



COURT OF APPEAL FOR ONTARIO

CITATION: Hunter v. King, 2022 ONCA 190

DATE: 20220307

DOCKET: C66519

Feldman, MacPherson and Lauwers
    JJ.A.

BETWEEN

Andrew Hunter

Plaintiff (Appellant)

and

Elvira
    King

Defendant (Respondent)

Robert Trenker, for the appellant

David Patton and Sandra Koljuskov, for
    the respondent

Yashoda Ranganathan, for the intervener
    Attorney General of Ontario

Heard: February 24, 2022 by video conference

On appeal from the judgment of Justice Michael
    R. Gibson of the Superior Court of Justice, dated January 14, 2019, but signed
    August 20, 2021.

Lauwers J.A.:

[1]

On March 14, 2012, the appellants vehicle was
    struck from behind by the respondents vehicle while stopped at a red light in
    Brampton. The respondent admitted liability and the issue for trial was damages
    for loss of income. The jury returned a verdict in favour of the respondent and
    did not award damages.

[2]

The notice of appeal, as amended, raised three
    grounds: the court lacked authority to send a jury selected in Brampton to a
    trial convened in Kitchener; the trial judge erred in admitting photographs of
    the damage to the appellants vehicle; and the trial judge erred in his
    instructions to the jury on the appellants pre-existing medical conditions.
The latter two grounds of appeal were later abandoned.

[3]

The appellant argues that the jury was not
    properly constituted because it was selected in Brampton for a Kitchener trial;
    accordingly, the judgment must be set aside, and a new jury trial convened.

[4]

I do not agree and would dismiss the appeal for
    the following reasons.

The Factual Context

[5]

At the beginning of the civil trial blitz in
    Central West Region on January 7, 2019, Regional Senior Judge Daley
    presided over the exit-pretrial conference for this case in Brampton. He
    advised counsel, as noted in his endorsement, that the trial may be sent to
    Orangeville or Kitchener because there might be no courtroom available in
    Brampton. Later that day Trimble J., who was responsible for jury selection for
    the trials set in that civil blitz, advised the jury panel assembled in
    Brampton that the trial of this action would start the next day in Kitchener.
    Jury selection was completed, and the trial started before Gibson J. in
    Kitchener the next day. The jurors were compensated for their mileage from
    Brampton through the Jury Transport Program funded by the Ministry of the
    Attorney General. No party at trial objected to the jury being selected from
    the Brampton panel or to the trial being conducted in Kitchener.

The Governing Principles Regarding the
    Location of a Trial

[6]

The Regional Senior Judges authority over trial
    sittings is found in three sources: s. 14
of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43; in a direction by the Chief Justice
    of the Superior Court; and in the courts inherent jurisdiction to control its
    own process.

[7]

Section 14 of the
Courts of Justice Act
provides:

14 (1) The Chief
    Justice of the Superior Court of Justice shall direct and supervise the
    sittings of the Superior Court of Justice and the assignment of its judicial
    duties.

Regional senior judges

(2) A regional senior judge of the Superior Court of Justice shall,
    subject to the authority of the Chief Justice of the Superior Court of Justice,
    exercise the powers and perform the duties of the Chief Justice in respect of
    the Superior Court of Justice in his or her region.

Delegation

(3) A regional senior judge of the Superior Court of Justice may
    delegate to a judge of the Superior Court of Justice in his or her region the
    authority to exercise specified functions.

[8]

The other two sources of the Regional Senior
    Judges authority were canvassed by Durno J. in
R.
    v. Singh
, 2018 ONSC 1532, who gave some background
    on the courtroom situation in Brampton. He stated, at para. 148:

To address the
    Brampton courtroom shortage, the Chief Justice has ordered that any proceeding
    in Brampton can be transferred from the Central West Region to Central South
    Region if it is determined by the RSJ or his or her designate that the
    proceeding cannot be held in Brampton. As has been repeatedly stated, there is
    always an overriding commitment by the Court to take all reasonable steps to
    keep as many proceedings in Brampton as possible.

[9]

Durno J. added, at para. 153, that the courts
    inherent jurisdiction also plays a role, and includes 
those
    residual powers required to permit the court to fulfil the judicial function of
    administering justice according to law in a regular, orderly and effective
    manner.
See also,
Ontario v. Criminal Lawyers'
    Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 21.

[10]

This court should not lightly second guess the
    discretionary decisions of local judges. As Hourigan J.A. observed in
Louis
    v. Poitras
, 2021 ONCA 49, 456 D.L.R. (4th) 164, at para. 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.

The Appellants Argument

[11]

The appellants jurisdictional argument rests on
    the decision of Daley R.S.J. in
Kapoor v.
    Kuzmanovski
, 2018 ONSC 4770, 31 M.V.R. (7th) 247, who
    relied on
Singh
. Daley
    R.S.J. noted his authority, at para. 62: 
Where other
    courtrooms within Central West Region are not available, the Regional Senior
    Justice for Central West Region was authorized to transfer cases to Kitchener
    in Central South Region. After quoting para. 148 of
Singh
, set out
    above, he stated:

Following Durno J.s
    decision in
Singh
, as Regional Senior Judge I have determined that
    where there is no courtroom space in Brampton for a civil jury trial,
the appropriate and lawful course is to conduct the jury
    selection in the judicial centre where the case is to be tried
. For
    example, a Brampton civil jury trial transferred to Kitchener would have the
    jury selected in Kitchener from a jury panel of Kitchener residents. Thus,
    there would be no need to look to the Jury Transport Program. This jury
    selection model will continue to apply to all civil jury cases transferred from
    Brampton whether to Kitchener or to another judicial centre in Central West
    Region. [Emphasis added.]

[12]

The appellant relies especially on the
    underlined words and submits that in
Kapoor
Daley R.S.J. made a policy
    decision under the mandate given to him by s. 14 of the
Courts of
    Justice Act
, which then became binding in all civil jury proceedings under
    his control, including this case. The appellant argues that Trimble J. had no authority
    under this policy to select a jury from the Brampton panel and then send the
    jury to Kitchener to hear this case.

The Principles Applied

[13]

I begin with the observation that there is a
    presumption of regularity in the logistical and administrative decisions made
    by local judges that should not be lightly second guessed. Although this presumption
    has been expressed in the criminal law context, in my view it applies equally
    in the civil context. In the criminal law context, see:
R. v. Kapoor
(1990), 52 C.C.C. (3d) 41 (Ont. H.C.), at p. 68,
per
Watt J. (as he
    then was), and
R. v. Parmar et al.
(1987), 61 O.R. (2d) 132 (Ont.
    H.C.),
per
Watt J., affirmed 53 C.C.C. (3d) 489 (C.A.). In the civil
    law context, see:
Eastside Pharmacy Ltd. v. British Columbia (Minister of
    Health)
, 2019 BCCA 60, 21 B.C.L.R. (6th) 1, at para. 49; Gordon D. Cudmore,
Civil Evidence Handbook
, loose-leaf, 4th ed. (Toronto: Thomson Reuters
    Canada Ltd., 2022), at para. 4-18.

[14]

I accept the view expressed in
Singh
and
Kapoor
that the optimal arrangement is that the jury is selected
    from the panel drawn from the place the trial is to be heard. But that optimal
    situation must yield to circumstantial practicalities.

[15]

Daley R.S.J. knew the limits of his authority,
    which he recited in
Kapoor
. I do not accept the interpretation placed
    upon his language in
Kapoor
by appellants counsel, that the
only
appropriate and lawful course is to conduct the
    jury selection in the judicial centre where the case is to be tried. The language
    actually used by Daley R.S.J. is not exhaustive of his lawful authority to deal
    with local circumstances.

[16]

Daley R.S.J. was fully aware of his authority to
    set policy and also to dispense with it. Because he pre-tried the case
    immediately before Trimble J. set about selecting the jury from the Brampton
    panel as part of a civil case blitz and noted that the case may be sent to
    Orangeville or Kitchener, I have no doubt that he well knew that the trial could
    happen in either Orangeville or Kitchener with a jury drawn from the Brampton jury
    panel, despite his words in
Kapoor
. In the general pandemonium around
    jury selection in a blitz, it seems highly unlikely that Daley R.S.J. did
    not know that the jury would be selected that very day from the Brampton panel.
    It was fully within the authority of Daley R.S.J. to make that decision, and Trimble
    J.s implementation decision must be presumed to fall within the terms of s.
    14(3) of the
Courts of Justice Act
.

[17]

No one is better placed to allocate local court
    resources than a Regional Senior Judge. I decline to second-guess the decision
    of Daley R.S.J. or that of Trimble J. Indeed, the fresh evidence filed by the
    Attorney General demonstrates the ongoing challenges faced by local courts in
    holding jury trials where there are space restrictions posed by pandemic
    distancing rules, although this case preceded the pandemic.

[18]

Alert to the fact that there had been no
    objection to the trial arrangements by trial counsel, making this an issue
    raised for the first time on appeal, appellants counsel framed his argument
    around the test set out by Watt J.A. in
R. v. Reid
, 2016 ONCA 524, 132
    O.R. (3d) 26, at para. 43:

A party who seeks to escape the grip of the
    general prohibition against raising issues for the first time on appeal must
    meet or satisfy three preconditions:

(i)

the evidentiary record must be sufficient to
    permit the appellate court to fully, effectively and fairly determine the issue
    raised on appeal;

(ii)

the failure to raise the issue at trial must not
    be due to tactical reasons; and

(iii)

the court must be satisfied that no miscarriage
    of justice will result from the refusal to raise the new issue on appeal.

I now turn to consider this test.

[19]

On the sufficiency of the record, counsel for
    the appellant provided no evidence on the way Central West Region implemented what
    he characterizes as the binding
Kapoor
policy in practice. The
Kapoor
decision does not appear to have been widely disseminated and the issue was
obiter
in the case itself. Trial counsel were unaware of it and only raised this
    concern after learning of
Kapoor
, well after the trial. No Practice Direction
    was issued per r. 1.07(4) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. The appellant provided no evidence on whether the policy was
    honoured ever, sometimes, or all the time, and when and why there were
    departures from it. In these circumstances, I would rely on the presumption of
    regularity.

[20]

The second element concerns counsels failure to
    make an objection at trial for tactical reasons. I accept that trial counsel
    did not object because they were not aware of the
Kapoor
decision
    until several months later when the second notice of appeal was filed on July
    15, 2019. However, there is no evidence that the appellant suffered any
    prejudice from the procedure that occurred.

[21]

The appellant emphasizes the third element of
    the test. He argues that there was a miscarriage of justice because the lack of
    jurisdiction meant that justice would not appear to have been done in view of
    the
Kapoor
ruling. I would reject the argument. The trial of a
    Brampton action about an accident that occurred in Brampton by a jury selected
    from the Brampton panel and not from a Kitchener panel would not be seen by a
    reasonable person as a miscarriage of justice. The only practical negative effect
    of the trial location in Kitchener that counsel could muster on questioning was
    that some of the jurors, perhaps not all, might have had a longer commute to
    the court. This is no basis for declaring a miscarriage of justice.

[22]

The argument made by appellants counsel is technical,
    and is rooted in this courts decision in
Letourneau v. Ottawa Bronson
    Construction Ltd. et al
., [1970] 1 O.R. 24. The case stands for the
    proposition that where a civil jury is constituted in breach of the
Jurors
    Act
, R.S.O. 1960, c.199, the trial is a nullity even if it proceeds
    without objection. This seems axiomatic, but appellants counsels use of
Letourneau
in this case presupposes that Daley R.S.J.s decision in
Kapoor
has
    similar force. As I noted earlier, it does not.

[23]

The Attorney General, as intervener,
[1]
raised an argument about this courts jurisdiction to hear the
    appeal, which the panel dismissed summarily. Counsel argued that an order
    transferring the trial of an action from one location to another is not final
    but interlocutory and, therefore, leave to appeal on that issue should have
    been sought from the Divisional Court under s. 19 of the
Courts of Justice Act.
I would not
    agree. Any rulings in the course of a trial process leading to a judgment merge
    in the final judgment and are fully within this courts jurisdiction: see

Bonello v. Gores Landing Marina (1986) Ltd.
, 2017 ONCA 632, at para. 14.

Disposition

[24]

I would dismiss the appeal with costs payable by
    the appellant to the respondent in the agreed amount of $5,000 plus
    disbursements and H.S.T.

Released: March 7, 2022 K.F.

P.
    Lauwers J.A.

I
    agree. K. Feldman J.A.

I
    agree. J.C. MacPherson J.A.





[1]

Strathy C.J.O. issued an order granting the
    Attorney General intervener status.


