Court File and Parties

COURT FILE NO.: CV-20-648140 DATE: 2024 09 18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANDREW KUZYK, Plaintiff - and - BURKHARDT MIGGO and EUNICE MIGGO, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: S. Bodrov, for the defendants (moving parties) B. Pedersen, for the plaintiff

HEARD: September 12, 2024

REASONS FOR DECISION (Motion to Extend Time for Jury Notice)

[1] The defendants move to extend the time to deliver a jury notice in this motor vehicle accident action. The plaintiff opposes the motion.

[2] After hearing the parties’ submissions, I dismissed the motion for reasons to follow. I confirmed that I was not satisfied that the defendants had adequately explained the delay in seeking to serve a jury notice and, in the circumstances of this case, there is sufficient prejudice weighing in the plaintiff’s favour to deny leave at this point in the litigation. These are my reasons for that disposition.

Analysis

[3] Rule 47.01 of the Rules of Civil Procedure, RRO 1990, Reg 1924 (the “Rules”) provides that, in an action that may be tried by a jury, a party may require that issues be tried or damages be assessed by a jury by delivering a jury notice. The rule requires that the jury notice may be delivered at any time before the close of pleadings.

[4] Rule 25.05 of the Rules governs the close of pleadings. It provides that pleadings are deemed closed when (a) the plaintiff has delivered a reply to every defence in the action or the time for delivery of a reply has expired and (b) every defendant who is in default in delivering a defence in the action has been noted in default. Pursuant to subrule 25.04(3), a reply, if any, must be delivered within ten days after service of the statement of defence.

[5] The right to a jury trial in our civil justice system has consistently been recognized by the court as an important substantive right. It is one that ought not to be taken away except for cogent reasons: Nikore v. Proper, 2010 ONSC 2307 (Div Ct) at para. 19; Ampadu v. Novopharm Ltd. , [1998] OJ No 4699 at para. 11 (leave to appeal ref’d, [1999] OJ No 618 (Div Ct) ).

[6] Although the right to a civil jury trial is a substantive right, it is not an absolute one. A party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury. Parties do not have an unfettered right to determine the mode of trial: Louis v. Poitras, 2021 ONCA 49 at para. 17. After pleadings have closed, the right to a civil jury becomes subject to the court’s discretion. A jury notice can only be delivered after that time with leave of the court: Nikore v. Proper , supra at para. 9 .

[7] The applicable considerations on this motion are agreed by the parties. Whether or not to grant leave to deliver a jury notice at this stage in the proceeding is a discretionary decision. In exercising that discretion, I must consider two factors: (i) the nature of the delay (including the length of the delay and the reasons for it); and (ii) whether granting leave would result in prejudice to the other side: Nikore v. Proper , supra at para. 19 .

[8] The sole explanation for failing to deliver a jury notice and for the delay in seeking leave to do so is inadvertence by the defendants’ lawyers. Importantly, it is the inadvertence of not just one lawyer, but of two.

[9] The defendants’ main supporting affidavit on this motion is sworn by their current lawyer with carriage of the file. It is fairly brief, consisting of only 14 paragraphs. The below facts are drawn from that affidavit, as well as from the procedural history outlined in the plaintiff’s responding affidavit.

[10] In September 2020, the defendants’ insurer, Wawanesa Mutual Insurance Company (“Wawanesa”), assigned the defence of this action to the affiant lawyer’s former colleague. He delivered a notice of intent to defend in October 2020 and, subsequently, a statement of defence was served on February 22, 2021. A jury notice was not served. No reply was served by the plaintiff. Pleadings were accordingly deemed closed on March 4, 2021.

[11] On March 23, 2021, the plaintiff obtained an order granting leave to amend the statement of claim to increase the non-pecuniary and pecuniary damages claims. Per the signed order, the motion was unopposed by the defendants. The undisputed evidence is that the issued amended statement of claim was served on the defendants. An amended statement of defence was not delivered (although that is not surprising given that the only amendment was quantum of damages). Amending the statement of claim re-opened pleadings and restored the defendants’ right to serve a jury notice without leave: Smith v. Saraf-Dhar, 2016 ONSC 4556 at para. 34. Nevertheless, no jury notice was served.

[12] Months later, in August 2021, the defendants’ prior lawyer served a notice of examination for discovery of the plaintiff. In September 2021, the plaintiff’s lawyer served a proposed discovery plan and a notice of examination for the defendants. Examinations for discovery thereafter proceeded in September 2021. The plaintiff’s examination was not completed. It was scheduled to continue in January 2022.

[13] Although the precise date is not before me, the defendant’s prior lawyer left the firm sometime in December 2021. The affiant lawyer states that the matter was assigned to her for handling, although she does not state whether that occurred in December 2021 or January 2022. A notice of change of lawyers was served in January 2022.

[14] The sole evidence from the affiant lawyer on her own “inadvertence” is general and non-specific. Given its significance in my assessment of the delay factor, I am reproducing it in its entirety. She affirmed in her affidavit as follows:

Upon transferring the matter to me for handling, I reviewed the file materials but through my inadvertence I did not notice that a Jury Notice was missing. Based on my experience in handling motor vehicle collision actions , the client’s impression that this matter was proceeding by way of a jury trial , and the general practice of SBA LLP, it was my understanding and belief that a Jury Notice ought to have been served and filed with the Statement of Defence, and that it was in fact served and filed at the outset of the within action.

Upon conducting a routine review of our file materials, I identified that a Jury Notice was not in fact filed. I reported same to our client who instructed us to bring the herein motion.

[15] There is no indication of any timeline in which the initial or subsequent file reviews occurred. Written notice of the intention to bring this motion was not given until an email sent in January 2023. The defendants’ lawyer affirms in her second affidavit that there was a discussion between counsel in October 2022, during which the affiant lawyer says that she “gave verbal intention” of filing this motion.

[16] Regardless, other than a bare assertion of inadvertence, there is no explanation for why the lack of a jury notice was not noted before October 2022, over a year and a half after the statement of defence had been delivered and some seven months after discoveries had been completed. There is also no explanation for why nothing appears to have occurred between October 2022 and January 2023, when the email was sent confirming that this motion would be brought.

[17] Continued examination of the plaintiff was scheduled to proceed in January 2022, but was rescheduled to March 2022. It is undisputed that those examinations were conducted by the affiant lawyer. The defendants argue that taking carriage of the file shortly before discoveries would have required significant work given the issues in dispute and, accordingly, it is reasonable to have overlooked the jury notice while ramping up to continue discoveries that the departed lawyer had started. I decline to draw that inference. Frankly, I think it inappropriate to fill the gaps in the defendants’ evidence by drawing inferences on matters that the affiant lawyer was fully capable of explaining herself.

[18] Nothing in the materials suggests that anyone other than the affiant lawyer was involved in file reviews after she assumed carriage of the file. The affiant lawyer could have, but did not, outline the steps that she took in reviewing the file upon transfer, the circumstances under which her reviews took place, and the reasons why she did not avert herself to the fact that a jury notice had not been served at any point in the course of file review, preparation for discovery, and conducting the examination for discovery. Particulars of what she did or did not do, and why, would allow a fair and proper assessment of whether she is accurately viewed as having been “inadvertent” in failing to note that a jury notice had not be served.

[19] It was also within the affiant lawyer’s ability to explain the circumstances under which the “routine review” occurred, when that occurred, how the missing jury notice was noted, and why nothing happened between the discussion with the plaintiff’s lawyer in October 2022 and the email sent in January 2023 indicating that this motion would be brought.

[20] Significantly, there is no evidence on why the defendants’ first lawyer did not serve a jury notice at any point between serving the statement of defence in February 2021 and the examinations for discovery in September 2021, or at any point prior to his departure. His direct evidence on failing to serve a jury notice, despite alleged instructions to do so, would have been helpful on this motion. Nevertheless, an affidavit was not obtained from him.

[21] The former lawyer also does not appear to have been contacted for an explanation about what happened. Hearsay evidence of his explanation, while hardly ideal, would at least still have been admissible on this motion pursuant to subrule 39.01(4) of the Rules. That subrule expressly permits a motion affidavit to contain statements of the deponent’s information and belief, so long as the source of the information and the fact of the belief are specified in the affidavit. No explanation has been given for why the former lawyer was not contacted or could not be contacted for his explanation.

[22] The defendants point to their current lawyer’s evidence that, based on her experience, the firm’s “general practice” is to file a jury notice in personal injury actions arising from motor vehicle accidents. I am asked to infer that the former lawyer’s failure to serve a jury notice was inconsistent with that general practice and, accordingly, should be considered inadvertent. I decline to draw that inference, which I do not feel is fairly drawn from the limited evidence before me on the former lawyer’s handling of the file.

[23] There is also no cogent evidence of either (i) the defendants’ former lawyer having been instructed to serve a jury notice, or (ii) the defendants (or their insurer) having an actual intention for this action to be tried by jury from the outset, as asserted. The affiant lawyer states that she has been advised “by [her] client, Wawanesa”, and believes, that Wawanesa instructed the prior lawyer to file a jury notice. Wawanesa is said to have always intended for this action to be tried by a jury and that Wawanesa understood and believed that a jury notice had been delivered.

[24] I give these statements of unattributed hearsay no weight. Stating that “Wawanesa” provided the information does not, in my view, comply with subrule 39.01(4) of the Rules . Wawanesa is not a single-person company. The individual(s) at Wawanesa who provided the information to the affiant lawyer are not identified. There is no evidence on how those person(s) know that the prior lawyer was instructed to serve a jury notice. Are they the same person(s) who gave the instructions? Were they told by someone else? Did they learn it from reviewing file notes? There is similarly no evidence on when and how Wawanesa came to understand that a jury notice had been delivered. Did the former lawyer advise someone at Wawanesa that it had been served? If not, did someone else at the law firm?

[25] For the above reasons, I am not satisfied that the defendants have established that failing to serve a jury notice was due to lawyer inadvertence. Even if they had done so, that would not be enough in this case. I agree with the statement in Smith v. Trisect Construction Corporation , 2016 ONSC 782 , at para. 9, that inadvertence unchecked and unverified over a long period of time begins to take on a hue more akin to negligence.

[26] In my view, where inadvertence is alleged as the reason for a jury notice not being served and for leave to serve a jury notice not being sought until years after the close of pleadings, a reasonable and meaningful explanation for ongoing inadvertence is needed. It is particularly necessary in cases where discoveries are complete and the action is essentially ready for trial.

[27] On this motion, the defendants have not reasonably or meaningfully explained their delay in seeking to serve a jury notice. I accordingly find their delay in bringing this motion to be unconscionable.

[28] Prejudice is the other factor. A party claiming prejudice must, at a minimum, assert the existence and general nature of the prejudice. There is no presumption of prejudice in a motion such as this one, but 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: Nikore v. Proper , supra at para. 28 .

[29] Examinations for discovery were completed in March 2022. The plaintiff’s undisputed evidence is that he has satisfied all undertakings. The action has now been set down for trial, albeit after this motion was brought. There is no evidence of outstanding interlocutory steps that must be taken before pre-trial and trial, other than defence experts delivering their reports.

[30] All of the steps from pleadings through discoveries were completed without any notice that a jury would be requested. I accept that the plaintiff and his lawyers understood throughout that this action would be proceeding to a judge-alone trial. There is nothing in the record supporting any notice to the plaintiff of the defendants’ intention to request a jury until October 2022, with no apparent follow up or written notice of that intention until January 2023.

[31] There is evidence in the responding record supporting that the current difference in available trial dates for a jury and non-jury trial is at least one year. The plaintiff argues that the additional delay to reach trial is itself prejudice, but also points to his exhausted medical benefits as additional prejudice from a delayed trial. Specifically, there is evidence that the plaintiff has nearly exhausted the medical and rehabilitation benefits available to him and will soon have to bear those costs himself pending trial.

[32] The defendants argue that the plaintiff has sufficient means to fund his medical expenses to trial given his annual income and a corporate ownership interest. They also submit that, had a jury notice been served, the plaintiff would be in the same position as he will be if leave is granted. In my view, both submissions miss the point. I say this for two reasons.

[33] First, the fact that the plaintiff has financial means to pay for his own treatment pending an extended period of delay to trial does not vitiate the prejudice from having to do so at all. The prejudice may be greater for a plaintiff of limited means, but there is still prejudice in both cases.

[34] Second, while the defendants’ submission is true that the plaintiff would be in the same position had a jury notice been served, the fact remains that a jury notice was not served. In my view, prejudice to the plaintiff must be assessed based on the change in landscape from permitting a jury notice at this point in the litigation as it has actually unfolded. Approaching prejudice through a hypothetical lens around what might have been would put the plaintiff in the unfair position of potentially having to tender evidence on what he may or may not have done differently in the course of litigation. That, in turn, may require delving into strategic or tactical decisions that were made based on a judge-alone trial, which would give an improper advantage to the defendants. The Divisional Court has stated that should not be permitted: Nikore v. Proper , supra at para. 28 .

[35] The defendants also point to medical assessments that have taken place between June and September 2024, as well as pending defence medical and financial expert reports. The defendants argue that a pre-trial cannot proceed in 2024 and that trial cannot reasonably even be scheduled before mid-2025. Essentially, the defendants suggest that the additional delay to a jury trial is overstated. I reject these arguments.

[36] The defendants have not explained why medical assessments and expert reports could not be and were not addressed sooner. As already noted, examinations for discovery have been complete since March 2022. In any event, outstanding defence medical and financial reports do not necessarily prevent a pre-trial from proceeding and trial being scheduled. Whether or not the defendants are afforded as much time as they want to serve expert reports will be up to the plaintiff or, if the parties cannot agree, the court.

[37] The defendants point to several cases where the court has permitted a jury notice to be filed late in litigation, even after a trial has been scheduled. I need not go through each case cited. Each of them turns on their particular facts and reflect an exercise of discretion by the presiding judge or associate judge in the context of those facts.

[38] For example, in Milne v RBC Life Insurance Company, 2022 ONSC 666, my colleague granted leave to the defendant to deliver a jury notice after trial had already been scheduled. However, in that case, there was evidence of active steps by the defendant’s lawyer to deliver a jury notice and obtain consent from the plaintiff to do so between the time of receiving instructions to serve the jury notice and the motion being brought. Although there were some periods of delay, they were viewed as unfortunate, rather than unconscionable. The position of inadvertence appears to have been accepted. With respect to prejudice, the plaintiff argued that his age and financial circumstances should be considered as a factor, but the delay to a jury trial at the time was only a few months and that delay was viewed as being offset by the lack of a reserved judgment. The facts and circumstances of this case are quite different.

[39] For the above reasons, I exercised my discretion to deny leave to the defendants to deliver a jury notice.

Costs

[40] Prior to submissions on the motion, the parties agreed that the defendants would pay costs to the plaintiff of $1,000.00, including HST and disbursements, in the event that they were unsuccessful. Costs shall be ordered accordingly.

Disposition

[41] The defendants’ motion is dismissed with costs of the motion payable by the defendants to the plaintiff in the amount of $1,000.00, including HST and disbursements. Order accordingly.

ASSOCIATE JUSTICE TODD ROBINSON DATE: September 18, 2024