SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV -12-461004
MOTION HEARD: 20150107
REASONS RELEASED: 20150818
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
SOFIA ALELITA C. PENA, Litigation Administrator of the Estate of MIGUEL VICENTE PENA, deceased, MIGUEL VICENTE PENA II, a minor by his Litigation Guardian, SOFIA ALELITA C. PENA, SOFIA ALEUT A C. PENA, personally, MARGARITA A. PENA, MARIA ESTELA PENA MALI CSE, JOSE A. PENA, ANGELINA PENA LICUP, ANTONIO A. PENA, and MILAGROS PENA HERRERA
Plaintiffs
and -
ONTARIO CORPORATION NUMBER 261660 operating as U-PAK DISPOSALS LIMITED and LOGESWARARAJAN GUNAESWARARAJAH
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Michael Burgar Fax: 416.703.8499
- for the Moving Plaintiffs
Audrey P. Ramsay Fax: 416.367.8821
- for Defendants
RELEASED: August 18, 2015
Reasons for Decision
I. Overview
[1] On September 1, 2011, Miguel Vincente Pena Sr. was driving in the westbound lanes of the QEW highway, near the Mississauga Road exit.
[2] A fire extinguisher on the back of a garbage truck driving ahead of him became loose, fell off the vehicle, and bounced across the highway. The extinguisher crashed through the front windshield of the vehicle driven by Mr. Pena. He was killed instantly.
[3] Mr. Pena was 43 at the time of his death, and married to the plaintiff, Sofia Pena. The couple had a son, Miguel Vincente Pena Jr., born August 4, 2000. Miguel Jr. is autistic and has special care needs.
[4] The family seeks damages flowing from this most unfortunate accident.
II. Motion
[5] This motion is brought by the plaintiffs seeking an Order that:
(a) the statement of claim be amended,
i. to include a claim for punitive damages,
ii. to plead alleged admissions and res judicata, because of a guilty plea entered by the corporate defendant in provincial offence proceedings arising from the accident, and
iii. to provide further particulars of the income loss claim advanced on behalf of the Family Law Act claim of Sofia Pena; and,
(b) for leave to permit late delivery of a jury notice.
[6] Counsel for the defendants received instructions to oppose all portions of the motion.
III. Proceedings to Date
[7] The statement of claim was issued less than one year after the accident, on August 10, 2012. The claim raises issues under a number of heads of damages, including non-pecuniary general damages claims under the Family Law Act for the loss of care, guidance and companionship; the loss of the future care Miguel Sr. would have provided to his son had he lived; the loss of financial dependency claims related to the income stream that would have been expected from Miguel Sr. had he lived; the loss of career opportunities for Sofia Pena because of how her life has changed since the accident; and other economic losses and claims, “which are still being investigated, with expert assistance”.
[8] The statement of defence was delivered on or about January 22, 2013.
[9] Apparently there were delays before conducting examinations for discovery in the main action because of the schedules of the lawyers, and the issuance of a third party claim by the defendants. Those third party claims have been settled.
[10] The examination for discovery of the plaintiff, Sofia Pena, on her own behalf, as a representative of her deceased husband's estate, and as litigation guardian for Miguel Jr., was conducted on May 20, 2014.
[11] The discoveries of the defendants and third party were conducted on May 21, 2014. It is submitted that the plaintiffs and their lawyers did not learn until those discoveries that the corporate defendant had entered a guilty plea to a provincial charge related to the detachment of the fire extinguisher from the garbage truck at the time of the accident. In particular, the plaintiffs assert that this information was not available to the plaintiffs prior to May 21, 2014.
IV. State of Evidence
[12] The discoveries of the defendants on May 21, 2014 disclosed that the corporate defendant had no definitive evidence or information as to whether a necessary “R-clip” or pin was in place on the bracket that held the fire extinguisher in place on the morning of the incident before the garbage truck left the yard and was on the road.
[13] Having learned these facts, the plaintiffs seek to make a number of consequential amendments to their pleadings as outlined above.
V. Legal Issues
[14] With respect to when amendments may be made, Rule 26 provides as follows:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.02 A party may amend the party's pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person's consent; or
(c) with leave of the court.
[15] Counsel for the plaintiff submits that the right of the plaintiffs to amend the statement of claim is mandatory, on such terms as are just, unless prejudice would result that cannot be compensated for by costs or an adjournment. Their position is that this action is at an early stage and there is no prejudice. It is therefore well-established that the right of the plaintiffs to amend is presumptively approved, unless the defendants can show that the amendments are untenable at law. The plaintiffs need not tender evidence to prove the proposed new allegations. The facts pleaded are to be taken as true. The same approach is taken to tenability under Rule 26 as is followed under Rule 21.
References:
Schembri v. Way, 2012 ONCA 620, at paras. 26-27, 33, 45
Shubaly v. Coachman Insurance, 2012 ONSC 5455, at para. 5
[16] While noting that the proposed amendments do not add parties or raise a new cause of action, counsel argues that it is well-established that an amendment to add punitive damages does not raise a fresh cause of action.
References:
Whiten v. Pilot Insurance Co., 2002 sec 18, at paras. 67, 82
Britton v. Manitoba, 2011 MBCA 77, at paras. 34-46
[17] Counsel for the defendants submits that the amendments ought to be refused due to the delay in bringing this motion until after the holding of examinations for discovery.
[18] In the factum filed by the defendants the following assertions are made:
The case law in Ontario has established that plaintiffs seeking aggravated, and/or punitive damages must particularize the independent actionable wrong or wrongs upon which they are relying and the material facts in support of them. They should do the same in relation to the conduct they seek to portray as “harsh, vindictive, reprehensible, malicious” and the like.
In Marshall v. Watson Wyatt & Co., [2002 13354] the Ontario Court of Appeal established three elements required for punitive damages, to succeed, as follows:
i. The plaintiff must show that the defendant’s conduct is exceptionally harsh, vindictive reprehensible or malicious;
ii. The plaintiff must establish that the defendant committed a separate or independent actionable wrong, causing damage to the plaintiff;
iii. Punitive damages may only be awarded if the compensatory damages are considered to be insufficient to express repugnance at the defendant’s conduct, and to punish and to deter.
[19] In my view, if the facts alleged by the plaintiff are proven at trial, I am satisfied that it is possible that the trial judge (or jury)will find these three elements have been met. As a result, I see no reason on this ground, not to permit the amendments sought.
Relationship between Negligence and Breach of Statutory Duty
[20] Section 84.2 (1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, provides that:
"Where any part of a vehicle or anything affixed to a vehicle becomes detached from the vehicle while it is on a highway, the driver of the vehicle is guilty of an offence".
[21] R v. Saskatchewan Wheat Pool, 1983 21 (SCC), 1983, Carswell Nat 92 [1983] 1 S.C.R. 205 at paras. 35 to 38, and para. 42 is relied upon in support of the proposition that “Proof of a statutory breach causative of damages may be evidence of negligence, but does not necessarily amount to prima facie proof of negligence.”
[22] Relying upon the decision in Whiten plaintiff’s counsel acknowledges that while the provincial offence conviction of the corporate defendant is not conclusive of the plaintiffs' right to claim punitive damages, it is a factor for consideration at trial on the subject of the right to punitive damages and the appropriate quantum of those damages.
[23] I agree. I accept that it is well-established in Ontario that a motor vehicle negligence claim may attract punitive damages, where the conduct of the defendants goes beyond mere negligence and shows a reckless disregard for the safety of others.
Res Judicata
[24] The doctrine of issue estoppel precludes the relitigation of issues decided in a prior proceeding. In the leading text by John Sopinka, J. et al., The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at paras. 19.78 -19.94, the authors note that issue estoppel has four requirements:
i. The issue must be the same as the one decided in the prior matter;
ii. The issue must be litigated and decided in the prior proceeding and its resolution was necessary to the result;
iii. The prior judicial decision must have been final; and
iv. The parties to both proceedings must be the same (mutuality).
[25] A conviction for careless driving and the levying of a fine has been held to not preclude an award for punitive damages. It is open to a judge or jury to find that an award of punitive damages does not amount to double punishment in such circumstances.
Reference: McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 (C.A.) at paras. 53-70
[26] However, I have some concern with the argument that the guilty plea of the corporate defendant “gives rise to a circumstance where the defendants should not be permitted to relitigate the facts essential to the provincial offence conviction.” In this respect, the plaintiff refers to the decisions in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 and Andreadis v. Pinto (2009), 2009 50220 (ON SC), 98 O.R. (3d) 701 (S.C.) as well as Caci v. MacArthur, 2008 ONCA 750 .
[27] In my view, having considered the decision in Fontaine v. British Columbia, 1998 814 (SCC), [1998] 1 S.C.R. 424, it is tenable and fair for the plaintiffs to amend and plead that the facts disclose circumstances, which prima facie establish negligence on the part of the defendants. The effect of this presumption, or effective shift in the burden of proof, is properly addressed at trial. It is premature and inappropriate to deal with this issue at the pleadings stage.
[28] It seems to me that the determination of that issue is best made by the trial judge, but that it ought to be permissible for the plaintiffs to plead such a position on the law.
[29] As well, having regard to all the circumstances of this case, I am unable to accept the defendant’s argument that there has been undue delay in bringing this motion to amend the pleading or in seeking to now deliver a jury notice.
Family Law Act Provisions
[30] Pursuant to section 61 (1) of the Family Law Act, R.S.O. 1990, c. F.3 specified family members such as, children, grandchildren, parents, grandparents, brothers and sisters, may maintain an action for pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed.
[31] Subsection 61 (2) of the Family Law Act specifies that the damages recoverable by the surviving members may include:
(a) actual expenses reasonably incurred for the benefit of the person injured or killed;
(b) actual funeral expenses reasonably incurred;
(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
(d) where, as the result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
[32] The Defendants argue:
- The courts in Ontario have established principle that Family Law Act claims are derivative in nature.
Riddell v. Slattery Estate (1988), (sub nom. Coombs v. Flavell) 1988 CarswellOnt 26 (Ont. C.A.), at para. 1257.
- The Ontario Court of Appeal has established that the approach to take in the valuation of income loss if there are two income earning family, which is adjusted in circumstances of sole dependency.
Nielsen v. Kaufmann, (1986), 54 O.R. (2d) 188, 1986 2717 (Ont. C.A.), at p. 10
Hechavarria v. Reale, 2000 22711 (Ont. S.C.J.), at paras. 19-20,
- A Family Law Act plaintiff's claim for direct financial loss resulting from a deceased's death consisting of loss of earnings or income because of her inability to work is distinct from the usual claim for loss of financial support under s. 61 (1) of the Family Law Act.
Fiddler v. Chiavetti, 2010 ONCA 210, (Ont. C.A.) at para. 58,
[33] Whether a punitive damages claim is prevented by these provisions in my view remains, at worst, an open question. Similarly, an issue on whether any portion of the added claims is statute barred, is best preserved to be addressed by the trial judge, or on a summary judgment motion.
[34] Counsel for the plaintiff referred me to the 2010 decision of Justice C.J.Horkins in Dimartino v. Gacek, 2010 ONSC 2124, 83 C.C.L.I. (4th) 311; 2010 CarswellOnt 2138; 187 A.C.W.S. (3d) 348.
[35] There, at the opening of trial her honour outlined these findings in allowing an amendment to the statement of claim at that late stage. At that point, the defendant insurers, RBC took the position that the proposed amendment was a new cause of action and since the two year period has expired there wass a presumption of prejudice that would result from the amendment that could not be compensated for with costs or an adjournment. In this case the Court determined to reject RBC's positionand observed:
19 First a claim for any type of damages, including aggravated, is not a cause of action. It is a remedy and it "does not stand alone." See Ricard v. Canadian National Railway Co., [2002] O.J. No. 3832 at para. 2.
20 I adopt the following statement in Atlantic International Trade Inc. (c.o.b. Soltani & Associates) v. Georgian College of Applied Arts and Technology, [2008] O.J. No. 2385 (S.C.J.) at para. 43:
A claim to aggravated or punitive damages is not a cause of action in and of itself. The proposed amendment reflects a change in the damages alleged to have arisen as a result of the conduct complained of. The cause of action itself has not changed.
21 Counsel for RBC relies on Ascent Inc. v. Fox 40 International Inc., [2009] O.J. No. 2964 where at para. 3 the Master offers the following definition of a cause of action:
A "cause of action" has been defined as a "factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The key is whether substantially all of the material facts giving rise to the "new cause of action" have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action. A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based.
22 The "factual situation" that entitles the plaintiffs to assert a claim against RBC is the existence of a policy of insurance issued by RBC, the plaintiffs' entitlement to claim accident benefits under this policy, RBC's handling of the claims and decision to deny the benefits.
23 The plaintiffs sued RBC seeking paying of the benefits refused. The proposed amendment to claim aggravated damages relies on the same "factual situation". The fact that aggravated damages will focus more on RBC's handling of the claims and the basis for the denial, does not mean that the claim for aggravated damages should be treated as a new cause of action.
[36] Here the general facts of the fatality have been known from the outset. I see no basis for any limitations issue as the reasonable “discoverability” of the real possibility of a missing pin arose upon the holding of the examinations for discovery.
The Trustee Act Impact
[37] Justice Epstein of the Ontario Superior Court of Justice that she then was in 2000, considered the interaction in claims made following a death between the Family Law Act, and the Trustee Act in George v. Harris; 2001 28235 (ON SC), 204 D.L.R. (4th) 218; [2001] O.T.C. 637; 12 C.P.C. (5th) 272; 41 E.T.R. (2d) 27;107 A.C.W.S. (3d) 9232000] O.J. No. 2127; [2000] O.T.C. 411; 97 A.C.W.S. (3d) 616.
[38] Her reasons, which included the following paragraphs with respect to attacks on the pleading in an action involving claims arising from the death of Dudley George:
7 When considering motions under this rule courts have adopted the test articulated by the Supreme Court of Canada in Operation Dismantle Inc. et al. v. The Queen et al. (1985), 1985 74 (SCC), 18 D.L.R. (4th) 481 to the effect that "the facts pleaded are taken as proved. When so taken, the question is: do they disclose a reasonable cause of action, i.e., a cause of action 'with some chance of success' ... or ... is it 'plain and obvious that the action cannot succeed?' "
8 Courts have held that difficult or novel questions of law or fact or issues not fully settled in the jurisprudence should not be decided upon in motions of this nature. Similarly, a court will not grant a motion on a preliminary question of law where the relevant statutory language is unclear or where the matter is one of first impression. The proper time for the determination of such issues is at trial. See: Air India 182 Disaster Claimants v. Air India (1987), 1987 4125 (ON SC), 62 O.R. (2d) 130; Progressive Casualty Insurance Co. v. Saygili (1999), 1999 15092 (ON SC), 46 O.R. (3d) 10; Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) and Moriarity v. Slater (1989), 1989 4141 (ON SC), 67 O.R. (2d) 758 (H.C.J.).
9 Finally, it is clear that the onus of proving that it is 'plain and obvious' that there is no reasonable cause of action, or satisfying the court that the case is beyond doubt is on the moving party and the onus is heavy.
17 The crux of the argument advanced on behalf of the plaintiffs is that the Trustee Act preserves the right of an estate administrator to sue for damages for pain and suffering and other "non-diminution injuries". In this action the estate is not claiming damages for the death of Dudley George or for his loss of expectation of life. It is claiming for damages on behalf of Dudley George for the pain and suffering he sustained between the time he was injured and when he died. Such a claim is contemplated by section 38(1) of the Trustee Act. In any event, it is not 'plain and obvious' that such a claim must fail.
18 With respect to the plaintiffs' claim under the Trustee Act for punitive, exemplary and aggravated damages, since the Act is silent on whether those types of damages are available to claim on behalf of the estate and there are no reported cases in which the court has expressed a view on the issue, it, again, is not plain and obvious that the claim must fail. Therefore, it is not appropriate to strike this portion of the claim at this stage.
[39] Following a careful and detailed examination of the case before her, Justice Epstein focussed on the impact o the provisions of the Trustee Act:
29 I now turn to the claims under the Trustee Act. Every Canadian jurisdiction has passed legislation that permits actions to survive for the benefit of a deceased's estate. The various statutes effectively permit an estate to recover losses in respect of which the deceased would have recovered had he survived to pursue the claim. See: S.M. Waddams, The Law of Damages, (Toronto: Canada Law Book, 2000) at. Para. 12.10.
30 The provisions of the statutes differ from province to province. Among other things some provinces exclude claims for certain specific types of damages. Others are silent on the point. Under the Trustee Act the only restrictions specified by the legislators is that an administrator cannot sue for libel and slander and cannot recover damages for the death or for loss of expectation of life.
34 I now turn to the claim under the Trustee Act for punitive, aggravated and exemplary damages. The defendants rely heavily on the decision of the British Columbia Court of Appeal in Allan Estate v. Co-operators Life Ins., 1999 BCCA 35, [1999] 8 W.W.R. 328 (B.C.C.A.) ("Allan"). In Allan, the court, in considering whether the plaintiff could advance a claim for punitive damages under the British Columbia equivalent of the Trustee Act, the Estate Administration Act, (the "EAA"), started with an analysis of the nature of punitive damages. The court observed at p. 348 that punitive damages have nothing to do with compensating the plaintiff. "They are designed to punish the defendant because the defendant's behaviour was not only wrongful or tortious, but was 'harsh, vindictive, reprehensible and malicious' and 'deserving of condemnation and punishment'". Turning to the EAA, the court analyzed the specific exclusions and "from the exclusions" found that the scope of the EAA could be determined. The court concluded that punitive damages do not fall within the category of damages for diminution of the personal estate of the deceased and therefore could not be recovered in an action under the EAA.
35 The finding reached in Allan together with that of the same court in Campbell v. Read (1987), 1987 2402 (BC CA), 49 D.L.R. (4th) 51, leads to the conclusion that in British Columbia a claim for punitive and exemplary damages is not sustainable under the EAA.
36 I am asked to apply the analysis in Allan and that of the Ontario Court of Appeal in Lord v. Downer to the Trustee Act and conclude that claims for punitive, aggravated and exemplary damages are similarly precluded under the Trustee Act. The problem with this approach is that the wording of the legislation the court considered in Allan and Lord v. Downer is different from the Trustee Act. The exclusions set out in the EAA are not the same as those under the Trustee Act and, as previously indicated, the court in Allan used the nature of the exclusions to interpret the EAA for the purpose of determining whether it allowed for a claim for punitive damages. Similarly, the intent and wording of sections 61(1) and (2) of the FLA, the statute being interpreted in Lord v. Downer are not the same as the relevant provision under the Trustee Act.
37 In my view while the result may ultimately be found to be the same under the Trustee Act, the law is not yet decided on this point. In fact the issue is the subject of some debate. Professor Waddams in The Law of Damages, supra argues that there is a 'strong case' for the survival of punitive damages, the presumed purpose of which is to punish the defendant and not compensate the plaintiff. The author supports this argument, in part, by relying upon the 'public interest' in enriching an estate through the award of exemplary damages in similar fashion as a living person.
38 I agree with the observations of Bellamy J. in Progressive Casualty Insurance Co. v. Saygili, supra that "in cases where .... pressing matters of public policy are raised in the pleadings, or where the statute does not lend itself to crystal clarity in its interpretation, such circumstances will militate against resolving the matter under Rule 21, calling instead for a full and open airing of the issues at a trial." The claim in this matter, including the manner in which the damages have been cast, does involve issues of public interest and arguably, public policy. Further, it cannot be said that the Trustee Act makes it clear that there can be no claim for punitive, aggravated or exemplary damages….”
[40] In my feel there continues to be no imperative reason to refuse to allow the proposed amendments to be made at this time in the case before me.
VI. Late Delivery of a Jury Notice?
[41] The case law in Ontario supports the general proposition that the amendment of a pleading re-opens the pleadings for all purposes, including the delivery of a jury notice, unless some limitation in purpose is otherwise indicated. My colleague Master Beaudoin, as he then was, focused on this issue in his decision in Dow v. Ottawa Hospital - Civic Campus, 2005 6375; [2005] O.T.C. 190; 137 A.C.W.S. (3d) 920.
[42] In that case the plaintiff Dow sought to strike a jury notice issued by some of the defendants in a medical malpractice action. The plaintiff initially claimed $300,000 in damages. Following receipt of future care reports estimating future care costs of over $1.9 million Dow amended the statement of claim to increase the damages sought. The hospital and nurses then issued a jury notice. They argued that the re-opening of the pleadings meant that pleadings were opened for all purposes and the notice was valid. Dow argued that the pleadings had been amended, and therefore re-opened, only for the limited purpose of amending the damages claimed, and that the jury notice should be struck out as being out of time.
[43] The Master held that where amendments changed the “nature of the action” the pleadings were reopened and a jury notice could be issued. In his reasons he reviewed the history in this area of practice in detail:
The Issue on this Motion
6 There are two basic principles that are at play in this motion. The first is set out in Freeman v. Parker, [1956] O.W.N. 561. There, Justice Gale (as he then was) held that the amendment of a pleading re-opened the pleadings for all purposes, including the delivery of a jury notice, unless some limitation in purpose was otherwise indicated. That principle has been followed and cited with approval by subsequent courts, including those decisions referred to by the Plaintiffs; namely, Nardo v. Fluet, (1993) 1993 8628 (ON SC), 13 O.R. (3d) 220 (Gen Div.) and Ampadu v. Novopharm Ltd. (1998) 27 C.P.C. (4th) 64. In Graham v. Smith (1982), 1982 2101 (ON SC), 38 O.R. (2d) 404, Master Sandler modified the statement of Justice Gale but in Iona Corp. v. Rooney (1987), 1987 4227 (ON SC), 62 O.R. (2d) 179 (Ont. H.C.J.), Justice Henry reviewed the case law and the Graham decision and held at p.188:
• In my opinion, this case (Graham) stands for the proposition that a party ought not to be permitted to obtain leave to make a perfunctory or pro forma amendment to pleadings in order to have them reopened for the purpose of enabling him to serve a jury notice that would be otherwise out of time; this is to be regarded as an improper purpose of the rule; that purpose ought, in such circumstances, to be accomplished by applying for an extension of time.
Justice Henry reaffirmed the basic principle in Freeman v. Parker; that amendments to a pleading reopen them for all purposes unless some limitation in purpose is otherwise indicated.
The second principle in issue is that the right to a jury trial as a statutory and substantial right cannot be taken away without substantial reasons (See Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 (C.A.) and Macdonald v. Zurich Insurance Co. of Canada (2003), 37 C.P.C. (5th) 338 (Ont. S.C.J.)).¹
[44] It seems clear that the right to a jury trial is statutory and substantial, and cannot be taken away without substantial reasons.
[45] Where there is no amendment to the pleadings, a party may apply for an extension of time and leave to deliver a jury notice, after the close of pleadings. The test on such a motion is based on an examination of, (i) the circumstances of the delay, and (ii) whether there is prejudice to the other side. Inadvertence of counsel is an acceptable reason for the delay. Prejudice is not presumed in general, nor is it presumed simply because discoveries have been conducted. The fact that discoveries are not complete, and no pre-trial or trial dates have been scheduled, favours the granting of leave, as does the absence of any real or identified prejudice to the defendants.
References
Nikore v. Proper, 2010 ONSC 2307 (Div. Ct.) at paras. 17-19, 23- 24
Cipparone v. Royal and Sunalliance Insurance Company of Canada, 2010 ONSC 4528
Janet Doe v. Bragg and Toronto Police Services Board, 2005 33042 (ON SC)
[46] I am satisfied that the authorities on the refusal of an extension of time to deliver a late jury notice deal with a separate issue and thus are distinguishable and distinct from the authorities which indicate that a jury notice may be delivered after the amendment of pleadings. Where the pleadings are amended, and the rights of all parties to plead, and conduct further discoveries, are reopened, arguably there is s no need for an extension of time because the close of pleadings deadline in Rule 47.01 has been reopened.
[47] The plaintiffs submit a jury notice should be allowed at this time for a number of grounds including following reasons:
a) If the request to amend the statement of claim is granted, the pleadings have been reopened for legitimate reasons justified by information only recently obtained at the discovery of the defendants;
b) The amendments, and the recent resolution of the third party claim, indicate an increased likelihood that the issues to be determined by the trier of fact relate mainly to an assessment of fatal injury damages in a motor vehicle case, and this is within a category of cases suited to the jury trial process and routinely tried by juries in Ontario;
c) The proposed claim for punitive damages is suited to the jury trial process;
d) The action is at an early stage;
e) No trial record has been delivered, no pre-trial or trial dates have been set, and there is ample time for the parties to prepare for a jury trial;
f) The right to a jury trial is a substantive right and should not be denied lightly;
g) There is no prejudice to the defendants that would be caused by permitting the delivery of a jury notice at this time; and,
h) There is no good reason to refuse the plaintiffs their right to a trial by jury.
[48] Taking all these factors into consideration I am satisfied that the proper result in this caser is to grant the plaintiffs the relief they seek.
Disposition
[49] I am therefore granting the plaintiffs leave for the amendment of the statement of claim in the form provided as Schedule "A" attached to the notice of motion.
[50] As well I am granting the plaintiffs leave to permit the delivery of a jury notice at this time.
[51] The plaintiffs are entitled to their costs of this motion on a partial indemnity basis payable within 30 days of the quantum being established.
[52] If the parties are unable to resolve an appropriate quantum within 15 days, the plaintiffs shall serve their cost outline and up to five pages of written submissions upon counsel for the defendants within 30 days of the release of these reasons. The defendants will have 20 days to respond with a similar submission length limitation. A period of 15 days shall be available for a written Reply of up to three pages.
[53] Counsel for the plaintiffs shall then submit the entire package to my Assistant Trial Co-ordinator. If the quantum is not resolved on consent or a Costs Package is not received within 120 days of the release of these reasons there will be no order as to costs.
R.99/DS __________________
Master D.E. Short