NEWMARKET COURT FILE NO.: CV-08-088788

DATE: 20120109

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WAYNE ARSENAULT and DEBBIE ARSENAULT and MADISON ARSENAULT, Plaintiffs

AND:

BAJA MOTORSPORTS LLC and CANADIAN TIRE CORPORATION, LIMITED, Defendants

BEFORE: MULLIGAN J.

COUNSEL:
Shen Subramaniam, for the Plaintiffs
Colin M. Chant, for the Defendants

HEARD: December 21, 2011

ENDORSEMENT

[ 1 ] The plaintiffs first seek leave to amend the Amended Statement of Claim. The defendants do not oppose this aspect of the relief sought. The plaintiffs then seek leave to file a jury notice as a consequence of the amendments to the Amended Statement of Claim. The defendants oppose the request to file a jury notice at this late stage of the proceedings.

BACKGROUND FACTS

[ 2 ] The following background facts will provide context for the discussion that follows. One of the plaintiffs, Wayne Arsenault , was injured in a motor-vehicle accident in May of 2007. With the assistance of a previous law firm the plaintiffs commenced an action in April of 2008. The defendants delivered their Statement of Defence on September 8, 2008. No jury notice was filed and the time within which to file a notice expired on September 18, 2008. In October of 2009 the plaintiffs changed law firms. In June of 2010 the plaintiffs obtained leave to amend their Statement of Claim to add allegations of negligence, breach of contract, breach of warranty and breach of the Sale of Goods Act against the defendants. Examinations for discovery of the parties were conducted on various dates, in 2009, 2010 and 2011. On April 21, 2011 plaintiffs’ counsel filed a Trial Record certifying that this was a non-jury action. On September 13, 2011 counsel for both the plaintiffs and the defendants appeared at trial scheduling court and spoke to this matter which was on the non-jury list. They requested a non-jury trial date for the May 2012 sittings. This matter is scheduled for a pre-trial conference on April 17, 2012.

THE PROPOSED AMENDMENTS TO AMENDED STATEMENT OF CLAIM

[ 3 ] The proposed amendments to the Amended Statement of Claim increase the quantum of damages sought from $1 million dollars to $2.5 million dollars. The relief sought also includes a claim for punitive damages expanding the scope of the negligence claims against the defendants. The defendants do not oppose the amendments to the Amended Statement of Claim, but acknowledge that if the amendment s are granted they will be required to respond to the allegations of punitive damages.

RIGHT TO A JURY TRIAL

[ 4 ] There is no doubt that the right to a jury trial in civil actions in the Superior Court is an important and substantive right. Rule 47.01 provides:

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, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.

[ 5 ] However, leave of the court is required to amend the pleadings and file a jury notice once the matter has been set down for trial.

JURY TRIALS

[ 6 ] David Watt explored the function of juries in the criminal context in his book Helping Jurors Understand (Toronto: Carswell, 2007). As Justice Watt stated at pp 2-3 the main functions of the jury in a criminal trial are to act as:

• A fact finder;

• The conscience of the community;

• A safeguard against arbitrary or oppressive laws and law enforcement;

• An educative institution;

• An institution that legitimizes the criminal justice system.

[ 7 ] R. Blake Brown traced the early history of the jury system in Canada in his text : A Trying Question the Jury in 19 th Century Canada , (Toronto: The Osgoode Society for Canadian Legal History, 2009). As the author states at page 44-45:

The desire of the first lieutenant governor, John Graves Simcoe, to establish a truly ‘English’ colony helped shape the early legal system of Upper Canada. Upper Canada had inherited the judicial system of Quebec, but the colony soon established a court structure more in line with English practice.

The legislature’s decision to make An Act to Establish Trial by Jury [S.O. 1792, C.2.] one of its first statutes reflected the importance of the jury to Upper Canada’s early legal culture. The legislation asserted trial by jury was ‘one of the chief benefits to be attained by a free constitution’.

[ 8 ] Under limited circumstances, in a civil trial, a party has the right to request a trial judge to discharge a jury. Often such applications are brought on grounds of complexity. In Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665, the Court of Appeal acknowledged the important statutory right to a jury trial. As Austin J.A. stated at para. 52:

The remaining issue in the appeal challenges the trial judge’s discharge of the jury upon grounds of complexity and public commentary. The law in this regard is clear. The right to a trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in a best position to determine how to exercise that power. The decision of the trial judge to keep or discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously, or on wrong or incapable principles.

DISCUSSION

[ 9 ] In examining the plaintiffs request to file a jury notice at this late stage in the proceedings it is useful to examine the reasons for such request on the eve of trial. The entirety of the Plaintiffs’ basis for this request is captured in paragraphs 30, 31 and 32 of their Affidavit in support of this motion.

[30] The Plaintiff’s previous lawyer did not file a jury notice when this action was commenced.

[31] I verily believe that this is a fit and proper case where the issues of liability should be tried by a jury and the issues of damages be assessed by a jury. The pleadings will be re-opened if the court grants the Plaintiffs leave to amend the Amended Statement of Claim. The Plaintiffs will therefore be within their rights to serve and file a jury notice at that time.

[32] No prejudice will be suffered if the Plaintiffs are granted leave to file a jury notice in the within action and if the within action is directed to be placed on the jury trial list.

POSITION OF THE PARTIES

[ 10 ] The plaintiffs rely on Freeman v. Parker [1956] O.J. 138 to serve a jury notice once leave is granted to amend the claim. As Gale J. said at paragraph 8:

It is my opinion, therefore, that if pleadings are re-opened to permit amendments and nothing is said about limiting the effect of the order, the right of any party to thereafter serve a jury notice pursuant to provisions of section 57 of the Act is revived.

[ 11 ] In Nardo v. Fluet 1993 8628 (ON SC) , [1993] 13 O.R. (3d) 220 Whalen J. reviewed a number of decisions as to whether or not a jury notice could be issued in these circumstances and concluded at para. 11: “The approach adopted by Mr. Justice Gale in Freeman v. Parker has not been evenly or clearly applied by subsequent courts.” In Nardo the plaintiff amended its Statement of Claim to increase the amount claimed. The defendant responded with a jury notice. In granting an order to strike the jury notice, Whalen J. stated at para. 24:

It has been recognized that a party seeking to extend time for filing a jury notice should not be denied the substantive right to jury, without cogent reasons, which involves a consideration of whether there has been unconscionable delay in applying or where the opposing party is likely to be prejudiced.

[ 12 ] The issue of re-opening pleadings for a limited purpose was addressed by Swinton J. in Macdonald v. Zurich Life Insurance Co. Of Canada 2003 CarswellOnt. 2536 . Swinton J. denied the defendants’ motion to strike a jury notice. On the facts before her the amendment sought was to add a new party to the proceeding, giving that party the right to serve a jury notice. Swinton J. concluded at para 8: “In my view, this is not a case where it can be inferred that a leave to amend the pleadings was granted only for a limited purpose.”

[ 13 ] The defendants submit that it will be prejudiced if a jury notice is served at this late stage of the proceedings. They have proceeded throughout as if there was to be no jury. In Palmer v. Ottawa General Hospital (1999) O.J. 4716 , Master Beaudoin [as he then was] reviewed the principles in Freeman v. Parker and other decisions including Nardo v. Fluet , and stated at para. 13 :

After reviewing these authorities, the Court accepts the proposition set forth in the Nardo decision. In addition, our courts appear reluctant to consider pleadings reopened for all purposes where the proceedings are not at the early stage. Where the courts have struck the jury notice as being out of time, discoveries have been completed, a certificate of readiness has been served or the matter has been set down or scheduled for trial.

[ 14 ] The strategy of re-opening pleadings to amend the claim, and the issue of presumption of prejudice was discussed by Ryan A. Murray in: Jury Notice Basics for New Lawyers, Journal of the Ontario Trial Lawyers Association, April 2009. As the author stated at para. 35:

Where counsel has missed the window to serve their jury notice and the pleadings have closed, one method to re-open the window is by amending the claim.

[ 15 ] After reviewing the MacDonald decision the author suggests:

Other caselaw suggests that changing a case from judge alone to a jury after the completion of all procedural steps necessary to make the action trial ready raises a presumption of prejudice. Therefore if the matter is ready for trial the party who wishes to serve a jury notice will have to rebut a presumption of prejudice before any jury notice can be filed.

[ 16 ] In Resnick v. Doria [2005] O.J. 1876 , Stinson J. reviewed a number of authorities including Nardo v. Fluet and other cases where courts have either struck or allowed jury notices depending on their particular facts. Based on Stinson J.’s decision at paragraph 14 and 15, a number of guiding principles can be distilled to assist in determining whether or not a jury notice should be allowed after amendments to the pleadings.

1. Is the amendment for a limited purpose or does it alter the character of the case? Is it merely increasing the amount of damages or is it articulating a new theory of the case?

2. Does the proposed amendment invite a response from the opposite party?

3. At what stage of the proceedings is the proposed jury notice being offered in terms of its potential prejudice to the opposite party?

4. Are the amendments minor amendments with a view to re-open pleadings to permit a jury notice to be filed?

5. Would the effect of the amendment be to add a new party to the proceeding?

[ 17 ] To that list I would add a sixth. Is there a principled basis for the plaintiffs’ request to serve a jury notice this late in the proceedings?

[ 18 ] I apply these principles to the case at bar as follows:

(a) Whether the amendment was for a limited purpose?

[ 19 ] The purpose of the proposed amendment is to increase the claim for damages from $1.0 million to $2.5 million and to add a claim for punitive damages therefore expanding the negligence claim. In my view, this is the type of amendment that has a limited purpose.

(b) Does the amendment invite a response?

[ 20 ] The amendment adding a claim for punitive damages does invite a response from the defendants.

(c) The timing of the jury notice.

[ 21 ] As a review of the facts in this case indicates, this is very late in these proceedings. The jury notice issue is raised after the trial record has been passed and on the eve of trial. I accept the defendants’ submissions that prejudice to the defendants can be inferred. The plaintiff had numerous opportunities to serve a jury notice including at the commencement of the proceedings, or when new counsel took over, or more significantly when the plaintiff was previously granted leave to amend the Statement of Claim in 2010.

(d) Whether the amendments are minor with the view to re-open the pleadings?

[ 22 ] The claim for damages has more than doubled and the claim for punitive damages has been added. I am not satisfied that the amendments are minor but they do serve a limited purpose.

(e) Are new parties being added?

[ 23 ] Clearly no new parties are being added here. When new parties are added, the new party presumptively has the right to serve a jury notice and courts have determined that it would be unfair that the existing parties would not have the same right in those circumstances.

(f) Is there a principled basis for serving a jury notice at this late stage of the proceedings?

[ 24 ] The affidavit in support of the Motion to serve a jury notice does not articulate a cogent reason for the delay in requesting the service of a jury notice at this late stage of the proceeding. It does not rebut the presumption of prejudice to the defendants.

CONCLUSION

[ 25 ] The plaintiff seeks to file a jury notice very late in the proceedings. The statement of claim was previously amended, pleadings have been noted closed and the trial record has been passed, certifying that this case is a non-jury matter. No new parties are being added to these proceedings. In my view the amendments sought to the Amended Statement of Claim are for a limited purpose. Under the circumstances the plaintiffs have not rebutted the presumption of prejudice to the defendants in seeking to file a jury notice on the eve of the trial. The plaintiffs’ motion to file a jury notice is dismissed. The plaintiffs’ motion to amend the Amended Statement of Claim is granted in accordance with the plaintiffs’ proposed Amended Amended Statement of Claim filed with the motion record. The defendants are grant leave to respond to these amendments within 20 days of the release of this endorsement.

COSTS

[ 26 ] Costs as agreed are fixed at $3,800 all inclusive to the successful party, the defendants, payable forthwith.

MULLIGAN, J.

Date: January 9, 2012