As the Court of Appeal for Ontario recently confirmed in Louis v. Poitras, 2021 ONCA 49, discretionary case management orders attract deference on appeal. The Court of Appeal restored an order striking jury notices that the Divisional Court had reversed as "arbitrary". The Court of Appeal granted leave to appeal, and allowed the appeal, holding that "guidance is necessary for intermediate courts of appeal to remind them of the minimal role they play in reviewing discretionary case management decisions." Justice Hourigan's decision for the Court of Appeal provides a useful reminder that deference does not involve "second guessing" discretionary orders.
Louis reflects the pressures on the administration of justice arising from the COVID-19 pandemic. The two underlying civil actions were scheduled to be heard together in a 10-week jury trial in Ottawa commencing April 2020. This clearly did not happen owing to the pandemic crisis.
As the courts were gradually re-opening over the summer of 2020, the plaintiff moved to strike the jury notices. At the time, civil jury trials were not being scheduled in Ottawa, but judge-alone trials of up to three weeks were being scheduled. The motion judge accordingly struck the jury notices and ordered the trials to proceed in three-week tranches beginning in February 2021.
The Divisional Court restored the jury notices on appeal. According to the Divisional Court, the motion judge's decision was arbitrary as there was insufficient evidence of actual prejudice to the parties. The motion judge based his decision "solely [on] the presence of delay 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" (Div. Ct., para. 2).
Standard of review of decision to strike jury notice
The decision to strike a jury notice is discretionary. Motion judges are entitled to consider local conditions impacting the availability of juries, particularly in the context of a pandemic where "[t]here is no single province wide answer to the problems we face in delivering timely civil justice" (ONCA, para. 3). Motion and trial judges are aware of the local conditions and are best placed to exercise their case management discretion to appropriately respond to those conditions. As such, appellate courts "should not lightly second guess those discretionary decisions" (ibid.).
The Court of Appeal emphasized that it is "only in rare situations that an appellate court should overrule discretionary case management decision" (ONCA, para. 4). In the context of decisions to strike jury notices, the appellate court has a "very limited scope of review" (para. 18). Appellate interference should be limited to rare cases where the discretion to strike was "exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law" (ibid.). Absent this, the appellate court must respect the trial judge's decision regarding whether to strike a jury notice.
Justice Hourigan wrote as follows for the panel:
 Given the Divisional Court's reasoning in this case, the admonition from this court in [Cowles v. Balac, (2006) 83 O.R. (3d) 660 (C.A.)] regarding deference bears repeating. The court warned that "an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be for that of the lower court. Interference is only justified when the lower court is shown to have committed the type of error referred to in [Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.) – i.e., where the decision to strike was "exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law"].
In Louis, the motion judge's decision to strike the jury notice was neither arbitrary nor capricious nor based on an incorrect principle of law. Rather, the motion judge exercised his discretion cognizant of the local conditions in Ottawa, including the lack of available resources for a civil jury trial within the foreseeable future. The Divisional Court erred by "second-guessing the local court's discretionary case management decisions under the pretext of an arbitrariness analysis."
Moving forward, Louis sends the strong message that motion and trial judges should have the flexibility to adopt appropriate case management solutions to respond to their local conditions. That applies particularly to the pandemic, but the principles should endure once normality returns. Appellate courts should only rarely and minimally interfere with discretionary case management.
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