Ontario Court of Appeal encourages pragmatic solutions to COVID-19 delays
February 3, 2021
Louis v. Poitras, 2021 ONCA 49, is the first Ontario Court of Appeal decision to consider the impact of delays caused by the pandemic on a motion to strike a jury notice. The decision calls on lower courts to adopt a creative and pragmatic approach to this unprecedented challenge to the civil justice system in order to minimize delays and ensure timely access to justice.
The appellants were involved in a motor vehicle collision in Ottawa on May 9, 2013. Jury notices were filed by defendants in two related actions, which were ordered to be tried together in a 10-week jury trial commencing in April 2020. This trial date was lost due to the ongoing COVID-19 pandemic. In July 2020, the plaintiffs moved for an order striking the jury notices in both actions. At the time of this motion, civil jury trials were not being scheduled in Ottawa.
The motions judge granted the plaintiffs’ motion, ordering the action to proceed to a judge alone-trial in three-week tranches due to the uncertainty surrounding the availability of civil jury trials in Ottawa during the pandemic.
The defendants appealed the motion judge’s order to the Divisional Court, which allowed the appeal and reinstated the jury notices. The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it was attributed solely to the presence of delay but lacked sufficient evidence of actual prejudice to the parties.
The Ontario Court of Appeal then granted the plaintiff’s motion to stay the Divisional Court’s order pending appeal, finding strong grounds to suggest the Divisional Court misapprehended relevant facts and that the appeal raised issues of central importance with regards to pandemic-induced delays affecting civil jury trials.
Justice Hourigan characterized the Divisional Court’s reasons and the motion judge’s reasons as “ships passing in the night” in allowing the plaintiff’s appeal and restoring the motion judge’s order. In reviewing the Divisional Court’s reasons, Justice Hourigan emphasized that appellate courts must accord deference to local judges who are best positioned to understand the availability of judicial resources and the appropriate approach in the circumstances of a given case, and that deference is particularly warranted during the crisis the civil justice system is presently facing.
Holding that the Divisional Court’s reasons reflected a “fundamental misunderstanding” of the role of appellate courts in considering appeals from orders to strike jury notices, Justice Hourigan disagreed with the Divisional Court’s finding that delay alone was insufficient reason to strike the jury notice. The accident giving rise to the action occurred over seven years ago, and at the time of the motion there was no indication of when a civil jury trial might be held in Ottawa. Accordingly, the motion judge was entitled to find that real and substantial prejudice arose simply by reason of delay.
Further, Justice Hourigan took issue with the Divisional Court’s attempt to attack the sufficiency of the motion judge’s reasons by distinguishing it from contemporaneous decisions regarding striking jury notices in which more fulsome reasons were given. One such case was Higashi v. Chiarot, another Ottawa case released eight days before the motion judge’s reasons. The Divisional Court stated that in contrast to the motion judge’s decision, the decision to strike the jury notice in Higashi was not arbitrary because the motion judge in that case made inquiries of the Regional Senior Judge, court staff, and the judge in charge of civil litigation in Ottawa regarding the status of the civil list.
Given that Higashi was released a mere eight days earlier, Justice Hourigan held that the motion judge was entitled to rely on the information from Higashi regarding the status of the availability of civil jury trials in Ottawa to form a sufficient basis for his own reasons. Moreover, Justice Hourigan noted that the motion judge had in fact made observations and inquiries of his own – for instance, only a limited number of Ottawa courtrooms had been retrofitted with Plexiglas dividers and no plan had been finalized to accommodate jury trials at the time of the motion – which the Divisional Court had failed to properly analyze.
In sum, Justice Hourigan held that the Divisional Court’s analysis was “deeply flawed” and set the bar regarding what constitutes an arbitrary decision at a “dangerously low level” that could be easily utilized to strip a motion judge of their discretion.
This is the latest decision to join the chorus of judicial voices calling for a cultural shift in the civil system to allow for timely justice. The Court of Appeal condemned the Divisional Court’s interference with the motion judge’s practical and localized approach to ensuring timely service, stating that it is “precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak.”
The immediate takeaway from this decision is that delay in obtaining a date for a civil trial can, by itself, justify striking out a jury. However, in a broader sense this decision is a direction to lower courts to fashion creative solutions to reduce delays, and a direction to appellate courts to refrain from interfering with pragmatic responses to local conditions that promote timely justice.
 Higashi v. Chiarot, 2020 ONSC 5523.
Authored by Elie Waitzer, Articling Student