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CIVIL PROCEDURE - Judgments and orders - Enforcement - Stay of

Tuesday, February 09, 2021 @ 6:22 AM  


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Motion by the plaintiffs for a stay of a Divisional Court order reinstating the defendants’ jury notices, pending the hearing of the plaintiffs’ motion for leave to appeal to the Court of Appeal. The actions resulted from a 2013 motor vehicle accident. But for the pandemic, the trial of both actions would have proceeded in April 2020. In September 2020, the plaintiffs’ motion to strike out the jury notice was granted due to the suspension of jury trials. A judge alone trial was then set for February 2021. The Divisional Court concluded that the motion judge had exercised his discretion to strike out the jury notices in an arbitrary fashion. The plaintiffs argued there was a serious question to be tried as to whether there was any basis for the Divisional Court to conclude that the motion judge acted arbitrarily in granting the motion to strike the jury notice and interfere with the exercise of discretion by a Superior Court judge who found that justice would be better served by striking the jury notice.

HELD: Motion allowed. The plaintiffs had 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 motion to strike the jury notice. It was very difficult to understand how the Divisional Court could conclude 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 that a general assertion of delay was not enough. The motion judge’s finding that it was unknown when or how a new jury trial might be heard was correct at the time of the motion, correct at the time of the Divisional Court hearing, and correct today. It was also very difficult to understand how the Divisional Court could conclude that the decision of the motion judge was made without information about the circumstances of the case. The serious question advanced by the Plaintiffs arguably raised an obvious misapprehension of the Divisional Court of the relevant facts and engaged a matter of public importance that this court should consider in the interest of justice. The plaintiffs demonstrated that if a stay was not granted, they would likely lose the February 2021 trial date and the trial of their actions would be adjourned for an uncertain and incalculable length of time. As a result, they would suffer irreparable harm. The defendants did not explain what litigation disadvantage they might suffer if their rights were adjudicated by an impartial and independent judge instead of by an impartial and independent jury. The absence of evidence of such a functional litigation disadvantage, when weighed against the irreparable harm the plaintiffs would suffer if the scheduled trial date was vacated, demonstrated that the balance of convenience overwhelmingly favoured granting the requested stay.

Louis v. Poitras, [2020] O.J. No. 5498, Ontario Court of Appeal, D.M. Brown J.A., December 15, 2020. Digest No. TLD-February82021003