Court of Appeal encourages bench to prioritize efficiency in backlogged civil justice system: lawyer

The Court of Appeal’s restoration of a COVID-delay-related order to strike a jury notice is a signal to lower courts that, amid the current case backlog, creativity and efficiency in delivering timely justice should be encouraged, says Joseph Obagi, who acted for the plaintiffs in the case.

Louis v. Poitras, 2021 ONCA 49 represents another “seismic shift” in the approach to civil justice, says Obagi. In 2014, in the Supreme Court of Canada case Hryniak v. Mauldin, the Court said a “shift in culture” was required to preserve the civil justice system, which was plagued by delay. Writing for the panel in Louis v. Poitras, Justice William Hourigan said the decision to strike the jury notices and allow the matter to proceed in three-week tranches was the type of creativity called for in Hryniak.

“The importance of this decision… is that it gives the Superior Court judges the signal that efficiency in delivering justice is the priority,” says Obagi.

“It’s like the old adage, ‘justice delayed is justice denied.’ And I think that's what this case really embraces,” he says. “… And that's why justice Horrigan quotes from Rule One of our Rules of Civil Procedure, which is that all of the rules are intended to ensure that a case is tried in the most just and efficient manner possible. Because that's all we're doing in the civil justice system; resolving a dispute.”

Obagi's clients' claims are for injuries arising from a motor vehicle collision in May 2013 in Ottawa. They brought actions for tort and accident benefits against the defendants: Jacques Poitras, TD Insurance Meloche Monnex and Security National Insurance Company. The defendants filed jury notices and the cases were to be heard together in a trial beginning April 20, 2020.

COVID intervened and the trial date was lost. While jury trials were not being scheduled in Ottawa, judge-alone trials were available with a six-month wait. In July, the plaintiffs sought an order striking the jury notices. The motion judge granted the order and scheduled the trial for Feb. 2021, to proceed in three-week tranches.

The defendants appealed to the Divisional Court, which reinstated the jury notices, having found the order to strike them arbitrary. In the Court’s view, there was not sufficient evidence the delay which called for the order had prejudiced either party.

The plaintiffs moved to stay the Divisional Court’s decision, pending appeal. In granting the stay, Court of Appeal Justice David Brown noted that pandemic-related delay in the scheduling of civil jury trials had been raised in several other cases. Brown expedited the appeal.

The matter then went before Court of Appeal Justices William Hourigan, David Watt and Peter Lauwers on Jan. 20. The Court set aside the Divisional Court’s order, allowed the appeal and restored the motion judge’s order.

Writing for the panel, Hourigan said the motion judge – Superior Court Justice Robert Beaudoin – “turned his mind to local conditions” and “undertook a detailed analysis of Ottawa's situation.”

At the time of the motion, the court had given formal notice to the bar that civil jury trials would not happen until six months later, at the earliest. Few courtrooms had been equipped with plexiglass dividers and there was no final plan to accommodate jury trials. In granting the motion to strike the jury notice and proceed judge-alone in three-week tranches, Beaudoin’s “creativity should have been the subject of approbation, not condemnation,” said Hourigan.