Safranyos v. McHugh, 2015 ONSC 3957

CITATION: Safranyos v. McHugh, 2015 ONSC 3957

COURT FILE NO.: 09-11989

DATE: 2015/06/19

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dawn Safranyos, Shelley Lalonde, Maurice Lalonde, Paul Safranyos Sr., Sharon Safranyos, Sylvia Safranyos, Peter Safranyos, Madeline Smith and Edward Smith (Plaintiffs)

• and –

Daryl McHugh and the City of Hamilton (Defendants)

BEFORE: A. J. Goodman J.

COUNSEL: T.R. Shillington, Jonathan deVries, Patrick Brennan for the Defendant, City of Hamilton, Respondent

B.A. Percival Q.C. & Grant D. Bodnaryk for the Defendant McHugh, Appellant

No submissions on behalf of the Plaintiffs

HEARD: In Chambers

E N D O R S E M E N T

Introduction:

[1] This is a motion brought by the defendant, McHugh seeking leave to appeal the decision of Parayeski J. to the Divisional Court.

[2] On January 6, 2015, Parayeski J. heard oral argument and considered written materials in relation to a motion brought by the defendant, the City of Hamilton (“Hamilton”). Hamilton sought an Order striking the jury notice served by McHugh, and sought bifurcation of the trial between liability and damages.

[3] McHugh opposed all relief sought by Hamilton.

Background:

[4] This action, along with two other actions (Hamilton Court File Nos. 08-7591 and 09-12349 (“the actions”), all arise from the same motor vehicle accident that occurred at approximately 1:03 a.m. on June 16, 2007. In total, there are 23 plaintiffs (19 of them are FLA claimants), and the total damages claimed by all plaintiffs adds up to $10,650,000.00, plus costs and interest.

[5] A Jury Notice had been delivered by McHugh in the within action and in action 09-12349. At one stage, McHugh had conceded that s. 108(2) of the Courts of Justice Act (“CJA”) prohibits the actions being tried by a jury given that Hamilton is a municipality and remains a party to the actions.

[6] On August 14, 2013, on the consent of all parties, (including McHugh), Broad J. ordered that the trial of actions be tried together. According to the materials filed, the rationale for this relief was premised on the notion that these actions would have a common liability trial with the damages to follow as agreed upon or directed by the trial judge.

[7] The within action was set down for trial in August 2014. It was placed on a jury assignment court list as there was a jury notice on file.

[8] As a municipality defendant in these actions, and in order to traverse this case to a non-jury sitting, Hamilton brought a motion to strike out the jury notices in all of the actions and bifurcate the liability and damages issues.

[9] All of the plaintiffs supported Hamilton’s motion. McHugh opposed the bifurcation relief sought. However, despite his prior agreement that Hamilton’s presence precluded a jury trial, McHugh further opposed Hamilton’s request to have the jury notices struck out. McHugh’s position was that if the jury notices were struck out, it was not certain that he would be granted leave to re-deliver a jury notice if Hamilton was released from the action prior to trial.

[10] Justice Parayeski dismissed Hamilton’s motion to strike the jury notice and ordered that the trial should be bifurcated with a liability trial to proceed first, with the damages trials in this, and the two companion actions, to follow.

[11] McHugh seeks leave to appeal the “bifurcation” aspect of Parayeski J.’s Order. None of the other parties seek any appellate intervention.

Issues:

[12] Are there conflicting decisions on the matter involved in the proposed appeal? Does there appear to be good reason to doubt the correctness of the order? Is it desirable that leave to appeal be granted?

Positions of the parties:

[13] Counsel for McHugh submits that Parayeski J. erred in his application of the relevant case law and in her exercise of discretion in his granting of the relief at the motion.

[14] McHugh argues that there are conflicting decisions on this very point. McHugh submits that by upholding the validity of the jury notice, Parayeski J. erred in law by ordering bifurcation despite McHugh’s objections and lack of consent. This is directly contrary to the 2010 Ontario Court of Appeal decision in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126.

[15] In response, Hamilton submits that the impugned Order is a discretionary and procedural one with respect to a pending trial of a complex personal injury matter. There is no reason to doubt the correctness of the Order, nor does it have any implications that go beyond the litigation it was rendered in. As such, there is no reason for leave to appeal to be granted.

[16] Hamilton says that no direct evidence has ever been tendered by McHugh that suggests that Hamilton will be released from the Actions prior to trial as it is currently constituted. Now, it is submitted that McHugh directly repudiates his earlier position, which was accepted by Parayeski J., and instead claims that the filing of a jury notice must be treated as conceptually synonymous with a trial jury, thus triggering the narrow prohibition laid down in Kovach against bifurcating jury trials.

[17] Hamilton submits that McHugh should not be allowed to directly contradict the very argument he deployed to preserve his jury notice before Parayeski J. for the purpose of appealing the bifurcation aspect of His Honour’s decision.

[18] Hamilton submits that the defendants cannot justify the test for leave to appeal as there are no conflicting decisions on the subject of the proposed appeal, it is not desirable that leave be granted, there is no reason to doubt the correctness of the order and the matter does not involve issues of importance beyond the parties.

Legal principles

[19] An appeal from an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court with leave.

[20] Rule 62.02 (4) provides that leave to appeal shall not be granted unless:

A. there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

B. there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[21] I have considered the legal principles on a motion for leave to appeal an interlocutory order that have been addressed by many Ontario courts, both at the Superior and Appeal Court levels. Under Rule 62.02(4)(a), the authorities postulate that an exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a “conflicting decision”. However, it is settled law that where there are differing principles applied to the exercise of judicial discretion in similar cases, then the decisions are conflicting. If the motions court judge determines that there are conflicting decisions, he or she must be satisfied that it is desirable that leave be granted.

[22] While the conditions under Rule 62.02(4)(b) are conjunctive, the judge hearing the application must not only have good reason to doubt the correctness of the decision and must also be satisfied that the matters involved are of such general importance that leave should be granted.[^1]

[23] In determining whether there is a good reason to doubt the correctness of the decision, it is not necessary for the moving party to convince the Court that the decision it seeks to appeal from is wrong or probably wrong. The threshold for this prong of the test is that the Court must be satisfied that the correctness of the order is open to very serious debate. [^2]

Discussion:

[24] I have considered the written materials filed from the hearing, the history of the litigation, the facta and written submissions, all in an effort to allow me to determine whether leave ought to be granted. I am cognizant that my role is extremely limited and any conclusions that I reach here are merely to address the merits of this leave application.

[25] McHugh argues that there is a conflicting decision in Ontario which demonstrates a difference in the principles chosen by Parayeksi J. to guide him in his decision. McHugh submits that there is jurisprudence from the Court of Appeal on point. The precedent has been set and the directive from the Court of Appeal in Kovach is a binding on a motions judge in the Superior Court of Justice.

[26] Hamilton says that McHugh’s position on this motion expressly contradicts the position he took before Parayeski J. In the proceedings below, McHugh argued that there was a distinction between an actual trial by jury and the procedural step of filing a jury notice, and that this should allow his jury notice to stand despite s. 108(2) of the CJA. This argument was accepted by Parayeski J., who specifically held that “the Courts of Justice Act does not prohibit the filing of a jury notice. It only prohibits trial by jury should the municipality remain a party.”

[27] Hamilton argues that Kovach does not apply to these Actions. The order of Parayeski J. does not bifurcate a jury trial – it bifurcates a trail that, as it is currently constituted (and has always been constituted) must be a non-jury trial. With respect, I must disagree.

[28] It is not debated that Kovach stands for the principle that, absent the consent of all parties, where and action is to be tried by a jury there is no jurisdiction to order a bifurcation that would result in different juries hearing and deciding liability and damages separately.

[29] There is a valid jury notice still in place and in effect. In Kovach, the Court of Appeal addressed the issue and stated at paras. 37 and 42:

The key is prejudice to the rights of a party in the litigation. In the absence of statutory or rules-based authority to do so, there are sound reasons in principle for adopting the view that a court does not have jurisdiction to bifurcate issues in a jury trial – or, to put it in the words of Justice Morden in Elcano – “that the power may not be exercised where one of the parties has served a jury notice.”

The practice in Ontario has long been understood to preclude the bifurcation of trials where a jury notice has been served in the absence of consent. To reverse that practice, as the appellants seek, would be a major change in the law. In Ontario, it is primarily the role of the Rules Committee to develop new rules respecting the practice and procedure in civil matters. In doing so, it take into account the needs of the system viewed through the experience of judges and practitioners across the province. Much better that a stark change in practice, such as that proposed by the appellants-reversing a long-standing and fundamental right to trial by a single jury- be left to the legislature of the Rules Committee – a responsibility that the Rules Committee has now fulfilled.

[30] While McHugh’s right to a trial by single jury as mentioned in Kovach may eventually be statutorily barred, my reading of the decision does not make the distinction in the process at this juncture, as Hamilton urges. The Kovach decision creates an unequivocal condition precedent. If there is a valid jury notice in place, and if the parties do not consent to the bifurcation of the issues, it seems that the Superior Court of Justice does not have the jurisdiction to bifurcate the trial of liability and damages.

[31] Justice Parayeski ordered a bifurcation of the issues of liability and damages in the Actions. In doing so, Parayeski J. made reference to the inherent jurisdiction of the court to control its own process:

Of late, the courts have reasserted their ancient right to control their own processes by means of taking a practical approach when it comes to things like scheduling trials. I believe that this can and should extend to the issue of bifurcation. It seems to me to make a good deal of practical sense to bifurcate the issues of liability and damages. There will almost inevitably be savings in terms of legal costs and court time should that occur.

[32] I agree that Parayeski J.’s decision is a particular and reasonable response to the unique circumstances created by the interaction of previous court orders, the participation of a municipality as a defendant and McHugh’s insistence or vacillation on his position about how the composition of these Actions might be different at trial should he opt to release Hamilton from the litigation.

[33] However, the jury notice is still live. The legitimacy of the jury notice had been considered by the learned motions judge and left intact for the time being to preserve McHugh’s rights should Hamilton be let out of the proceedings. Frankly, it seems to me that by now, McHugh ought to have already assessed and determined his position on this issue, in order to effectively manage the trial and the complexity of the issues.

[34] Indeed, that is what the practical effect of Parayeski J.’s order is attempting to accomplish. However, that is not the test here.

[35] I agree with McHugh that there is good reason to doubt the correctness of Parayeski J.’s decision, based on the Kovach decision, which is “conflicting law”. I am satisfied that McHugh has discharged the onus and demonstrated that there is an appellate court case that raises conflicting decisions on the principles applicable for a motion for bifurcation. In my view, this satisfies the first prong of the Rule 62.02(4) test.

[36] While Kovach does establish a principle applicable to this case, its utility may be the subject of serious debate. Again, it bears noting that there is the very real practical and important consideration of effectively controlling the litigation proceedings in the Superior Court in an orderly and reasonable manner as discussed by the learned motions judge. Whether this valid concern is sustained remains a consideration for the reviewing court in the unique circumstances of this case.

[37] In view of my conclusions, I need not consider the second prong of the test under Rule 62.02(4)(b).

Disposition:

[38] In my opinion, the decision in this case raises an issue that warrants resolution by the appellate Court. McHugh’s motion for leave to appeal is granted. Costs of this motion are reserved to the Divisional Court panel hearing the appeal.

Justice A. J. Goodman

Date: June 19, 2015

[^1]: Greslik v. Ontario Legal Aid Plan of the Law Society of Upper Canada, 1988 CarswellOnt 436 (Div. Ct) at para. 7.

[^2]: Ash v. Lloyd’s Corporation (1992), 1992 7652 (ON SC), O.J. No. 894 (Gen.Div.), as cited in Judson v. Mitchele, 2011 ONSC 6004, at para. 15. See also Brownhall v. Canada (Ministry of National Defence), 2006 7505 (Sup Ct.) at para. 30.