Nikore et al. v. Proper et al. [Indexed as: Nikore v. Proper]
101 O.R. (3d) 469
2010 ONSC 2307
Ontario Superior Court of Justice,
Divisional Court,
Greer, Molloy and MacKinnon JJ.
April 27, 2010
Civil procedure -- Jury notice -- Key factors to take into account in determining whether to permit service of jury notice after close of pleadings being circumstances of delay and whether there is prejudice to other side -- Prejudice not presumed upon completion of discoveries -- Plaintiffs not initially serving jury notice because municipality was named defendant -- Pleadings closed when municipality was released -- Plaintiffs' motion for leave to serve jury notice not brought for another two years due to inadvertence of counsel -- Defendants not prejudiced by delay -- Trial judge identifying and applying correct test in deciding to grant leave to file jury notice -- Defendants' appeal dismissed.
As one of the named defendants in the plaintiffs' negligence action was a municipality, a jury notice could not be delivered. The municipality was released on consent in May 2007. By that time, the pleadings had closed. In August 2009, the plaintiffs brought a motion for leave to file a jury notice. The motion was granted. The defendants appealed.
Held, the appeal should be dismissed.
There are two key factors that must be taken into account in determining whether to permit the service of a jury notice after the close of pleadings: (1) the circumstances of the delay; and (2) whether there is prejudice to the other side. The test remains the same throughout, although the greater the delay and the more preparation that is done, the greater the likelihood that leave will be denied. There is no presumption of prejudice. In particular, prejudice is not presumed upon the completion of discoveries. The trial judge noted that the matter could not be tried by a jury until the municipality was released in mid-2007 and accepted that the delay after that time was due to the inadvertence of counsel. [page470] She discounted the relevance of the defendants' evidence that a jury trial would be longer and more costly on the grounds that that was not prejudice caused by the delay, but rather was a feature of every jury trial and would have existed even if the jury notice had been delivered at the begin ning of the action. She made a specific finding that the trial would not be delayed as a result of switching to a jury trial. She also found that trial preparation had not begun in earnest and that there was no evidence that the defence would have been conducted any differently had the jury notice been served earlier. She found that the delay was not unconscionable and that there was no real prejudice to the defendants. She correctly identified and applied the legal test for granting leave, and her exercise of discretion in deciding to grant leave was entitled to deference.
APPEAL from the decision of J.M. Wilson J, [2009] O.J. No. 3685 (S.C.J.) granting leave to file a jury notice after the close of pleadings.
Cases referred to
Dunn v. Bederman, [1999] O.J. No. 3231, 104 O.T.C. 157, 91 A.C.W.S. (3d) 45 (S.C.J.); Jackson v. Hautala (1983), 1983 1974 (ON SC), 42 O.R. (2d) 153, [1983] O.J. No. 3063, 35 C.P.C. 108, 20 A.C.W.S. (2d) 212 (Div. Ct.); Markakis v. Conklin Group Inc., [2007] O.J. No. 5265 (S.C.J.); Paskie (Litigation Guardian of) v. Canadian Amateur Boxing Assn. (1999), 1999 19926 (ON SCDC), 45 O.R. (3d) 765, [1999] O.J. No. 3264, 126 O.A.C. 244, 90 A.C.W.S. (3d) 853 (Div. Ct.); Rodic v. Centre of Addiction and Mental Health, [2001] O.J. No. 2000, [2001] O.T.C. 393, 105 A.C.W.S. (3d) 828 (S.C.J.); Safi v. Doctor's Hospital, [1999] O.J. No. 283, 85 O.T.C. 392, 85 A.C.W.S. (3d) 782 (Gen. Div.); Vataner v. Rossi, [1991] O.J. No. 3449, 2 C.P.C. (3d) 156, 34 A.C.W.S. (3d) 1212 (Gen. Div.), consd
Other cases referred to
Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, 151 D.L.R. (4th) 119, 218 N.R. 81, J.E. 97-1836, 1 Admin. L.R. (3d) 1, 118 C.C.C. (3d) 443, 14 C.P.C. (4th) 1, 10 C.R. (5th) 163, 40 Imm. L.R. (2d) 23, 74 A.C.W.S. (3d) 52, REJB 1997-02452; Doe v. Bragg, [2005] O.J. No. 3932, 19 C.P.C. (6th) 224, 142 A.C.W.S. (3d) 579 (S.C.J.); Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, [1989] S.C.J. No. 48, 59 D.L.R. (4th) 591, 96 N.R. 165, [1989] 5 W.W.R. 193, J.E. 89-816, 37 B.C.L.R. (2d) 145, 20 R.F.L. (3d) 225, 15 A.C.W.S. (3d) 210; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, [1987] S.C.J. No. 6, 38 D.L.R. (4th) 321, 73 N.R. 341, [1987] 3 W.W.R. 1, J.E. 87-396, 46 Man. R. (2d) 241, 25 Admin. L.R. 20, 87 CLLC Â14,015 at 12109, 18 C.P.C. (2d) 273, 3 A.C.W.S. (3d) 390, EYB 1987-67148; Mohajer Estate v. Frappier Group Inc., [1998] O.J. No. 2004, 67 O.T.C. 207, 79 A.C.W.S. (3d) 700 (Gen. Div.); R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 190 D.L.R. (4th) 257, 259 N.R. 227, J.E. 2000-1846, 187 N.S.R. (2d) 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129, 47 W.C.B. (2d) 247
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3
Shawn Stringer, for appellants. Derek Ballard, for respondents. [page471]
The judgment of the court was delivered by
MOLLOY J.: --
A. Introduction
[1] This is an appeal from the decision of Wilson J. dated September 4, 2009 [[2009] O.J. No. 3685 (S.C.J.)], granting leave to the plaintiffs to file a jury notice after the close of pleadings.
[2] On November 22, 2002, a tragic house fire in Brantford claimed the lives of Susan Proper and two of her children, Jason and Emily. A third child, Ashley, was seriously injured in the fire. The plaintiff Edward Proper was the husband of Susan and is the father of her three children.
[3] This action was commenced in November 2004. The plaintiffs are Edward Proper, his daughter Ashley and various other members of the family who claim damages under the Family Law Act, R.S.O. 1990, c. F.3. The defendants Veena and Vinay Nikore (the "landlords") are the owners of the subject house and had leased it to the Propers. The statement of claim alleges that the landlords were negligent in failing to provide adequate heating such that the tenants were obliged to use space heaters, which resulted in the fire. In addition, it is alleged that the defendants failed to provide proper or working smoke/fire detectors and that the house was a safety hazard.
[4] Initially, the City of Brantford was named as a defendant in the action, but was released on consent by order dated May 7, 2007.
[5] The trial was scheduled to proceed in Toronto, without a jury, on October 5, 2009, with an estimate of two to three weeks' trial time.
[6] On July 15, 2009, counsel for the plaintiffs gave notice of his intent to seek leave to change the venue of the trial to Brantford and to file a jury notice.
[7] The motion was argued before Wilson J. on August 27, 2009. The motion judge made her ruling on September 3, 2009, dismissing the motion for the change of venue, but permitting the filing of the jury notice. Her written reasons for that decision were delivered the next day. No appeal has been brought from the change of venue decision.
[8] Leave to appeal from the decision with respect to the jury notice was granted by Karakatsanis J. on December 16, 2009, based on conflicting lower court decisions as to the test to be applied, the absence of any appellate level decisions on point and the desirability of providing guidance on a matter of general importance to the public. [page472]
B. Nature of the Issue and Standard of Review
[9] A party is entitled to deliver a jury notice at any time prior to the close of pleadings, provided there is no statutory provision forbidding a jury trial. After pleadings are closed, a jury notice can only be delivered with leave of the court.
[10] In this case, a jury notice could not be delivered initially due to the City of Brantford being a named defendant. By the time the City was released from the action, the pleadings had closed. Therefore, leave was required.
[11] The legal test to be applied in considering whether to grant leave to file a jury notice is a question of law and is subject to a correctness standard of review. [^1] Accordingly, the motion judge was required to be correct in identifying and applying the legal test for granting leave.
[12] However, whether or not to grant leave in any given situation is an exercise of discretion. An appellate court will not lightly interfere with a judge's exercise of discretion, and will do so only if the judge "misdirects himself or if his decision is so clearly wrong as to amount to an injustice". [^2] A disagreement with the motion judge regarding the weight to be given various pieces of evidence is not grounds for interfering, provided the motion judge considered the relevant factors. [^3] Further, the reviewing court is not entitled to substitute its own discretion for that of the motion judge. [^4]
C. Background Facts
[13] It is useful to set out a chronology of the key events in the litigation: -- November 19, 2004: statement of claim is delivered -- April 28, 2006: pleadings are closed -- May 24, 2006: examinations for discovery begin, but are not completed [page473] -- February 26, 2007: plaintiffs' counsel files trial record -- May 7, 2007: on consent, action is dismissed as against City of Brantford -- September 19, 2007: plaintiffs' counsel files certification form to obtain pre-trial and trial dates -- January 11, 2008: defendant completes examinations for discoveries -- May 13, 2008: counsel confer with each other and the trial coordinator with respect to available dates; in due course, pre-trial set for September 4, 2009 and trial scheduled on long trial list non-jury for two-three weeks to commence October 5, 2009 -- July 22, 2008: mediation conducted -- July 15, 2009: plaintiffs' counsel advises defence counsel of intention to seek change of venue and leave to serve jury notice -- September 3, 2009: motion argued before Wilson J.
[14] The plaintiffs' solicitor filed an affidavit on the motion stating that a jury notice was initially inappropriate only because of the presence of the City of Brantford as a defendant. He stated that when the action became appropriate for a jury upon the release of the City from the action, it was "through inadvertence that a Jury Notice was not filed in consideration of the changed circumstances".
[15] In response, the defence filed a solicitor's affidavit stating that she believed the defendants "would suffer prejudice if the time to delivery [sic] the Jury Notice is extended, including the fact that a Jury trial would take significantly longer than trial with judge alone and accordingly would be significantly more costly".
D. Legal Test for Granting Leave
[16] The appellants submit that the test to be applied is as set forth in the decision of Master Clark in Dunn v. Bederman. [^5] In that case, the Master accepted that the plaintiff had always [page474] been under the understanding that there would be a jury trial and that the sole reason the jury notice had not been delivered was the inadvertence of his lawyer. However, examinations had already been completed by the time the solicitor discovered the error. The Master referred to Mohajer Estate v. Frappier Group Inc., [^6] in which Master Beaudoin considered the "point in time" when a jury notice was delivered as being relevant to a consideration of unconscionable delay. Master Clark then determined that this was also a useful concept when considering the issue of prejudice, holding, at para. 14:
In the view that I take, a motion to deliver a jury notice after discoveries have been substantially completed, will in the absence of exceptional circumstances, always prejudice the opposite party.
[17] Counsel for the appellant cited a number of cases, [^7] which he asserts have followed the test in Dunn v. Bederman, and submitted that there are no reported cases to the contrary. I do not read those cases as having specifically adopted the completion of discoveries as a point beyond which prejudice is presumed. In Vataner v. Rossi, Master Peterson refused to permit the filing of a jury notice after examinations for discovery had been completed. However, he found that it was the discoveries themselves that caused the defendant's solicitor to conclude that the credibility of the plaintiffs would be a significant issue at trial and that a jury would therefore be preferable. The Master found [at para. 9] these circumstances to constitute "unconscionable and unjustifiable delay" but made no determination about prejudice. In Rodic v. Centre of Addiction and Mental Health, Master MacLeod referred to the completion of discoveries as being treated in the case law as somewhat of a "watershed" in determining unconscionable delay or prejudice, but did not adopt that point in time as being determinative of prejudice. In Markakis v. Conklin Group, Pomerance J. held that an unexplained delay of five years in filing a jury notice was unconscionable even in the absence of prejudice, but also found that there was prejudice because counsel for the plaintiff had consistently prepared on the basis that the matter would proceed as a non-jury trial. The completion of discoveries is mentioned as a factor, but not held to be determinative. [page475]
[18] It may well be the case that there are no reported cases in which leave to deliver a jury notice was granted after discoveries had been completed, but that does not mean that prejudice is presumed upon the completion of discoveries. In my view, there is no legal basis to support a different test for late delivery of a jury notice after the completion of discoveries, or at any other arbitrary point in time. The test remains the same throughout, although the greater the delay and the more preparation that is done, the greater the likelihood that leave will be denied.
[19] Before defining the test to be applied, it is useful to consider the case law that was well-recognized before Dunn v. Bederman. As a starting point, it must be recognized that the right to a trial by jury is an important right and one that will not be denied without cogent reason. [^8] Many of the cases refer to three requirements to justify exercising a discretion to extend the time for delivery of a jury notice: (i) the failure to deliver was inadvertent; (ii) the delay is not unconscionable; and (iii) there is not real prejudice to the other party. However, the lines are often blurred between these three factors. In particular, in my view, it is not strictly necessary for the moving party to show inadvertence of counsel, but the reasons for the delay may be a relevant factor in determining whether a delay is unconscionable. In essence, there are two factors to be considered: the nature of the delay (including the length of the delay and the reasons for it); and whether granting leave would re sult in prejudice to the other side.
[20] In Jackson v. Hautala, a motion judge refused to extend the time for delivery of a jury notice even though no prejudice had been shown, holding that there was an onus on the party seeking leave to demonstrate some proper grounds for the exercise of the court's discretion, beyond a mere change of heart by counsel. Leave to appeal to the Divisional Court was granted based on this decision being inconsistent with a line of other authority. The Divisional Court found that the motion judge had erred in law by imposing such an obligation on the moving party and held that "the time should be extended unless there has been unconscionable delay in applying or the opposite parties are likely to be prejudiced". [^9] In that case, the action had not yet been set down for trial and no certificate of readiness had been filed. There is no mention of discoveries. [page476]
[21] The requirement of prejudice was central to the Divisional Court's decision in Paskie v. Canadian Amateur Boxing. [^10] In that case, four years after the close of pleadings, the plaintiff retained new counsel who sought to deliver a jury notice. The Master found the delay was not unconscionable in all the circumstances and that there was no prejudice to the defendants and therefore granted leave. The discoveries had been started, but were not complete, and the action had not been set down for trial. The majority of the Divisional Court panel (Coo and Cusinato JJ.) upheld the Master's decision, confirming that in the absence of unconscionable delay or prejudice to the other side, it was an appropriate exercise of discretion to grant leave. There was a vigorous dissent from Ferguson J., who felt it was time to depart from the previous authorities, including Jackson v. Hautala. Ferguson J. would have imposed an entirely new test in which prejudice to the opposing side was not a relevant f actor and leave would only be granted if there has been a fundamental change in the character of the action or where the only reason the notice was not filed prior to the close of pleadings was because of the inadvertence of counsel. This would be subject to the caveat that leave would still not be granted if the action was on the trial list, as this would delay the trial. The majority of the court, however, did not adopt that view. The test remained as before with unconscionable delay or prejudice to the other side being the determining factors.
[22] One obvious basis upon which prejudice may be found is where late delivery of a jury notice may result in delaying a trial. Obviously, the closer one is to the trial date, the greater will be the risk of trial delay. However, prejudice can arise in many other ways, particularly where decisions have been taken and trial preparations advanced on the understanding that there would not be a jury. Master MacLeod elaborated on this point in Rodic v. Centre for Addiction and Mental Health [^11] as follows (at para. 8):
There is no question that it would be unfair to permit a party to lull the other into the assumption of a non-jury trial and then to unexpectedly change the ground rules by demanding a jury trial. A jury trial is more lengthy and expensive and may require a different approach to the presentation of evidence and advocacy than a trial by judge alone. At some point in the proceeding, there will be strategic decisions taken that can not easily be undone. Too much can be made of this in a system which regards one of its [page477] purposes the search for the truth and the determination of cases on their merits. The rules, however, are not to be interpreted to allow either party a procedural advantage. It is for this reason that discovery has been seen as a watershed and a review of the case law demonstrated that jury notices served after discovery have almost universally been struck on the basis of unconscionable delay or severe prejudice.
[23] In another decision on this issue, Safi v. Doctor's Hospital, [^12] Master MacLeod granted the plaintiff leave to file a jury notice based on a determination that there was no prejudice to the defendants beyond what would be the case if the jury notice had been served in time. In that case, examinations for discovery of the defendants had been completed and one day of examination of the plaintiff had been completed when counsel for the plaintiff discovered that, due to inadvertence, he had neglected to file a jury notice. I fully agree with the Master's reasoning with respect to the impact of examinations for discovery on this analysis. He stated, at para. 12:
To hold that discovery is a dividing line would have the benefit of certainty. It would also, however, have the effect of rewriting the rules of practice. If extensions of time are always given prior to discovery and always refused after discovery, Rule 47.01 would be read as if "close of pleadings" really meant "discovery." The plaintiff seeks an exercise of discretion to remedy a missed time limit. In a case of inadvertence, such discretion should be exercised to extend the time if to do so will not unduly prejudice the defendants. The closer one gets to trial, the more likely that prejudice will be inferred and less likely that an indulgence will be granted. Requests to file a jury notice after (or during) discovery must be particularly scrutinized because there us danger of taking the other party by surprise and obtaining an unfair advantage.
[24] I do not see the completion of discoveries as a factor particularly relevant to the issue of prejudice. Discoveries are merely exercises in fact-finding. The facts are no less and no more important in a jury trial than in a judge alone trial. The jury never sees the actual examination for discovery, so the manner in which it is conducted will never have an impact. The transcript of the discovery is used in the same way before a judge as before a jury. In my view, the only real relevance of the completion of discoveries as a benchmark is as a timing issue. The fact that discoveries are complete is an indication that the action is nearing the trial stage at which point counsel will begin the actual preparation for trial, which may be quite different based on whether or not there is a jury. In this regard, [page478] I echo the following observations of Perrell J. in Doe v. Bragg, [^13] at para. 31:
In my view, while there are differences in how to conduct the trial of an action depending on whether there is to be a judge and jury or a judge alone, that difference does not justify refusals to answer questions on an examination for discovery. The pursuit of truth promoted by the discovery process should not be influenced by the mode of trial. If the questions regarding past relationships and a prior sexual assault were proper for a judge alone trial then they ought to have been proper for a judge and jury trial. Answering questions should not be governed by tactical considerations. See Wilkinson v. Holtby, supra. Similarly, the production of documents should be no different in a jury trial and in a non-jury trial.
[25] Perrell J. held that the relevant factors to be considered are whether there has been unconscionable delay or prejudice to the other party. With respect to prejudice, he rejected (as do I) that this can be determined by any arbitrary benchmark, such as the completion of discoveries. He held, at para. 35:
The problem in the case law is that prejudice in my view should not be simply assumed by some arbitrary procedural benchmark. Although the discovery stage had been reached in the immediate case, it was not demonstrated to me that the plaintiff was prejudiced in a way that genuinely related to the expectation that the action would be tried by a judge alone or in any other material way.
[26] To summarize, there are two key factors to be taken into account in determining whether to permit the service of a jury notice after the close of pleadings: (1) the circumstances of the delay; and (2) whether there is prejudice to the other side.
[27] With respect to delay, it is relevant to consider both the length of the delay and the reasons for the delay. The longer the delay, and the closer the case is to trial, the greater will be the likelihood that the delay will be considered unconscionable delay. Where there has been an unforeseen development in the case (such as an increase in the quantum of damages sought, or the addition or removal of parties or causes of action), the delay is less likely to be objectionable. Likewise, where the intention had been to deliver a jury notice and it was solely due to the inadvertence of counsel that this was not done, the delay is less likely to be considered unconscionable.
[28] There is no presumption of prejudice. However, logical inferences may be drawn in appropriate cases. The closer the action is to trial, the more likely it will be that prejudice is inferred. For example, by the week before trial, counsel will likely have [page479] prepared witnesses and exhibits based on presentation to a judge alone. Preparation for a jury trial has substantial differences. A motion judge might well take that into account even in the absence of specific evidence. Similarly, if the effect of the jury notice will be to delay the trial, prejudice to the other party can be inferred. However, in many cases, prejudice will not be apparent without some evidence from the party alleging it. I appreciate that this may present some difficulties, or perhaps awkwardness, where the prejudice arises from the choice of which witnesses to call or other tactical decisions, such as whether to undertake surveillance of a plaintiff. In those situations, some allowances must be made for a certain degree of vagueness in the affidavit material. The party seeking the indulgence cannot be permitted to gain an advantage by cross- examining opposing counsel on issues of trial tactics or matters of solicitor and client privilege. However, the party claiming prejudice must at least assert the existence and general nature of the prejudice.
E. The Decision of the Motion Judge
[29] The motion judge in this case recognized that a trial by jury is a substantive right that ought not to be interfered with except for cogent reasons. She held that leave should not be granted if there had been unconscionable delay or if the defendants would suffer prejudice by the late delivery of the jury notice. She adopted the reasoning of Perrell J. in Doe v. Bragg that there is no "magic deadline" when prejudice became automatic and rejected the notion that prejudice should be assumed because examinations for discovery had been completed. The trial judge noted that the matter could not be tried by a jury until the City of Brantford had been released from the action in mid-2007 and accepted that the delay after that time had been due to the inadvertence of counsel. She discounted the relevance of the defendants' evidence that a jury trial would be longer and more costly on the grounds that this was not prejudice caused by the delay, but rather was simply a feature of every jury trial and would have existed even if the jury notice had been delivered at the beginning of the action. The motion judge made a specific finding that the trial would not be delayed as a result of switching to a jury trial, even though the trial date was only about a month away. She also found that trial preparation had not begun in earnest and noted that there was no evidence presented that the defence would have been conducted any differently had the jury request been served earlier. In the result, she found that the delay was not unconscionable and that there was [page480] no real prejudice to the defendants. She exercised her discretion and granted the extension sought by the plaintiffs.
F. Analysis
[30] The motion judge was required to be correct on questions of law. I find no legal error in her reasons. She correctly identified and applied the legal test for granting leave.
[31] In considering whether the delay was unconscionable she took into account the length of the delay, the fact that for a substantial portion of that time there could not be a jury notice because the City of Brantford was a party, and the fact that the delay after that point in time was solely because of the inadvertence of counsel. All of these were relevant factors to have taken into account.
[32] On the issue of prejudice, the motion judge declined to infer prejudice merely because discoveries had been completed. She also rejected the defendants' argument that they were prejudiced because a jury trial would be longer and more costly. This was not prejudice arising from the delay. The motion judge did not err in law in respect of those conclusions. She took the imminent trial date into account but found that the trial would not be delayed. These are relevant considerations.
[33] Finally, the motion judge weighed the competing interests and exercised her discretion in favour of the plaintiff. She did not misdirect herself and considered all relevant factors. The question is not whether this court would exercise its discretion in the same manner. The motion judge's conclusion is entitled to deference from this court.
G. Conclusion
[34] The appeal is dismissed. The successful party is entitled to costs, both of the appeal and the leave to appeal motion. Counsel for the respondents seeks costs of $5,500 for both the appeal and the leave motion, inclusive of disbursements and tax. That is a reasonable sum given the issues involved and preparation required. Costs are fixed at $5,500 payable by the appellants to the respondents forthwith.
Appeal dismissed.
[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at para. 8. [^2]: Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, [1989] S.C.J. No. 48, at p. 1375 S.C.R.; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, 151 D.L.R. (4th) 119. [^3]: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 190 D.L.R. (4th) 257. [^4]: Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, [1987] S.C.J. No. 6, 38 D.L.R. (4th) 321, at paras. 107-109. [^5]: Dunn v. Bederman, [1999] O.J. No. 3231, 104 O.T.C. 157 (S.C.J.). [^6]: [1998] O.J. No. 2004, 67 O.T.C. 207 (Gen. Div.). [^7]: Vataner v. Rossi, [1991] O.J. No. 3449, 2 C.P.C. (3d) 156 (Gen. Div.); Rodic v. Centre of Addiction and Mental Health, [2001] O.J. No. 2000, [2001] O.T.C. 393 (S.C.J.); Markakis v. Conklin Group Inc., [2007] O.J. No. 5265 (S.C.J.). [^8]: Jackson v. Hautala (1983), 1983 1974 (ON SC), 42 O.R. (2d) 153, [1983] O.J. No. 3063 (Div. Ct.), at para. 9. [^9]: Jackson v. Hautala, supra, at para. 11. [^10]: Paskie (Litigation Guardian of) v. Canadian Amateur Boxing Assn. (1999), 1999 19926 (ON SCDC), 45 O.R. (3d) 765, [1999] O.J. No. 3264 (Div. Ct.). [^11]: Rodic v. Centre of Addition and Mental Health, supra. [^12]: Safi v. Doctor's Hospital, [1999] O.J. No. 283, 85 O.T.C. 392 (Gen. Div.). [^13]: Doe v. Bragg, [2005] O.J. No. 3932, 19 C.P.C. (6th) 224 (S.C.J.).