Court File and Parties

CITATION: Boniferro v. Jolicoeur, 2024 ONSC 2601 COURT FILE NO.: CV-18-00027813-0000 DATE: 2024-05-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan Boniferro, Plaintiff AND: Roland Jolicoeur, Defendant

BEFORE: P.J. Boucher, R.S.J.

COUNSEL: Brian Gualazzi, for the Plaintiff / Moving Party Kieran Dickson, for the Defendant / Responding Party

HEARD: April 26, 2024 via Zoom

Endorsement

[1] The plaintiff moves for leave to strike the jury notice, to amend her claim to bring it within the simplified procedure and to have the action tried pursuant to the simplified procedure. The defendant opposes the relief sought.

Background

[2] The plaintiff was a passenger in a motor vehicle that was involved in a collision caused by the defendant on June 17, 2016. She started this action on May 24, 2018, claiming $390,000 in non-pecuniary damages, $500,000 in pecuniary damages and $200,000 in damages for housekeeping/home maintenance. At the time, the monetary limit of the simplified procedure was $100,000. That limit was increased to $200,000 on January 01, 2020.

[3] The statement of defence and jury notice were delivered on March 14, 2019. The action was set down for trial on May 15, 2023.

[4] Liability is admitted. The only issues to be determined are damages and possibly a threshold motion.

Leave to bring the motion

[5] A party who sets down an action for trial may not initiate any motion without leave of the court: r.48.04(1), Rules of Civil Procedure. The contemporary approach to requests for leave involves a flexible consideration of various factors in light of the particular circumstances of the case: BNL Entertainment Inc. v. Rickets, 2015 ONSC 1737, at paras. 12 and 14; Fulop v. Corrigan, 2020 ONSC 1648, at para. 77.

[6] In exercising its discretion, the court in Fulop set out at paragraph 77 the following non-inclusive factors that may be considered:

(a) what the party seeking leave knew at the time of the passing of the trial record;

(b) whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial;

(c) the purpose of the request for leave;

(d) the nature of the relief being requested;

(e) whether the party opposing the relief would suffer any prejudice; and

(f) whether the relief sought would likely be granted if leave were given to bring the motion notwithstanding the filing of the trial record.

[7] The plaintiff argues several factors mitigate in favour of granting leave, including the increase in the monetary limit of the simplified procedure. Further, it was only after receipt of all the expert reports, in particular the defence report dated November 08, 2022, that her counsel re-assessed her possible damages and concluded they would come below the new limit under r. 76. In addition, she submits the unexpected pandemic-related backlog in Sault Ste. Marie, where this action will be tried, means this four-week jury trial will be delayed. In particular, she argues the earliest it could be heard is January 2025, on a running trial list behind at least another lengthy matter. The next civil jury running trial lists are scheduled for November 2025, and November 2026.

[8] The defendant submits that the question of whether there has been a substantial or unexpected change must be determined based on what was known at the time the trial record was filed. The defendant argues there is no evidence of any change since the matter was set down for trial: the pandemic backlog and the change to the monetary limit of r. 76 were known many years before the trial record was filed. The defendant further submits the right to a jury trial is a substantive right, and the plaintiff has failed to establish justice will be better served by striking the jury notice.

Analysis

[9] I begin by considering the first two Fulop factors: what was known to the moving party when the trial record was passed and whether there has been a substantial or unexpected change in circumstances since the action was set down for trial.

[10] By May 2023, over three years had passed since the amendment to the monetary jurisdiction of the simplified procedure. By no later than November 2022, the plaintiff received advice from her counsel that her damages would likely fit within the simplified procedure. In March 2023, counsel for the plaintiff emailed counsel for the defendant seeking their consent to amend the claim to bring the matter within r. 76. In May 2023, prior to receiving a response to the request in writing from the defendant, the plaintiff filed the trial record. This was just before the expiry of the five-year anniversary of the commencement of the action: r. 48.14 (1). Automatic dismissals after five-years were suspended by Court Services Division during the pandemic and are only resuming in May 2024. Nonetheless, the plaintiff’s position is that she felt compelled to file her trial record within the prescribed time limit.

[11] The fact the defendant was aware of the plaintiff’s request to move to simplified procedure prior to the filing of the trial record is of no moment. It does change the fact that filing the trial record meant leave of the court would be required to bring motions.

[12] Moving the matter along in accordance with the five-year timeline is an important consideration. However, the Rules also provide for extensions of that timeline if a timetable is ordered, on consent or otherwise, setting deadlines for the completion of the remaining steps necessary to have the action set down for trial: r. 48.14(4), (5). The plaintiff instead set the action down for trial and a month later served this motion requesting leave and permission to bring the matter within the simplified procedure.

[13] The problems with scheduling civil jury trials in Sault Ste. Marie, precipitated by the pandemic, were well known to the plaintiff prior to filing the trial record. Indeed, two of the Sault Ste. Marie cases submitted by the plaintiff on this motion were released around the same time plaintiff’s counsel determined her claim would not exceed the monetary limit of the simplified procedure.

[14] In summary, the grounds the plaintiff argues in support of her request to strike the jury notice and move to simplified procedure pre-existed the filing the trial record. There has been no substantial or unexpected change in the circumstances since the matter was set down for trial.

[15] Other factors to be considered include the purpose and nature of the request, whether the opposing party would suffer any prejudice and whether the relief sought would likely be granted if leave were given. When I consider these factors, and for reasons I will explain, I find the plaintiff has failed to persuade me that leave should be granted. The motion must therefore fail.

[16] If I had granted leave, I would have dismissed the balance of the motion for the following reasons.

Striking the jury notice and moving to simplified procedure

[17] Moving the action into the simplified procedure and striking the jury notice are inexorably intertwined. The jury notice was filed before the change to the simplified procedure’s monetary limit. In this situation, moving the case to the simplified procedure does not automatically result in the discharge of the jury. In other words, the changes that removed the availability of jury trials for r. 76 proceedings are not retroactive: Thomas v. Aviva, 2022 ONSC 1728, at para. 54.

[18] The focus of the relief sought is the striking of the jury notice. The thrust of the plaintiff’s position is that a judge-alone trial will be more cost-effective and proportionate to the relief sought, and quicker to schedule, while causing no prejudice to the defendant. Jury trials are generally more time consuming and expensive than non-jury trials, but efficiency alone does not justify striking the jury notice: Lightfoot v. Hodgins, 2021 ONSC 1950, at para. 73.

[19] A civil litigant’s statutory right to a jury trial is a fundamental substantive right that is not merely a procedural means to a verdict: Penate v. Martoglio, 2024 ONCA 166, at para. 18. A party seeking to strike a jury notice bears the onus of establishing that there are factual, evidentiary, or procedural issues in the trial that merit discharging the jury. Put another way, the moving party must show that justice to the parties is better served by discharging the jury: Cowles v. Balac, 2006 ONCA 658, at para. 37.

[20] The evidence filed on behalf of the plaintiff consists of an affidavit sworn by her counsel. It provides general information about the impact on plaintiffs of delayed motor vehicle proceedings. It also sets out that she feels stressed by the litigation and has experienced difficulties sleeping. While recognizing this impact on her, I note there is no medical evidence to suggest her condition will worsen if the action is not soon heard. In other words, there is no evidence to suggest the stress she is experiencing is any different than that which typically arises during litigation. There is also no evidence specific to her about the potential financial impact of a jury trial.

[21] The evidence also sets out some of the pandemic’s effect on scheduling in Sault Ste. Marie in general, and scheduling civil jury trials in particular. The COVID-19 pandemic created an unprecedented scheduling crisis in courts across Ontario. Jury trials were suspended for extended periods in the interest of public safety. Local conditions necessarily impact solutions that are used to address delay: Louis v. Poitras, 2021 ONCA 49, at para. 3.

[22] As part of the response to this delay, Local Administrative Justice Varpio implemented a new scheduling protocol on February 08, 2024 (the Protocol), after consultation with the local bar. Although neither party filed the Protocol in evidence, they confirmed they had it. As Regional Senior Judge for the Northeast Region, I was consulted by Local Administrative Justice Varpio prior to its implementation. It has been in effect since it was distributed on February 08, 2024.

[23] The Protocol establishes civil jury running trial lists in November as well as non-jury running trial lists in April. In addition, parties may seek, but may not necessarily receive, set dates for non-jury civil matters on an ad hoc basis. Further, there is an additional civil jury running trial list scheduled for January 2025, though another lengthy matter is already scheduled. The plaintiff correctly points out that the earliest this matter could proceed before a jury is January 2025. If it is not reached, it will next be scheduled for the November 2025 running trial list. If it is not reached on that list, there will be a delay of another year.

[24] If this was a non-jury civil trial, it could be scheduled in the April 2025 running trial list. If it is not reached, it would be delayed a year. There is also the option to request set dates, though the court’s ability to schedule these will necessarily be impacted by the fact one of the three local judges has elected supernumerary status as of this June. Until that judge is replaced, the ad hoc scheduling of civil trial matters outside the running trial lists will be difficult.

[25] The plaintiff provided two recent cases on point decided in Sault Ste. Marie: Borkowski v. Karalash, 2023 ONSC 6274 and Grisdale v. O’Rourke, 2023 ONSC 6600. In both cases the court struck the jury notice and ordered the matter to proceed under the simplified procedure. These cases are distinguishable for several reasons. In Borkowski, there was evidence that the length of the jury trial would be financially devastating to the plaintiff’s family. In Grisdale, there was evidence of the plaintiff’s financial difficulty and the prohibitive cost of a jury trial. More importantly, however, both were decided prior to implementation of the new Protocol. They were decided before the Superior Court in Sault Ste. Marie was able to build civil jury running trial lists into the schedule.

[26] In my view, justice to the parties is not better served by striking the jury notice. The stress to the plaintiff caused by the delay to start the jury trial and the associated expense, while understandable, does not outweigh the prejudice to the defendant of depriving him of his statutory right to a jury trial on this record. Whether trial by judge-alone or by judge and jury, this matter will be on a running trial list next year. There are two civil jury running trial lists in 2025 and one non-jury running list. If the action cannot be tried next year, it will go over to 2026 in either case.

Conclusion

[27] In such circumstances, striking the jury notice would deprive the defendant of a substantive statutory right, while not necessarily serving any benefit for the plaintiff.

[28] For these reasons, the plaintiff’s motion is dismissed.

[29] If the parties cannot agree on costs, the defendant may file submissions of no more than two pages, double-spaced, not including any offers to settle and bill of costs, within 15 days of the date of this decision. The plaintiff may file submissions no later than 30 days from the date of this decision. Reply submissions of one page, if any, may be filed no later than 37 days from the date of this decision.

Regional Senior Justice Patrick J. Boucher Date: May 3, 2024