Deanna M. Stea

In an occupier's liability action outstanding for over 11 years, the plaintiff moved to strike the defendants' jury notice, arguing that delay alone constituted prejudice.

The defendants opposed, asserting the motion was premature given the reopening of the economy and recent jury trials.

The court acknowledged the significant delay but noted the plaintiff's lack of affidavit evidence on prejudice.

Balancing the interests, the court provisionally struck the jury notice until February 21, 2022, to await clarity on the resumption of in-person hearings, emphasizing that the personal circumstances of counsel do not override a party's substantive right to a jury trial.

The applicant client disputed the terms of retainer with his former law firm, contending a contingency fee agreement (20-25%) while the solicitors claimed an hourly rate ($600/hour).

The court found that the solicitors failed to meet the heavy onus to prove the hourly rate agreement, given the lack of a written retainer and the client's understanding.

The court concluded that the client was retained on a contingency fee basis of 25% plus HST and disbursements.