Court issues ‘real-world ruling’ in appeal of civil jury decision

Personal Injury /
M. Steven Rastin
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By Tony Poland, LegalMatters Staff • The Ontario Court of Appeal’s forceful restoration of an order to strike civil jury notices comes at a crucial time for the justice system, says Barrie-area litigator Steve Rastin.

Rastin, managing partner at Rastin Gluckstein, says the decision in Louis v. Poitras is essentially a rebuke of a Divisional Court ruling that set aside a motion to strike the jury notices in a case dealing with a 2013 automobile accident claim. 

Court was told that the matter was scheduled to be heard before a jury last April. However, the 10-week trial was put off due to the COVID-19 pandemic. In July, a motion judge allowed the plaintiff’s request to strike the jury and a trial was scheduled to begin this month.

Upon appeal, 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.”

However, the Court of Appeal (COA) ruled Divisional Court “erred in its analysis” and restored the motion judge’s order.

‘Should be commended’

“The Court of Appeal should be commended for showing the leadership to render such a strongly worded decision. This is a real-world ruling dealing with real-world problems faced by civil plaintiffs in the age of COVID,” Rastin tells LegalMattersCanada.ca. “I applaud the Court for having the leadership to try and address those problems. This decision is an attempt to modernize the courts. It talks about how to respond to the circumstances we now face.”

Writing on behalf of the COA, Justice C. William Hourigan acknowledged the “civil justice system in Ontario faces an unprecedented crisis.”

“Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution,” he writes. “Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. 

“In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials,” Hourigan adds. “Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.”

Rastin says cases are piling up with social distancing putting a halt to civil jury trials. He says cases should be allowed to proceed by judge alone but insurance companies insist on juries and “they’re quite willing to let the wheels of justice grind to a halt and make people wait for years” for their day in court.

Rastin explains the delays can be advantageous to insurers.

‘Substandard offers’

“I am not alone in facing pressure from insurance companies who make substandard offers on files and then say, ‘If you’re not satisfied, we can wait two years until it comes to trial,’” he explains.

“Insurance companies talk about this substantive right to a jury but it’s important to remember that jury trials in civil cases are very rare in Canada.” 

Lengthy delays further victimize those who have been injured in accidents and who need financial settlements to get on with their lives, he says.

In Louis v. Poitras, the motion judge found a “real and substantial prejudice arises simply by reason of delay.” The COA agreed, writing, “This case neatly captures the competing approaches to the crisis faced by the civil justice system.”

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

In that case, the Supreme Court states that “our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised. “

“However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result,” the judgment reads. “A shift in culture is required. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”

Right to a timely trial

Rastin says the right to a trial in a timely manner cannot be overstated.

“You need to consider the administration of justice. You also need to look to the prejudice that results just by delay and you also need to look at the world we are living in today,” he notes. 

Rastin says “the interesting thing about Louis v. Poitras case is just how strongly the Ontario Court of Appeal took Divisional Court to task.”

The COA found the analysis in the lower court decision “shows an obvious misapprehension of the relevant facts.”

“The details of these patent errors will be considered in the analysis of the merits of the proposed appeal. For the purposes of the motion for leave to appeal, I note that the Divisional Court made an obvious error in concluding that the motion judge made his decision without regard to evidence of the local conditions as they impacted these actions,” Hourigan writes.

Rastin, who was not involved in the case and comments generally, says what the COA is “saying in the strongest terms is you have to look at the broader interests of justice.”

He says the decision is essential at a time when the justice system continues to struggle with the pandemic.

“Our courts were already overburdened before COVID. If we don’t change the way we are doing things we are going to fall even further behind,” Rastin says. “This ruling at least offers a road forward to potentially catching up.”