Court File and Parties
CITATION: MA v. RBC LIFE INSURANCE COMPANY, 2016 ONSC 6417
COURT FILE NO.: CV-13-495245
DATE: 20160926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHONGUK STEVE MA
Plaintiff
– and –
RBC LIFE INSURANCE COMPANY and NENEVETH TALENS
Defendants
COUNSEL:
William A. McMaster for the Plaintiffs
Barry Marta for the Defendant
HEARD: September 14, 2016
REASONS FOR JUDGMENT
G. DOW, J.
[1] The plaintiff seeks to strike out the Jury Notice served in December, 2014 in this action. The action is for the recovery of insurance benefits under a long term disability policy. The action was listed for trial by the plaintiff in late June, 2016 after service of this motion dated June 8, 2016.
Background
[2] The plaintiff is a dentist who was injured in a motor vehicle accident on July 2, 2006. The policy was issued in June, 1995 and provided for, in the event of disability, payment of $3,000.00 per month with provisions for an increase in converge known as Future Income Options of a further, total of, $9,000.00 per month. This would be in exchange for additional premiums being paid and upon proof of a suitable level of income.
[3] The plaintiff was unable to work following the motor vehicle accident and sought, and after some dispute, was paid benefits. According to the Statement of Claim, he sold his dentistry practice after the 2006 accident. However, through rehabilitation, he improved and in September 2008 began working again. He sought “partial” benefits, a condition or term defined in the policy as he was working at a reduced level. His income was such that he exercised some of his Future Income Options to increase the amount of benefits that he could claim. He employed an associate to maintain the practice who subsequently left. This caused him to work more which has apparently exacerbated his complaints.
[4] In 2012, the plaintiff sold half his practice (and presumably access to a similar amount of the profit of the practice) to an associate as an inducement to that individual to practice with him.
[5] The defendant not only disputes the plaintiff is entitled to the benefits but, in April, 2016 amended its Statement of Defence, originally served in December, 2014 to include a counterclaim seeking a declaration that the increases in the monthly benefit granted in June, 2010 and June, 2011 are void as a result of misrepresentations by the plaintiff.
Issue – Timeliness
[6] The defendant seeks to have the motion dismissed on the basis of Rule 48.04 which not only prohibits a party who has set the action down for trial from initiating any motion (which has not occurred here) but, as the rule states “initiate or continue” without obtaining leave of the court. Leave is not specifically sought in the motion material or addressed by the plaintiff in his factum. The plaintiff relied on the fact that this type of motion can be brought (and as inferred from the cases referenced below) should not be brought until the actual circumstances justifying the relief have occurred. That is, at the trial. The “wait and see approach” is preferred as described in Cowles v. Balac, [2006] O.J. No. 417 (at paragraphs 70 and 71).
[7] While I appreciate the concern for observing the clear intent of Rule 48.04, I am not prepared to dismiss this motion on this basis given the nature of the motion which allows for it to be advanced at any stage of a proceeding, including at trial.
Issue – Fresh Step
[8] The defendant also sought to rely on Rule 2.02 and that this motion was brought beyond the reasonable time permitted to attack an “irregularity” given service of the Jury Notice in December, 2014, except with leave of the Court. For the same reasons indicated above, I would not dismiss this motion on that basis.
Issue – Declaratory Relief
[9] In support of its position, the plaintiff relied on the decision of Justice Thorburn in Thibault v. Empire Life Insurance Company 2012 ONSC 1723 where a declaration was being sought and the defendant, like here, was seeking to have the policy, or portion of the policy declared void. While I would not disagree with the comments of Justice Thorburn, I would note she decided the issue of proceeding without a jury (at paragraph 49) at the trial after the plaintiff had closed his case and most of the defence evidence had been presented. Further, I am comforted in concluding her able analysis and conclusion does not apply to this situation at hand by her referencing (at paragraph 47) the issue of proceeding with a jury had previously been refused by a motion judge.
Issue – Legal Issues
[10] In this regard, the plaintiff relied on the reasons of MacNeil (Litigation Guardian of) v. Bryan, 2009 CanLII 28648 (ON SC), [2009] O.J. No. 2344 where Justice Howden summarized the grounds for the motion being (at paragraph 9) that the action claimed declaratory relief and that the issues would deal primarily with questions of law, not questions of fact. In this regard, I agree with the responding submission that the substance of this action is whether the plaintiff could prove he is disabled in a form that meets the tests set out in the words contained in the policy. It is my view that this matter involves a factual matrix and one upon which litigants in this province are entitled to have determined by a jury. As a result, I would not grant the relief sought on this basis.
Issue – Complexity
[11] The key argument of the plaintiff in support of striking a jury is, to quote paragraph 40 of his factum, “numerous complex and technical factual and legal issues pertaining to, inter alia, medical and financial matters”. In this regard, the plaintiff’s counsel acknowledged the direction of the Court of Appeal as stated in paragraphs 70 and 71 of Cowles, supra and the merit of taking a “wait and see” approach so “Courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so” (at paragraph 70). (For a full review of the threshold required, there is the article, “The Breadth of Civil Jury Trials in Canada: Their History and Availability”, in 2007 Annual Review of Civil Litigation by Todd L. Archibald and Randall Scott Echlin and specifically pages 151-157).
[12] The Court of Appeal has made it clear that it will not set aside the striking of a jury at trial unless done arbitrarily, or based on an inapplicable principle of law. It also maintains that the right to a jury is a substantive right of great importance and should not be interfered with unless there are cogent reasons to do so. The recent reasons of the Court of Appeal in Kempf v. Nguyen 2015 ONCA 114, continues to indicate it is preferable to take a “wait and see” approach before deciding whether to discharge the jury.
[13] It will be the rarest of situations and only in the clearest of cases where a party can successfully argue a jury notice should be struck in advance of the trial. In my view, this matter does not meet that high standard and as a result is dismissed.
Costs
[14] Counsel for the plaintiff agreed that the Costs Outline submitted by counsel for defendant in the amount of $7,947.04 inclusive of fees, HST and disbursements was reasonable. I agree. The plaintiff submitted in the circumstances the costs should be awarded “in the cause”. To the contrary, the defendant relied on Rule 57.03(1)(a) which directs the Court shall fix the costs to be paid within 30 days unless a different order would be more just. In my view, there are insufficient circumstances to deviate from the rule and the defendant is entitled to its costs of this motion in the amount of $7,947.04 payable within 30 days.
Mr. Justice G. Dow
Released: September 26, 2016
CITATION: MA v. RBC LIFE INSURANCE COMPANY, 2016 ONSC 6417
COURT FILE NO.: CV-13-495245
DATE: 20160926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHONGUK STEVE MA
Plaintiff
– and –
RBC LIFE INSURANCE COMPANY and NENEVETH TALENS
Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: September 26, 2016