Dharshika Pathmanathan

The defendant brought a motion to dismiss the action for delay and failure to restore it to the trial list.

The plaintiff brought a cross-motion to restore the action to the trial list.

The court found that while the plaintiff's explanation for the delay was less than stellar, it was acceptable and not contumelious.

The court also found no non-compensable prejudice to the defendant.

The plaintiff's motion to restore the action was granted, and the defendant's motion to dismiss was dismissed, though a timetable for outstanding undertakings was ordered.

Costs of $4,000 were awarded to the defendant due to the plaintiff's delay and short service.

The plaintiff moved to amend her statement of claim to reduce damages to $200,000, aiming to transfer the action to Rule 76 (simplified procedure) and strike the defendants' jury notice.

The defendants consented to the amendment but opposed the transfer and striking of the jury notice, arguing their right to a civil jury trial was a substantive right protected by transitional provisions in the Courts of Justice Act and Rules of Civil Procedure.

The court dismissed the plaintiff's motion to strike the jury notice and transfer the action to Rule 76, holding that the legislative amendments did not retrospectively eliminate the right to a jury trial for notices delivered before January 1, 2020.