance raised by the Plaintiffs motion
    for leave to appeal; they are existential questions about the future viability
    of Ontarios civil justice system.

[48]

Accordingly,
    I am satisfied that the serious question raised by the Plaintiffs meets the
    threshold test on a stay motion set by
RJR-MacDonald
, applied in light
    of the
Sault Dock
principles.

V.      SECOND FACTOR: IRREPARABLE HARM

The governing principles

[49]

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.

Positions of the parties

[50]

The
    Plaintiffs submit that, having already waited two years for their April 2020
    trial date and now needing to wait another 10 months for their February 2021
    trial date, they risk losing the February date unless a stay is granted. They
    submit that this delay, without any indication as to when a civil jury trial
    could or would be held, amounts to irreparable harm for purposes of the
RJR-MacDonald
analysis.

[51]

As
    well, the Plaintiffs submit that the longer their trial is delayed, the more Ms.
    Louiss claim for income loss will be eroded by operation of ss. 267.5(1) 2.
    and 3. of the
Insurance Act
, R.S.O. 1990, c. I.8. Those provisions
    direct that 30% of all income loss suffered before the trial of the action is
    not recoverable: DC Reasons, at para. 15. The motion judge acknowledged this
    impact of delaying the trial but assigned it no weight in his analysis: at paras.
    25 and 46.

[52]

In
    response, Security National argues that neither party has an unfettered right
    to determine the mode of trial, so the selection of the mode of trial cannot
    cause irreparable harm.

[53]

TD
    Insurance advances a different argument as to why the Plaintiffs have not
    demonstrated irreparable harm, stating, at para. 28 of its factum:

As mentioned previously, the Plaintiff currently has the first
    three-week increment of a 10-week trial scheduled to proceed on February 22,
    2021, without a jury. If the stay is granted, the Plaintiff will insist that
    these trial dates will remain in place. To prevent wasting time, costs, and
    most importantly, judicial resources, the Defendants should be permitted to
    have the February 22, 2021 trial date vacated without delay, and secure a new
    trial date to proceed with a jury.

Analysis

[54]

I
    am satisfied that the Plaintiffs have demonstrated that if a stay is not
    granted, they probably will lose their February 22, 2021 trial date and the
    trial of their actions will be adjourned for an uncertain and, at present,
    incalculable length of time. As a result, they will suffer irreparable harm.

[55]

First,
    I have no doubt that if a stay is not granted there is a very high risk that
    the Plaintiffs will lose their currently scheduled trial date. Absent a stay,
    the DC Order is in effect, which means that the Defendants jury notices are in
    force. On November 18, 2020 the Ottawa Trial Management Court judge deferred consideration
    of the Defendants request to vacate the trial dates until December 16, 2020.
    It is apparent from that endorsement that if the Plaintiffs fail on this stay
    motion or on their second motion to strike the jury notices, the trial dates
    probably will be vacated.

[56]

I
    cannot assess what might happen on the Plaintiffs pending second motion to
    strike. That will be in the hands of another judge; to hazard a guess at the
    likely result would be nothing more than pure speculation on my part. Nor can I
    assess whether the other double-booked trial of TD Insurances counsel, referred
    to in Master Kaufmanns endorsement, will settle before February 22, 2021. I
    therefore can only consider the likely impact of not granting the stay motion.
    From the endorsements of Master Kaufman and Gomery J., I have no hesitation in
    concluding that if a stay is not granted, the February 22, 2021 trial dates
    most probably will be vacated.

[57]

Second,
    the Plaintiffs have demonstrated that, if the trial date is vacated, they will
    suffer non-compensable loss caused by the further deferral of the adjudication
    of the claim for loss of income. Since s. 267.5(1) of the
Insurance Act
limits the damages for income loss before the trial of the action to 70% of
    the gross income lost, that cap would continue until the trial commences on
    some uncertain, unknowable future date. The further loss caused by a postponement
    of the February 22, 2021 trial cannot by recovered by the Plaintiffs.

[58]

Third,
    in the circumstances of this case, the delay caused by a postponement of the
    trial date constitutes, in and of itself, irreparable harm. As the motion judge
    found in his reasons, and as the East Region R.S.J. confirmed in his November
    6, 2020 memorandum, there is no certainty as to when civil jury trials will
    resume in Ottawa. In my view, consigning these Plaintiffs  whose claim arose
    almost eight years ago  to trial scheduling limbo for an uncertain,
    unpredictable, and unforeseeable period of time would constitute irreparable
    harm.

[59]

In
    those circumstances, I can only repeat what I wrote in
Belton
, at
    paras. 65-66 and 78, about the significance of pandemic-created delay to any
    strike jury notice analysis:

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.

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.



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.

[60]

Those
    comments apply with equal force to the present case. Whereas in
Belton
there
    was an indication that civil jury trials might resume in 12 to 18 months, in
    the present case the East Region R.S.J.s memorandum of November 6, 2020 left
    the matter open-ended, stating that civil jury trials remain suspended until
    further notice.

[61]

Accordingly,
    I am satisfied that the Plaintiffs have demonstrated that they will suffer
    irreparable harm if a stay is not granted.

VI.     THIRD FACTOR: BALANCE OF CONVENIENCE

The governing principles

[62]

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 responding party 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.

Positions of the parties

[63]

The
    Plaintiffs argue that the balance of convenience favours them. They repeat
    their submissions on the irreparable harm factor and add that there is no identifiable
    prejudice to the Defendants arising from the actions being allowed to remain on
    the trial list for hearing by a single judge.

[64]

Security
    National submits that the Plaintiffs are not harmed by a refusal of a stay
    because the February 22, 2021 trial date has not yet been vacated. I dealt with
    that issue in paras. 55-56 above, where I concluded that if a stay is not
    granted the Plaintiffs probably will lose their scheduled trial date.

[65]

TD
    Insurance contends that the Plaintiffs ability to pursue their motion for
    leave to appeal would not be rendered moot if a stay were not granted. I accept
    that submission, but the real issue on this motion is whether the refusal to
    grant a stay would result in the Plaintiff losing its scheduled trial date.

[66]

TD
    Insurance goes on to submit, at para. 31 of its factum, that:

[The] Defendants will suffer a deprivation of their fundamental
    and substantive right to a jury trial, and will face serious prejudice if they
    are forced to proceed to trial with a judge alone, especially in light of the
    Divisional Courts decision granting the Defendants appeal.

Analysis

[67]

The
    statutory right to a civil jury trial under s. 108 of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43 is a qualified, not an absolute, statutory
    right:
Belton
(C.A.), at para. 26; DC Reasons, at para. 5. The
    Defendants reliance on the loss of their qualified statutory right to a jury
    trial as pointing the balance of convenience in their favour echoes similar
    arguments found in the decisions rendered over the past several months
    concerning motions to strike out jury notices in civil actions.

[68]

At
    present, the debate about what loss a party suffers by having its jury notice
    struck is carried out largely by resorting to labels: DC Reasons, at para. 4;
Belton
(C.A.), at para. 26;
MacLeod
, at para. 29. Cases variously
    describe the right to a jury trial under
CJA
s. 108 as fundamental,
    substantive, statutory, qualified, or procedural. Such labels add little
    precision to the analysis required where a party opposes its selection of a
    civil trial by a jury. By their nature, civil jury trials take longer than
    civil judge-alone trials and, since they take longer, the parties incur more
    legal expenses. What goes unexplained is what legitimate benefit a party
    seeking a civil jury trial obtains that it would not obtain in a trial before a
    judge alone.

[69]

As
    I stated in
Belton
, at para. 55, in the context of the irreparable
    harm analysis:

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 [defendant]
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.

[70]

In
    the present case, the Defendants are responding to the Plaintiffs effort to
    preserve a date for a trial before a judge alone. But the situation remains the
    same as that described in
Belton
 the Defendants have not explained,
    in specific functional terms, what litigation disadvantage they might suffer if
    their rights are adjudicated by an impartial and independent judge instead of
    by an impartial and independent jury.
[3]

[71]

The
    absence of evidence of such a functional litigation disadvantage, when weighed
    against the irreparable harm the Plaintiffs will suffer if the scheduled trial
    date is vacated, leads me to conclude that the balance of convenience overwhelmingly
    favours granting the requested stay.

VII.    IS IT IN THE INTERESTS OF JUSTICE TO GRANT A STAY?

[72]

I
    have concluded that all three elements of the
RJR-MacDonald
test, as
    applied in the context of the
Sault Dock
principles, favour granting 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.

[73]

The
    motor vehicle collision that gave rise to these actions occurred over seven and
    one-half years ago. This is an old action. In a civil justice system that
    professes concern about providing the public with the most expeditious
    adjudication of their civil suits on their merits, this action should have been
    tried long ago: r. 1.04(1). The parties are ready for trial and have been for
    some time. COVID-19 intervened. A creative motion judge directed a three-tranche
    judge-alone trial that would mitigate the pandemics delay. The continuation of
    the pandemic renders unknown and unpredictable when civil jury trials will
    resume in Ottawa. But, a judge-alone trial can start in just over two months. Starting
    the trial will mitigate the statutory diminution of the lost income claim. And
    the Plaintiffs have raised serious questions for an appeal that are of public
    importance.

[74]

In
    those circumstances, I have no hesitation in concluding that it is in the
    interests of justice to grant a stay of the DC Order.

VIII.   EXPEDITING THE LEAVE MOTION AND APPEAL

[75]

The
    Plaintiffs also seek an order that their motion for leave to appeal be heard
    orally
[4]
on an expedited basis, together with the appeal, along with a timetable for
    filing the required materials. TD Insurance does not oppose that request, as
    the proceedings before the Divisional Court used such an approach. Security
    National opposes the request.

[76]

I
    grant the request. The scheduled February 22, 2021 trial date drives that
    conclusion. There is not sufficient time between now and then for the
    Plaintiffs matter before this court to proceed using the normal timeline in
    the
Rules
. A motion for leave to appeal could be heard in the ordinary
    course before the trial date. But if the panel grants leave, standard appeal
    scheduling would not generate an appeal hearing before the trial date. As well,
    the issue of civil jury trial scheduling during the continuation of the
    pandemic has now been raised in several cases and may require consideration by
    this court before the pandemic ends.

[77]

Accordingly,
    I order that the motion for leave to appeal proceed on an expedited schedule
    and be heard orally at the same time and by the same panel as the appeal.

[78]

The
    details of the schedule will be discussed at a case conference with me this
    Friday, December 18, 2020. I can conduct a case conference at any time other
    than between 1:00 p.m. and 2:30 p.m. Counsel shall consult and then advise my
    assistant, Ms. Sandra Leal (s
andra.leal@ontario.ca
),
    no later than Wednesday, December 16 at 5:00 p.m., of a convenient time for the
    18
th
.

[79]

Counsel
    shall also consult before the case conference to:

(i)    identify
    at least three dates between January 18, 2021 and February 5, 2021 on which they
    would be available for a 3-hour hearing of the motion for leave and, if
    required, the appeal;

(ii)    develop
    a schedule for filing the required materials; and

(iii)   attempt
    to settle the costs of this motion.

[80]

In
    the meantime, I note that the Plaintiffs filed their notice of motion for leave
    to appeal on November 17, 2020. I order that they deliver the materials
    required to perfect their motion for leave no later than 3:00 p.m. on
    Wednesday, December 16, 2020: r. 61.03.1(6).

IX.     DISPOSITION

[81]

For
    the reasons set out above, I grant an order staying the DC Order until the date
    of the combined hearing by a panel of the motion for leave to appeal and appeal
    (if the panel entertains submissions on the appeal). I give the directions
    specified at paras. 78-80 above.

David Brown J.A.





[1]

Given the urgency of releasing these reasons, counsel will
    forgive me if I have taken summaries of the various principles of law
    applicable to this motion from my earlier stay decision in
Belton v. Spencer
,
    2020 ONCA 623. Time did not permit finding new ways to say that which has
    already been said.



[2]

The motion judge relied on similar information about the
    availability of civil jury trials in Ottawa in
Coban v. Declare
, 2020
    ONSC 5580, at paras. 2 and 31, leave to appeal refused, 2020 ONSC 7537 (Div.
    Ct.).



[3]

The motion judge noted that there was no evidence before him
    that a jury was more capable than a judge alone of making the necessary
    findings of fact in the actions: MJ Reasons, at para. 42.



[4]

Rule 61.03.1(15).


