Frank Del Giudice

The plaintiff brought an urgent motion for leave to strike the defendant's jury notice in a motor vehicle action that was approaching its tenth year.

Due to the COVID-19 pandemic, civil jury trials in Toronto Region had been largely suspended, making the scheduled 20-day jury trial on February 22, 2021, impossible.

The court granted leave and struck the jury notice, finding that the plaintiff demonstrated sufficient prejudice from further delay, including wasted costs, loss of witness availability, and financial detriment under the Insurance Act.

The court emphasized that timely access to justice, especially for an old case, outweighed the defendant's right to a jury trial, which is not absolute, and that a "wait and see" approach was not appropriate given the uncertainty of future jury sittings.

Following a motor vehicle collision, a jury awarded the plaintiff $10,000 in general damages and $14,000 for past loss of income.

The defendant brought a threshold motion arguing the plaintiff's soft tissue injuries did not meet the verbal threshold under section 267.5(5) of the Insurance Act.

The court reviewed the medical evidence, including surveillance showing the plaintiff conducting fitness sessions, and concluded the plaintiff failed to prove she sustained a permanent impairment of a physical, mental, or psychological function.

The claim for general damages was dismissed.

Following dismissal of the plaintiff’s motion to set aside an order dismissing the action, the court addressed the defendants’ claim for costs.

The defendants sought over $27,000 in legal fees and additional disbursements, relying on extensive work performed by multiple lawyers, clerks, and students.

The court accepted that the motion’s outcome was predictable and found the staffing and hours claimed by the defendants excessive given the straightforward nature of the motion.

While acknowledging that law firms may allocate work among multiple professionals, the court held that the losing party should not bear the costs of training junior counsel.

Costs were fixed at $13,000 payable by the plaintiff.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside an order dismissing the action for failure to comply with discovery undertakings and prior costs orders.

The dismissal had been obtained without notice pursuant to a prior court order permitting the defendants to move if compliance was not achieved.

The court held the motion was not brought forthwith after the order came to the plaintiff’s attention and that no reasonable explanation was provided for the continued failure to complete undertakings or pay costs despite multiple extensions.

The court also found the defendants had experienced prejudice due to outstanding discovery obligations affecting their ability to defend the claim.

The request to set aside the dismissal and extend compliance was therefore refused.

The parties jointly sought a modification to an existing timetable set out in a prior endorsement regarding the delivery of factums.

The court accepted the parties’ agreement to extend the plaintiff’s deadline for serving a factum and the defendant’s corresponding deadline.

The court ordered the revised timetable and directed that, once factums are delivered, counsel arrange a conference call with the court to schedule a date for oral argument.