Paskie by his Litigation Guardian, the Public Guardian and Trustee v. Canadian Amateur Boxing Association et al.

[Indexed as: Paskie (Litigation guardian of) v. Canadian Amateur Boxing Assn.]

45 O.R. (3d) 765

[1999] O.J. No. 3264

File No. 625/98

Ontario Superior Court of Justice

Divisional Court

Coo, Cusinato and Ferguson JJ.

September 8, 1999

Civil procedure -- Trial -- Jury trial -- Jury notice -- Pleadings closed in April 1994 -- Motion for leave to deliver jury notice heard in March 1998 -- Late delivery of jury notice permitted on ground that there had not been unconscionable delay.

The plaintiff was an amateur boxer who alleged that he sustained permanent brain injury as a result of participating in a tournament. He sued his coach, the referee, the sponsoring boxing associations and several doctors who were involved in attending at ringside and in the associations' decisions to permit him to box when he claimed he was unfit to do so. The plaintiff's first counsel issued a statement of claim in November 1992. Pleadings were closed in March 1994. The defendant doctors obtained an order appointing the Public Guardian and Trustee as litigation guardian for the plaintiff. The Public Guardian and Trustee appointed new counsel for the plaintiff in April 1997. That same month, the new counsel informed defence counsel that he intended to bring a motion to extend the time for the filing of a jury notice. In July 1997, the new counsel received the complete file from the plaintiff's first counsel. In January 1998, the plaintiff's counsel served the motion. The master granted the motion on the ground that there had not been unconscionable delay. That decision was approved on appeal. The defendants appealed further.

Held, the appeal should be dismissed.

Per Coo J. (Cusinato J. concurring): The decision made by the master and on appeal by the motions court judge was not on a matter vital to the final issue and therefore the decisions under consideration had to be demonstrated to have been clearly wrong. The defendants failed to demonstrate that the decisions were clearly wrong. There was no possibility that the defendants would be prejudiced by the granting of the extension.

Per Ferguson J. (dissenting): The current case law in Ontario on the service of a jury notice is flawed and should be changed. The retainer of a new counsel is an irrelevant factor because the right to elect a jury trial is that of the party, not his or her counsel. Rule 47.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contemplates the election being made once, early on, or else the party will be deemed to have elected trial without a jury. Neither rule 47.01 nor s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 give a party who changes counsel any right to make a new decision about electing a jury trial.

The factor of prejudice is not very helpful in the context of motions for an extension of time for filing a jury notice. It is difficult to identify and unseemly to prove. Since it is generally accepted that there will potentially be prejudice if the mode of trial is changed after the close of pleadings, the need for asking one party or the other to adduce evidence of prejudice should be dispensed with.

The time for filing a jury notice should only be extended if the applicant adduces evidence which establishes (a) that the applicant or the applicant's counsel made a decision before the deadline to deliver a jury notice but inadvertently failed to deliver it; or (b) that there has been a fundamental change in the character of the action which justifies giving the parties a right to re-elect. If inadvertence is relied on, the time should not be extended if the action has been placed on the trial list in accordance with rules 45.05 or 45.06 as this might delay the trial. If fundamental change is relied on, then the time should not be extended if the change occurred before the action was placed on the trial list unless it occurred too soon before to allow the party to bring a motion extending the time.

APPEAL by the defendants from a judgment dismissing an appeal from an order of a master allowing the late delivery of a jury notice.

Cases referred to Hoare v. Firestone Canada Inc. (1989), 1989 246 (BC CA), 42 B.C.L.R. (2d) 237, 65 D.L.R. (4th) 455, 38 C.P.C. (2d) 272 (C.A.); Jackson v. Hautala (1983), 1983 1974 (ON SC), 42 O.R. (2d) 153, 35 C.P.C. 108 (Div. Ct.); Mohajer Estate v. Frappier Group Inc., [1998] O.J. No. 2004 (Master); Ryan Estate v. Chubb Insurance Co. of Canada, Ont. Master, December 6, 1993 (unreported); Safi v. Doctor's Hospital, Ont. Master, January 15, 1999 (unreported); Vataner v. Rossi (1991), 2 C.P.C. (3d) 156 (Ont. Master); Warren v. Lowery (1976), 2 C.P.C. 137 (Ont. H.C.J.); Willoughby v. N.C.R. Ltd., [1979] 1 A.C.W.S. 394 (Ont. Div. Ct.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43 (am. 1996, c. 25, s. 9(17)), s. 108 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 3.02, 45.05, 45.06, 47.01

Dana M. Peebles, for appellants. Paul R. Jewell, Q.C., and René A. Clonfero, for respondents.

[1] COO and CUSINATO JJ.: -- The issue on this appeal is whether the decision by the master to allow late delivery of a jury notice on the ground that there had not been unconscionable delay -- a decision considered and approved by Hoilett J. on appeal -- should be overturned on the ground that the delay was unconscionable in the circumstances of this case.

[2] The majority see no error in principle in the way in which this matter has been approached below, nor do we see any error in interpretation of the factual circumstances. There has been long delay, something that Hoilett J chose to categorize as prima facie unconscionable. Given all of the detailed and somewhat unusual circumstances here, we are not persuaded that it was indeed unconscionable, despite the fact that the pleadings were closed in April 1994 and the motion for leave to deliver a jury notice was not in fact heard by the master until March 1998. The discoveries are far from being complete, the action has not been set down and there is no certificate of readiness, there is no sign that documentary discovery is complete and there has been no defence medical examination of which we have been made aware.

[3] New counsel retained after the Public Trustee came into the picture to represent the brain-injured plaintiff moved with reasonable promptitude to amend the statement of claim and to indicate his wish to have a jury trial. There was nothing about this alleged to be based on anything learned in the conduct of the lawsuit by present or erstwhile counsel.

[4] The decision made by the master and on appeal by the motions court judge was not on a matter vital to the final issue and therefore the decisions under consideration must be demonstrated to have been clearly wrong. That is a conclusion to which we are not prepared to come.

[5] We see no real possibility of prejudice to the defendant in what has occurred.

[6] The appeal will be dismissed with costs to the respondent fixed at $1,500.

FERGUSON J. (dissenting): -- I would allow the appeal on the ground that the master and the appeal court judge proceeded on the wrong principles and were clearly wrong. I hasten to add that they both decided the matter in accordance with the law as established by this court but in my respectful view that law should no longer be followed.

Facts

The plaintiff was an amateur boxer who alleges he sustained a permanent brain injury and other injuries as the result of participating in a tournament. He is suing his coach, the referee, the sponsoring boxing associations and several physicians who were variously involved in attending at ringside and in the associations' decisions to permit him to box when he claims he was unfit to do so.

The plaintiff's first counsel issued a statement of claim in November 1992. Pleadings were closed in March 1994. The discovery of one defendant was completed and the discoveries of three other defendants were commenced and adjourned. The defendant physicians brought a motion and obtained an order in June 1996 appointing the Public Guardian and Trustee ("PGT") as litigation guardian for the plaintiff.

The PGT appointed new counsel for the plaintiff in April 1997. That same month the new counsel informed defence counsel that he intended to bring various motions including one seeking to extend the time for the filing of a jury notice. In July 1997, the new counsel received the complete file from the plaintiff's first counsel. In January 1998, the plaintiffs counsel served his motions.

Master Donkin granted leave to extend the time for delivery of a jury notice. The defendant physicians appealed and Justice Hoilett dismissed the appeal. The physicians obtained leave to appeal from Justice Maloney and the appeal came on before this court. In all courts below and here the primary issue was whether there was unconscionable delay.

While it formed the basis for some of the reasoning in the courts below, I would simply state that the fact of the plaintiff's incapacity is not material to the issue on this appeal except that the dispute about it caused delay. There is no evidence that the first counsel had any difficulty in obtaining instructions or that he or the plaintiff did or did not put their minds to the issue of a jury notice. I note in this regard that the plaintiff opposed the motion to appoint a litigation guardian. There is no evidence that the new counsel consulted the PGT about the issue of a jury notice or that the PGT made any decision about the jury notice. The evidence before the court simply shows that the plaintiff's first counsel did not serve a jury notice and that the new counsel for the plaintiff decided, for undisclosed reasons, that he wished to serve a jury notice.

Analysis

The current case law in Ontario

The right to a trial by jury is governed by s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 which at the material time provided:

108(1) In an action in the Ontario Court (General Division) that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.

The applicable rule is 47.01:

47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings . . .

The leading case is Jackson v. Hautala (1983), 1983 1974 (ON SC), 42 O.R. (2d) 153, 35 C.P.C. 108 (Div. Ct.).

In that case the plaintiffs changed counsel three months after the deadline for service of a jury notice and the new counsel immediately sought leave to extend the time. Holland J. refused leave for these reasons [at p. 154]:

In my opinion, accepting that right to trial by jury is a substantive right, and that no prejudice has been shown, I am none the less of the opinion that the applicant who seeks to serve and file a jury notice late must show something more than a mere change of heart by counsel. Where the time for filing and serving a jury notice as of right has expired, the burden rests upon the applicant to satisfy the court that proper grounds exist for the court's exercise of discretion. To hold otherwise is to eliminate any real difference between the two provisions of s. 62 and thus defeat legislative intention.

(Emphasis added)

The Divisional Court disagreed and approved the following reasoning of Hughes J. in Willoughby v. N.C.R. Ltd., [1979] 1 A.C.W.S. 394:

I am firmly of the opinion that the litigant is entitled to have the issues between him and his opponent tried by jury unless there has been some unconscionable delay. In these circumstances I cannot find it. This is clearly a case where new solicitors have given a different opinion as to the requirements of the action than the ones that were originally retained.

(Emphasis added)

The Divisional Court did add one additional condition: the time should not be extended if the opposite parties are likely to be prejudiced. The court established this principle which it referred to as a guideline:

. . . where a new solicitor has been retained who, in the interests of his client, bona fide, wished to serve a jury notice, and the delay was modest with no prejudice resulting, then that discretion should have been exercised in favour of extending the time.

With the greatest of respect for the views of the learned members of that panel of this court, I believe that principle is wrong because it overlooks the purpose of the rule. The appellant's counsel contends that the case law which has developed since Jackson is confusing and fails to establish any predictability and consequently it is timely to review the applicable principles. I agree.

The flaws in the current case law

I think the current case law is flawed for two general reasons:

1. The principles in the case law conflict with the policy embodied in the governing statute and rule.

Giving new counsel the right to exercise the election disregards the fact that the right to make the election is not that of counsel; it is the right of the party.

I think it is significant that s. 108 gives the right of election to each party. Rule 47.01 also gives the right to elect to each party. Counsel can exercise the right as the representative of the party but counsel have no right of their own.

Where, as in the case under appeal, the party had counsel from the outset and that counsel did not elect a trial by jury on behalf of the client, why should the appearance of new counsel re-open the party's right? There is no evidence or even the suggestion that the first counsel intended to have a jury. There is no evidence or even the suggestion that the first counsel did not consider the matter and decline to elect a jury trial. There is no evidence at all as to what, if anything, the original counsel or the party decided about the issue. In Jackson the court approved the reasoning in Willoughby where the judge specifically noted that it was a situation where the new counsel held a different opinion about the desirability of a jury trial, Jackson clearly rejected the requirement of inadvertence.

The Jackson case appears to treat the right to assess the case and chose a jury trial as that of counsel rather than the party. The courts below have approached the matter in the same way. There is no evidence or suggestion in the case under appeal that the party was or was not involved in making a decision on the matter or that the Public Guardian and Trustee was either. The only evidence is that it was the preference of new counsel.

The case law has established that the same counsel will not be permitted to make a new assessment and deliver a late jury notice: Vataner v. Rossi (1991), 2 C.P.C. (3d) 156 (Ont. Master); Ryan Estate v. Chubb Insurance Co. of Canada (December 6, 1993; unreported) (Ont. Master); Mohajer Estate v. Frappier Group Inc., [1998] O.J. No. 2004 (Master); Safi v. Doctor's Hospital (January 15, 1999; unreported) (Master). So why should retaining a new counsel trigger that right? Does Jackson mean that if the first counsel did deliver a jury notice and the new counsel did not want a jury that the new counsel could move to strike the jury notice?

In my view the retainer of a new counsel is an irrelevant factor because the right to elect is that of the party not the counsel.

It is easy to understand how the courts came to the view set down in Jackson. The fact is that in reality it is almost always counsel not the party who makes the decision about the mode of trial. But this reality is all the more reason why a change of counsel should not be a relevant factor. Some counsel like juries and some do not. Counsel often disagree about whether it is desirable to have a jury in a particular case. The purpose of the rule is not to cater to this type of tactical philosophizing.

The rule contemplates the election being made once, early on, or else the party will be deemed to have elected trial without a jury. Neither the statute nor the rule gives a party who changes counsel any right to make a new decision about electing a jury trial.

2. The case law which has evolved since Jackson is confusing and unprincipled.

The case law which has developed since Jackson provides neither the predictability necessary to enable parties to make decisions about motions and appeals such as this one nor does it provide any rational, consistent principles on which the court can exercise its discretion in a particular case.

Jackson and the subsequent cases have mentioned numerous factors or principles as governing late jury notices: unconscionable delay, prima facie unconscionable delay that can be condoned, prejudice, undue prejudice, acting in the interests of a party, bona fides, a jury trial should only be denied for good reason, inadvertence, not permitting a party to gain an advantage by making the decision after obtaining new information after discovery. In my view, in the context of this rule these factors lack sufficient objective certainty to be useful to counsel or the court.

In the recent decision in Safi, Master MacLeod thoughtfully reviewed many of the cases and discussed these factors. Interestingly, when one reads his reasons one gets the impression that the outcome could go either way at any stage of the analysis. That indicates that the factors are not providing adequate guidance.

The sequence of decisions in the case under appeal also shows how little guidance the factors provide. Applying the same principle of unconscionable delay, the master found there was none and extended the time; Justice Hoilett found there was prima facie unconscionable delay but found it was excusable in the circumstances; Justice Maloney granted leave with the comment that "the periods of delay and the reasons given therefore in earlier decisions are so varied as to arguably be in conflict"; on this appeal the court is split. In my view the guiding principles are unsatisfactory. The application of the factors of unconscionable delay and prejudice results in almost unfettered discretion and costly proceedings like the one under appeal over a matter that will likely have little, if any, impact on whether the dispute in the action is justly resolved.

A brief review of how other courts have applied the two factors will make my point.

First, I will consider the factor of unconscionable delay. Jackson ruled that a late jury notice should not be allowed if there is unconscionable delay. Since then the courts have struggled to decide if "unconscionable" referred to the length of the delay, or the reason for the delay, or what happened before the motion for leave, or whether it related to the delay in making the decision to bring a motion, or in bringing the motion, and how delay should be weighed in comparison to prejudice: e.g., see Mohajer Estate, at para. 8. This confusion is not helpful.

In my view the outcome of cases on the basis of this confusion is not sound. In the case under appeal my colleagues conclude that a delay of three years between the deadline for the delivery of a jury notice and the decision by new counsel to seek leave to extend the time is acceptable in the circumstances. They also conclude that a delay of nine months from the time new counsel announced his intention to bring a motion and the date he served his notice of motion amounts to "reasonable promptitude". I simply cannot agree.

Second, consider the factor of prejudice. Jackson held that the time should not be extended if it would likely cause prejudice to the other party. In Safi, Master MacLeod observed that except for causing an adjournment to a jury sittings, it is difficult to identify any prejudice that would result from extending the time other than what would have been caused in any event if the jury notice had been served within the deadline. He's right in the sense that a jury trial has some inherent disadvantages such as increased length. However, the prejudice of concern is that the other party has made all its tactical decisions in the case up to the point of the election on the assumption that it will be a trial without a jury and now is in a position where they cannot undo those decisions or would incur cost to do so. It is one thing to say that causing such prejudice is less important than allowing a party to exercise their fight to choose a jury late in the day when exercising that right was overlooked through inadvertence. However, I do not see how it can be said that merely changing one's mind about the mode of trial can be more important than the potential prejudice; to say that would be to ignore the policy laid down by the rule.

It seems to me that the factor of prejudice is not very helpful in the context of these motions. It is difficult to identify and unseemly to prove.

In Vataner the counsel seeking leave advised the court that he had changed his mind because the other party's performance on discovery persuaded him that credibility would be an issue. I suggest that is a rare instance of candour. In most cases it is highly unlikely that counsel seeking leave would make such an admission. It is also unlikely that a counsel would attempt to show prejudice by adducing evidence that they thought their client had performed badly on discovery and that the applicant was trying to take advantage of that. It is also unlikely that counsel would be prepared to show prejudice by adducing evidence that they would have chosen a more personable expert if they had known the case would be tried by a jury. To introduce such personal assessments is a very unseemly business and should not be encouraged.

I also think that prejudice is not an appropriate factor to consider in deciding whether to extend the time for delivery of a jury notice because there is no objective way of assessing whether prejudice exists. If, for example, the counsel opposing the late jury notice swore that they would have conducted discoveries differently if they had known it would be a jury trial, how could that allegation be rebutted or its truth tested? No meaningful inquiry is possible.

I recognize that inadvertence is also probably an irrefutable allegation but at least it is a subject on which courts have traditionally been prepared to accept counsel's word.

Since it is generally accepted that there will potentially be prejudice if the mode of trial is changed after the close of pleadings we should dispense with the need for asking one party or the other to adduce evidence about prejudice.

How the case law should be changed

I think the case law should establish some simple principles which will enable a court to more predictably enforce the policy in rule 47.01.

I believe the purpose of the rule was correctly stated by Master Beaudoin as follows:

It is clear that a party's right to choose a jury is something that should be exercised early in the process. It was never intended to allow the party to change the mode of trial after they have had an opportunity to reconsider the merits and strengths of their case; otherwise the times frames set out in the Rules would have no meaning: Mohajer Estate v. Frappier Group Inc., [1998] O.J. No. 2004 at para 13.

I am cognizant of the fact that this is almost precisely what Holland J. said in Jackson. It is also consistent with the case law before Jackson. In Warren v. Lowery (1976), 2 C.P.C. 137 (Ont. H.C.J.), Justice Southey stated the law this way (at p. 140):

In Wise v. Can. Bank of Commerce, 1922 514 (ON SC), 52 O.L.R. 342, . . . Middleton J. quoted with approval a decision of Chancellor Boyd in Lauder v. Didmon (1894), 16 P.R. 74, in which he had pointed out that it was desirable to have it settled at as early a stage as possible in the course of an action whether the case is to be tried with a jury or without a jury. If a jury notice is permitted in a case like the one at bar, it would mean that litigants could never regard it as settled that an action will be tried without a jury, in the absence of an express agreement on behalf of all parties. In the circumstances of this case, in my judgment, the plaintiff had been entitled for some considerable time to assume that the action would be tried without a jury.

Several years after our Divisional Court decided Jackson, the British Columbia Court of Appeal considered their equivalent rule in Hoare v. Firestone Canada Inc. (1989), 1989 246 (BC CA), 38 C.P.C. (2d) 272, 65 D.L.R. (4th) 455. They adopted a position similar to the law in Ontario before Jackson. They reached this conclusion about the policy of the rule setting a deadline for the delivery of a jury notice (at p. 276):

. . . I have concluded that the election is intended to be made once only, at a particular stage, and for good reason. If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel. It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

The court went on to consider some earlier B.C. decisions and concluded that a late jury notice should be allowed only in two situations: where it was not delivered because of inadvertence and where there has been a fundamental change in circumstances (at pp. 276-77):

Those cases suggest, however, that a party seeking to elect for jury trial after expiry of the period limited by the rules must satisfy the Court either that the wish or intention to do so existed during the period so limited, or that it was prompted in fact by a fundamental change in circumstances.

It would not appear, according to the reasoning in those cases, to be enough that a party allow the period limited by the rules to pass without considering the matter of mode of trial, and sometime thereafter seek to elect for trial by jury on the basis of a first-time consideration of the matter. In Gombar, supra, Wilson J. (as he then was) says that litigants cannot be allowed "to revive lapsed rights on the sole ground that they have, since they allowed the rights to lapse, changed their minds" [p. 280]. I think it implicit in that view that a party who had no interest at the appropriate time in having the action tried by jury cannot rely on later change in circumstances as grounds for re- election. But, in any event, the change in circumstances relied on would, in my view, have to be one which so materially altered the character of the proceedings as to render an action clearly appropriate for trial by jury which, as originally brought, clearly was not.

I believe this to be the proper approach to the matter under our present Rules of Court.

Hoare was not a case where there was a change of counsel and so the British Columbia Court of Appeal did not address that issue. In my view a change of counsel is irrelevant because, in their words, "litigants cannot be allowed to revive lapsed rights on the sole ground that they have . . . changed their minds".

It seems to be well established that there is great importance in allowing a party to exercise the right to elect trial by jury if the exercise has not been made in a timely manner because of inadvertence. Assuming that is a primary value, I think the following principles should be adopted to simplify the analysis of other competing values in a particular case:

1. The time should only be extended if the applicant adduces evidence which establishes:

(a) that the applicant or the applicant's counsel made a decision before the deadline to deliver a jury notice but inadvertently failed to deliver it, or

(b) that there has been a fundamental change in the character of the action which justifies giving the parties a right to re-elect. I agree with the comments in Hoare as to what constitutes a fundamental change in the character of the action.

2. If inadvertence is relied on, the time should not be extended if the action has been placed on the trial list in accordance with rules 45.05 or 45.06 as this may delay the trial. If fundamental change is relied on then the time should not be extended if the change occurred before the action was placed on the trial list unless it occurred too soon before to allow the party to bring a motion extending the time.

Except for limiting the issue of prejudice to trial delay, these were the principles set down by the British Columbia Court of Appeal in Hoare. I think limiting the relevance of prejudice to trial delay would avoid the difficulty of knowing what constitutes prejudice in these cases and eliminate the potential difficulty and unpleasantness of proving it. It would simplify the process and ensure greater predictability.

Under these principles a re-opening of pleadings would not warrant extending the time unless there were amendments which fundamentally changed the character of the action.

A change of counsel would not be a fundamental change in the character of the action and would be irrelevant. Inadvertence could only be relied on where there was a change of counsel if the party or the previous counsel swore there was inadvertence on their part.

I believe that the adoption of these principles would promote the policy embodied in rules 3.02 and 1.04 as it would facilitate the most expeditious and least expensive determination of a proceeding on its merits.

Disposition of the Appeal

Applying these new principles, I find that there is no evidence before the court which establishes either of the above prerequisites. Consequently, I would allow the appeal and set aside the order granting leave to deliver a jury notice.

Appeal dismissed.