Safranyos et al. v. McHugh and City of Hamilton

CITATION: Safranyos et al. v. McHugh and City of Hamilton, 2015 ONSC 6146

DIVISIONAL COURT FILE NO.: DC-15-00658

DATE: 2015-10-05

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DAWN SAFRANYOS ET AL, Plaintiffs/Respondents

AND:

DARYL MCHUGH Appellant/ Respondent in the Cross Appeal and Respondent to the Cross Appeal of

THE CITY OF HAMILTON

BEFORE: Swinton, Mullins, and Fregeau JJ.

COUNSEL: Mr. G. Bodnaryk, for the Defendant Daryl McHugh/Appellant and Respondent in the Cross-Appeal

Mr. J. de Vries and Mr. P. Brennan for the Defendant The City of Hamilton/Respondent and Cross-Appellant

Mr. R. Hooper for the plaintiffs

HEARD at Hamilton: Friday, October 02, 2015

ENDORSEMENT

[1] The City of Hamilton (the “City”) brought a motion seeking to have the jury notice of the co-defendant McHugh struck and to bifurcate the trial of this and two related actions. The motion’s judge declined to strike the jury notice and made the bifurcation order requested.

[2] McHugh appeals the bifurcation order. The City cross-appeals the dismissal of the relief sought to strike the jury notice. McHugh was granted leave to appeal. The City seeks leave to appeal from this court.

[3] By order dated August 14, 2013 given on consent, three actions, including this one, all of which arise from the same motor vehicle event were ordered to proceed together and have a common liability trial, with damages to follow as directed by the trial judge.

[4] In his reasons for making the order bifurcating liability and damages, but not striking the jury notice, the motion’s judge accepted McHugh’s submission that section 108 of the Courts of Justice Act does not expressly prohibit ‘the filing’ of a jury notice, it only prohibits a trial by jury should a municipality remain a party. The motion’s judge reasoned that it was premature to strike the jury notice. He acknowledged the decision given in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126, which held that bifurcation may only occur on consent where a valid jury notice was extant. The motion’s judge nonetheless dismissed the motion to strike the jury notice and went on to reason that the ancient right of the court to control its process warranted bifurcation of the issues of liability and damages.

[5] McHugh now appeals the order granting bifurcation on the basis that such an order cannot be made where there is a valid jury notice in the absence of consent, all in accordance with the decision of the Court of Appeal in Kovach.

[6] The City seeks leave to appeal pursuant to Rule 61.07(1.1)(b). In accordance with Rule 61.07(1.2), the respondent is required to obtain leave to appeal in accordance with Rule 61.03(8), as the cross-appeal is taken under a statute that requires leave for an appeal – namely, s. 19(1)(b) of the Courts of Justice Act. Rule 61.03(8) allows the request for leave to appeal to be made to the panel. McHugh does not oppose the leave application.

[7] Applying the test in Rule 62.02(4), which applies to motions for leave to appeal interlocutory orders, we are satisfied that there is good reason to doubt the correctness of the decision not to strike the jury notice. The decision also conflicts in principle with other decisions of this court, as for example that in Nikore. v. Proper, 2010 ONSC 2307 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (C.A.). We find it desirable that leave be granted and that the matters to be of importance, not only to all of the parties in all three of the actions affected by it, but also as a matter of general application to practice governing service and filing of jury notices.

[8] Rule 47 of the Rules of Civil Procedure provides that a party may require trial by a jury by delivering a jury notice before the close of pleadings, unless section 108 of the Courts of Justice Act or other statute requires that the action be tried without a jury. Delivery of a notice is defined in rule 1.03 to mean service and filing with proof of service. Section 108 of the Courts of Justice Act requires that an action shall be tried without a jury in respect of a claim for relief against a municipality.

[9] Read together, Rules 1, 47 and section 108 of the CJA clearly do operate, in our view, to prohibit ‘the filing’ of a jury notice where a municipality has been named as a party. We find that the motion’s judge erred in law in concluding otherwise. The jury notice ought to have been set aside or treated as a nullity. Had this occurred, the decision on bifurcation would not fail to adhere to the appellate authority in Kovach which here forms the basis for the appeal of that aspect of the ruling.

[10] The appeal of the defendant McHugh is, therefore, dismissed. The cross appeal of the defendant The City of Hamilton is allowed and the jury notice hereby set aside.

[11] Costs of the motion granting leave to appeal were reserved to this court. The City of Hamilton seeks costs of the motion for leave to appeal, the appeal and the cross appeal, on a partial indemnity basis, in the sum of $14,459.21, in accordance with the fees and disbursements reflected in their Bill of Costs. Counsel for the plaintiff(s) seeks costs of $2,000.00, having been served with the appeal proceedings by McHugh. The plaintiffs did not file material on the merits or in support of a claim for costs, but made submissions and seek a counsel fee for the appeal. Had the defendant McHugh been successful, costs of $4,263.58 in accordance with this defendant’s Cost’s Outline would have been sought, a significantly lower amount than that claimed by The City. There were no Reply materials filed to the cross-appeal. As the successful parties on this appeal, the City and the plaintiffs herein shall have costs from the defendant McHugh. The City shall have costs fixed at $7,500.00 inclusive of HST. The plaintiffs shall have costs fixed at $750.00 inclusive of HST.

Swinton J.

Mullins J.

Fregeau J.

Date: 5th October, 2015