Court File and Parties

COURT FILE NO.: CV-13-227-00 DATE: 2016 08 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL LEADBETTER Plaintiff/Respondent A. Moras, for the Plaintiff/Respondent

- and -

ABDIRISSAQ NOR Defendant/Appellant Stan J. Sokol, for the Ministry of Attorney General, Appellant

HEARD: July 27, 2016

DECISION ON APPEAL Justice M.G. Emery

[1] This is an appeal of the order made by Master Wiebe on February 1, 2016, dismissing the motion of the Minister of Finance to strike a jury notice served by the plaintiff. The Minister brought that motion on the basis that the jury notice was served after the close of pleadings, without leave, and therefore outside the time permitted under Rule 47.01.

[2] For the reasons that follow, the appeal is allowed and the order of Master Wiebe is set aside.

Background

[3] The plaintiff Michael Leadbetter was injured as a pedestrian in a parking lot when he was struck by a motor vehicle on the night of March 15, 2011. No one has been able to identify the driver of that motor vehicle.

[4] Shortly after the accident, the police recovered the motor vehicle that had struck Mr. Leadbetter. The driver had abandoned that motor vehicle where it had found. The registered owner of the motor vehicle was determined to be the defendant, Abdirissaq Nor.

[5] Mr. Nor denied that he was involved in the accident, or in the brawl in which both he and Mr. Leadbetter had been involved that evening prior to the accident. Mr. Nor was charged with dangerous driving causing bodily harm and with failure to remain at the scene of an accident. He did not appear to face these charges in court, and was convicted in absentia on March 6, 2013.

[6] Mr. Leadbetter named Mr. Nor as the sole defendant in the Statement of Claim issued on January 18, 2013 to commence the action. In that Statement of Claim, Mr. Leadbetter claimed $1,000,000 in damages. Mr. Leadbetter alleges in the Statement of Claim that “at all times [Nor] was the owner and operator of” the motor vehicle that had struck him.

[7] Mr. Nor did not defend the action. In due course, Mr. Leadbetter’s lawyer served the Minister of Finance with a Notice of Default under the Motor Vehicles Accident Claims Act, (the “MVAC Act”).

[8] The Minister investigated the allegations of material fact made in the Statement of Claim and attempted to locate Mr. Nor. The Minister ultimately concluded that Mr. Nor had left Canada, and could not be found. The Minister notified Mr. Leadbetter of this conclusion on June 24, 2014 and delivered a Statement of Defence on behalf of Mr. Nor on August 29, 2014. In the Statement of Defence, the Minister denies that Mr. Nor was the driver and operator of the motor vehicle that had struck Mr. Leadbetter on the evening in question.

[9] On September 18, 2014, the pleadings were considered closed pursuant to the Rules of Civil Procedure.

[10] Mr. Leadbetter was examined for discovery on January 28, 2015.

[11] On April 6, 2015, the lawyer at Sokoloff Lawyers having carriage of Mr. Leadbetter’s file left the firm and was replaced by Savannah Chorney, another lawyer at the firm.

[12] On April 27, 2015, the parties engaged in mediation. That mediation was not successful.

[13] On April 29, 2015, Ms. Chorney served a jury notice on the Minister. Counsel for the Minister responded in writing on May 1, 2015 to object to the service of the jury notice as it had been served after the close of pleadings, and no leave had been obtained from the court. According to the Minister’s motion materials, Ms. Chorney did not respond to this letter, and instead served and filed a trial record containing the jury notice on May 14, 2015.

The Decision Below

[14] The Master correctly identified the requirement for leave if one party intends to serve a jury notice on another party in a civil action after the close of pleadings. In paragraph 11 of his Reasons for Decision, he stated that:

[11] It is well settled law that a party who does not serve a jury notice in accordance with Rule 47.01 of the Rules, must seek leave of the court to do so; see Proper v. Nikore 2010 ONSC 2307, at paragraph 9. Mr. Moras pointed out that there was no rule that required such leave. That may be so, but Rule 47.01 implicitly requires such leave and, in any event, the Proper decision makes the obligation explicit.

[15] The Minister’s motion to the Master was brought under Rule 47 of the Rules of Civil Procedure. That rule sets out the time one party is permitted to serve a jury notice as of right on another party, and various requirements for a motion any party may bring to strike a jury notice. Rule 47 reads in totality as follows:

ACTIONS TO BE TRIED WITH A JURY

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, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury. R.R.O. 1990, Reg. 194, r. 47.01

STRIKING OUT JURY NOTICE

Where Jury Notice not in Accordance with Statute or Rules

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,

(a) a statute requires a trial without a jury; or

(b) the jury notice was not delivered in accordance with rule 47.01. R.R.O. 1990, Reg. 194, r. 47.02 (1).

Where Jury Trial Inappropriate

(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge. R.R.O. 1990, Reg. 194, r. 47.02 (2).

Discretion of Trial Judge

(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury. R.R.O. 1990, Reg. 194, r. 47.02 (3).

[16] The Master determined that the plaintiff had not brought a motion for leave, or a motion for an order extending time to serve and file a jury notice outside the time prescribed by Rule 47.01. The Master found the explanation for the decision given by counsel not to bring a motion for leave to be inadequate, having regard to the gravity of the matter. He professed an attraction to the argument of counsel for the Minister that the conduct of the plaintiff made a travesty out of Rule 47.01. The Master made the observation that the plaintiff could have brought a motion for leave and instead chose to serve and file a trial record containing the jury notice and in doing so, represented to the court that the trial record was proper.

[17] Master Wiebe then stated as follows:

[13] Reluctantly, however, I have decided not to strike the jury notice for this reason. Pursuant to Rule 2.01, non-compliance with the Rules does not render a proceeding or a step a nullity. The same rule obligates the court to grant amendments or relief to secure a just determination of the real matters in dispute, and to set aside a proceeding or a step only where the “interest of just” require that it do so. I must, therefore, go on to the other aspects of the analysis to determine whether it is in the “interest of justice” to strike the jury notice.

[14] Furthermore, Rule 1.04(1) requires the court to construe the rules in such a way as to secure the most expeditious and least expensive determination of a proceeding. Striking the jury notice due to the absence of a leave motion would only invite another proceeding, namely a leave motion, when the issues can be resolved here.

[15] I will, though, take the plaintiff’s conduct into account in awarding costs.

[18] The Master embarked on an analysis to determine the issues as he found them in the following way:

1. Was there unconscionable delay in serving the jury notice? The Master concluded that he was not satisfied there had been unconscionable delay per se.
2. Was the delay in service due to inadvertence? The Master concluded that there was no evidence of inadvertence on the part of the plaintiff. He reached that conclusion because Ms. Chorney had stated in her affidavit that Mr. Leadbetter had told her that the prospect of a jury notice had not been discussed with him by her predecessor on the file, and that she “assumed that this was inadvertence on his part”. The Master found that this was nothing but speculation as there was no evidence from the previous lawyer himself.
3. Is there prejudice to the Minister due to the late service? The Master considered prejudice to be the more critical issue. After a review of the evidence and upon considering the decision of Master Brott in Crummey v. Andrade, 2003 CarswellOnt. 4144 (Ont. Master), he concluded that the Minister will not be prejudiced by the late service of the jury notice in the action.
4. Is this a case that cannot or should not be tried by a jury? On this issue, the Master examined what he considered to be the “pith and substance” of the action. Counsel for the Minister had argued that the “pith and substance” was essentially a claim against the Superintendent of Financial Services under Sections 12 and 15 of the MVAC Act. Those sections apply to situations where the identities of the owner or driver of a motor vehicle involved in an accident “cannot be established”. In those situations, the plaintiff may sue the Superintendent of Financial Services if the plaintiff seeks to recover from the motor vehicle fund for the liability of the unidentified driver or owner. The Master explained that these provisions are there to provide relief to a plaintiff who is injured by an uninsured vehicle, and where the plaintiff has no applicable insurance or coverage under an available policy for protection when injured by an unidentified owner or driver of a motor vehicle. The significance of this provision for the purpose of the motion is found in Section 14 of the MVAC Act that provides that “the action shall be tried by a judge without a jury.” The Master gave no merit to this argument, finding that the action does not involve the Superintendent.

[19] The learned Master therefore determined, after reaching his conclusions about delay and prejudice, and upon finding that the Superintendent was not a party to give effect to Section 14 of the MVAC Act, that there was no impediment to the trial of this action by a jury. After reaching this conclusion, the Master dismissed the Minister’s motion.

Analysis

[20] The parties agree that the question of whether the Master erred when he dismissed the Minister’s motion to strike the jury notice is a question of law. Accordingly, the parties agree that the standard of appellate review on this appeal is one of correctness. This agreement is consistent with the law summarized by the Court of Appeal in Wellwood v. Ontario Provincial Police, 2010 ONCA 386, at paragraph 28:

[28] Based on this court's recent decision in Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, 2009 ONCA 415, it is now settled law in Ontario that [page 563] an appeal from a master's decision is not a rehearing. Rather, on questions of fact and mixed fact and law, deference applies and the role of the reviewing court is limited. An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the master. On questions of law, the correctness standard applies: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. (2) Divisional Court judge's application of standard of review

[21] There is no dispute that the plaintiff had not served a jury notice by the time pleadings were considered closed on September 18, 2014. Nor does counsel for the plaintiff contest the Minister’s evidence that the plaintiff has never obtained leave to deliver the jury notice in this case. The Divisional Court in Nikore v. Proper recognized that a jury notice may be served and filed after the time for doing so under Rule 47.01, but only with leave.

[22] The Minister’s motion was not a leave motion. It was a motion to strike a jury notice under Rule 47.02. My reading of Rule 47.02 provides the court with the power to strike out a jury notice for one of three reasons:

a.) Where a statute requires a trial without a jury: Rule 47.02 (1) (a);

b.) Where the jury notice was not delivered in accordance with Rule 47.01: rule 47.02 (1) (b); or

c.) Under Rule 47.02(2), on the grounds that the action ought to be tried without a jury.

[23] In this case, the Master was hearing a motion brought on behalf of a defendant to strike a jury notice because the plaintiff had served and filed a jury notice that had not been served within the time prescribed by Rule 47.01. The Master appears to have converted that motion into a motion resembling a motion for leave.

[24] The Master notes in his reasons that Rule 1.04 requires the court to construe the rules in such a way as to secure the most expeditious and least expensive determination of a proceeding. He went on to conclude that striking the jury notice due to the absence of a leave motion would only invite another proceeding in the form of a motion for leave, when he could resolve the issue then and there.

[25] With great respect, I disagree. Without a motion for leave before him, the Minister had no motion framing the issues to which evidence could be given or submissions made. More to the point, the Master did not appear to consider the all-important qualifier at the end of Rule 1.04(1): to secure the just, most expedient and least expensive determination of a civil proceeding on its merits. The application of this general principle to interpret Rule 47.01 required a proper consideration whether a motion was required under the circumstances.

[26] The Master likely believed he was interpreting the powers available for the court to exercise under Rule 2.01 to treat the plaintiff’s non-compliance as an irregularity, and to make a corrective order in a manner consistent with Rule 1.04. Rule 2.01 provides the court with the following powers where a failure to comply with the rules amounts to an irregularity:

2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg. 194, r. 2.01 (1).

[27] The appellant argues that the Master exceeded his authority under the Rules of Civil Procedure to grant leave on this basis, and that he erred by exercising his discretion under Rule 2.01 in the absence of a motion brought by the plaintiff for leave. The respondent takes the view that the Master exercised his discretion given by Rule 2.01 properly on the evidence before him, and that he is entitled to deference.

[28] The powers under Rule 2.01 permit the court to grant all necessary amendments or other relief as are just, or to set aside the proceeding or a step, document or order only where and as necessary in the interests of justice. Those are not the powers that the Master exercised when he in essence granted leave. Instead, the Master exercised a discretionary power granted by Rule 2.03 to relieve compliance entirely. Justice Cronk describes the purpose and effect of Rule 2.03 in Wellwood as follows:

[33] Rule 2.03 is clear and unambiguous. To repeat, it states: "The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time" (emphasis added).

[34] This rule provides the court with a general discretion to relieve against the time requirements of any of the Rules, at any stage of a proceeding, if one essential precondition is satisfied: the court must first conclude that such relief is necessary in the interest of justice. Nothing in the language of rule 37.14(1) exempts it from what the Divisional Court judge aptly described [at para. 49] as "the overarching discretion afforded to the court by rule 2.03".

[29] Rule 2.01 is curative in nature, designed to repair the irregularity created by the failure of one or more parties to comply with the rules. Rule 2.03 gives power to the court to forgive noncompliance by relieving a party from strict compliance with a rule in appropriate situations after first concluding that granting such relief would be necessary in the interest of justice. The power under either Rule 2.01 or 2.03 permits the party to seek forgiveness from the court after the fact.

[30] Leave, on the other hand, is a judicial act; it is the granting of permission to take a step or course of conduct that could not be taken under the rules but for obtaining leave. Despite the best of intentions, the Master exercised a power not available under those subrules to grant judicial permission for the plaintiff to deliver a jury notice where no jury notice had been delivered before.

[31] The Master did not set aside any step, document or order under Rule 2.01 upon finding it necessary in the interests of justice to make his order. He did not dispense with compliance under Rule 2.03 upon making his finding that it was necessary in the interest of justice to make an order under Rule 2.03. The order he made was not within the powers given to him under either Rule 2.01 or Rule 2.03 to make.

[32] Factors a court may consider on a motion for leave include whether there has been unconscionable delay in seeking leave, solicitor inadvertence, prejudice to the other party and whether the action in which leave is sought is the type of case to be heard by a jury: see Jackson v. Hautala (1983), 42 O.R.(2d) 153 and Jane Doe v. Bragg, 2005 CarswellOnt 4403. Justice Molloy, when speaking for the Divisional Court in Nikore v. Proper, identified the two key factors to be taken account when deciding whether to permit the service of a jury notice after the closing pleadings to be (1) the circumstances of the delay, and (2) whether there is prejudice to the other side. The Master considered these factors under the auspices of deciding whether it would be in the interests of justice to grant relief under rule 2.01. With respect, the Master did not have the appropriate motion before him to consider those factors or the power to make the order under appeal.

[33] It is my view that the Master should have considered that as the jury notice had not been delivered before the close of pleadings under Rule 47.01, no jury notice had been delivered at all. It was therefore incumbent upon the plaintiff to either bring a motion for leave under Nikore v. Proper, or a motion to extend time to serve and file a jury notice. The plaintiff in this action has done neither. Without a motion, the Master erred at law when he made the order.

[34] The appeal is therefore allowed and the order of Master Wiebe dismissing the Minister’s motion to strike the jury notice is hereby set aside.

[35] If the Minister seeks costs, written submissions may be submitted by September 2, 2016. The plaintiff shall then have until September 16, 2016 to file written submissions to respond. All written submissions shall consist of no more than two type-written pages, not including a costs outline, bill of costs or dockets. All written submissions may be made by fax to my judicial assistant, Mr. Christopher Charles, at 905-456-4834 in Brampton.

Justice M.G. Emery Released: August 23, 2016