Court File and Parties
Court File no. CV-00-CV183951-0000
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRINITY ANGLICAN CHURCH
Plaintiff
-and-
MICHAEL SCOTT JANEIRO et al.
Defendants
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE WRIGHT
on May 11, 2015, at TORONTO, Ontario
APPEARANCES:
A. Sciacca Counsel for the Plaintiff
G. Brannan Counsel for M.S. Janeiro, M. Janeiro, E.S. Janeiro
M. Forget Counsel for Defendants, C. Ford and J. Ford
MONDAY, MAY 11, 2015
R E A S O N S F O R J U D G M E N T
WRIGHT, J. (Orally):
INTRODUCTION:
This is a motion brought by the defendants, Colin Ford and Joanne Ford, requesting leave of the Court to grant an order extending time to file a jury notice.
BACKGROUND:
I will now very briefly make reference to the background of this matter.
This matter arose out of a fire that took place on April 25th, 1998 at the Trinity Anglican Church in Mississauga. It has a lengthy and somewhat complicated history in both the Criminal and Civil Courts. I do not intend to review that history in any detail at this time, it is fully set out in the materials before me and on the Court record.
An action was commenced by way of a Statement of Claim on January 25th, 2000. By November 12th, 2014 after much negotiation and conversation, all parties agreed as to the quantum of damages, leaving only the issue of liability to be determined at trial.
On March 20th, 2015, the defendant served a jury notice. The plaintiffs and co-defendant, Michael Janeiro, are opposed to the action being tried by jury. I am told and I accept that co-defendant, Malcom Ford, is not opposed to the action being tried by jury.
Both counsel had directed my attention to case of Nikore v. Proper [2010] O.J. No. 1941 (Div Ct), counsel agree that it is the leading case and I have relied upon it heavily for guidance in this matter. Both counsel agree, an indeed it is set out in Nikore v. Proper [2010] O.J. No. 1941 (Div Ct) that the right of a trial by jury is an important right and one that will not be denied without cogent reasons.
The Divisional Court in that case set out the two key factors that must be taken into account in determining whether to permit the service of a jury notice after the close of proceedings, which is in fact, the matter before me today.
The circumstances of the delay must be considered; and,
Whether there is prejudice to the other side.
I will first turn to the issue of delay.
On March 20th, 2015, this matter was set down for a 15 day trial to commence on September 14th, 2015. Counsel was put on notice on that day that the defendants would be seeking to have the matter tried by jury. Plaintiff's counsel argues that they are caught short because they now only have four months to prepare for a jury trial that they knew nothing about. And secondly, they argue that currently the 15 days that has been set aside may have to be extended and offered up the possibility of an extra five days being needed, if in fact, the matter was heard before a jury.
Counsel for the defendants argue that the 15 days was set down after factoring in to account the potential of a jury trial. He further argues that the matter has significantly simplified since the more complicated issue of damages has been resolved.
It is agreed that there are no experts or things of that nature to deal with at the trial level.
The reality is, estimates for trial time are just that, they are estimates. Even today, counsel is only guessing that the matter would in fact take longer. It is a possibility, but in my view, it is always a possibility. Counsel provided no evidentiary basis for a submission that the matter would take longer than 15 days, other than commenting that jury trials tend to take longer. They do, I accept that. But there is no basis on the material before me to find that this matter is going to take significantly longer than what it is currently scheduled for. I find there to be no delay.
I will now turn to the issue of prejudice.
There is no presumption of prejudice. I am, however, mindful that the closer to trial the more likely that prejudice can and will be inferred. Counsel argues that they now only have four months to prepare for a potential jury trial. In reality, counsel were alerted to this possibility on March 20th, 2015, some six months before the trial date. Whether it is four months or six months, given that the issues have been significantly simplified and streamlined, I find that there is ample time to prepare for a trial, whether it be with or without a jury.
Counsel argues that had they known that this matter would proceed by a way of jury trial that the resolution around the issue of damages would have been very different, and in that way, they are prejudiced.
When I pressed counsel to tell me how that would have impacted that resolution, he could come up with nothing more than a generic response. I am mindful that there was no discussion one way or the other about a jury trial when damages were being discussed. However, it was open to experienced counsel to make that part of their negotiations if they saw fit to do so. They chose not to. I do not accept that they were taken by surprise and are thereby prejudiced.
Counsel also argues that there is no evidentiary basis on the material presented before me to make findings in favour of the defendant.
I disagree. I find that there is an ample evidentiary foundation upon which to draw inferences, on which inferences can and have been drawn.
CONCLUSION:
For aforementioned reasons, there will be an order for the extension of time for the service and filing of the jury notice.