Smith v. Trisect Construction Corporation, 2016 ONSC 782

CITATION: Smith v. Trisect Construction Corporation, 2016 ONSC 782

COURT FILE NO.: CV-11-420711

DATE: 20160129

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marilyn Smith, Plaintiff

AND:

Trisect Construction Corporation and City of Toronto, Defendants

BEFORE: S. F. Dunphy, J.

COUNSEL: Andrew Suboch, for the Plaintiff

Amanda Potasky, for the Defendant Trisect Construction

HEARD: January 29, 2016

ENDORSEMENT

[1] The defendant moves to re-open pleading in order to file a jury notice. The plaintiff resists. Ought I to grant the motion?

[2] I dismissed his motion today with reasons to follow. These are those reasons.

[3] This case was set down for trial in June 2013. No jury notice has ever been filed in the matter and it is accordingly on the non-jury trial list. A pre-trial is scheduled for February 23, 2016 and a 12 day trial is scheduled for May 30, 2016.

[4] The defendant pleads that the lack of a jury notice is a matter of pure inadvertence and should be relieved, even at this late date. No jury notice was initially filed due to the presence of the City of Toronto as a co-defendant. The City of Toronto was released from the action in 2012. Thereafter, the inattention to the matter is laid at the feet of the change of counsel the defendant underwent in 2013 and the (admittedly unverified) assumption made by new counsel that a jury notice had been filed as soon as the impediment posed by the presence of the City of Toronto as co-defendant was removed.

[5] I accept that counsel for the defendant would have filed a Jury Notice if her mistake had come to light earlier. Defence counsel in cases of this sort almost invariably do invoke their right to file a Jury Notice and I fully accept that it was only the presence of an ineligible co-defendant (The City of Toronto) that prevented the defendant from doing this at the outset. This motion is not the product of a late-breaking tactical change of heart. I have no doubt that had counsel focused on the question at any time after the City of Toronto was removed from the action in July 2012, its counsel would have sought to file a Jury Notice without delay.

[6] There is evidence before me as to various points in the chronology where I might have been able to conclude that counsel might have tumbled to her error sooner than she did. If it were a matter of finding when counsel knew or ought to have known that this matter was on the non-jury list, that evidence would be material. That is not the issue – the defendant freely admits that it was counsel’s inadvertence that is the result of the error. The question is not whether counsel was inadvertent – the question is whether her client should bear the consequences when the client wished a jury trial and has a right to one.

[7] I accept without hesitation the assertion by the plaintiff that the right to a jury trial is a substantive right and not one lightly to be interfered with. It is, however, not an absolute right. It must be claimed diligently and having regard to the rules conditioning its use set forth in the Rules of Civil Procedure.

[8] The moving party defendant relies upon the Divisional Court decision in Nikore v. Proper, 2010 ONSC 2307. In Nikore, the plaintiff had sought leave to file a jury notice after the close of pleadings. The facts were somewhat similar to the present case in that the plaintiff had originally been precluded from filing a jury notice due to the presence of the City of Brantford as a party. The plaintiff alleged inadvertence of counsel as the reason why the situation was not remedied after the City of Brantford was removed from the case. Wilson J. allowed the motion and granted leave to file the jury notice but leave to appeal from that decision was granted by Karakatsanis J. (as she then was) due to the desirability of obtaining clarity as to the standard to be applied for granting leave to file a jury notice in such cases. Writing for the panel, Molloy J. dismissed the appeal after carefully reviewing the test to be applied in granting leave. Prior case law had suggested that prejudice would be presumed if leave were sought after completion of discoveries. Molloy J. rejected that arbitrary standard, finding “the test remains the same throughout, although the greater the delay and the more preparation that is done, the greater the likelihood that leave will be denied”. In the result, she defined the test as requiring a consideration of (1) the circumstances of the delay; and (2) whether there is prejudice to the other side (c.f. Nikore, supra, at para. 26).

[9] While my acceptance of the position of the defendant that the failure in this case was attributable to inadvertence, that finding blunts but does not remove the first factor (circumstances of the delay) from the equation. Inadvertence unchecked and unverified over a long period of time begins to take on a hue more akin to negligence. I am not entirely satisfied with the explanation that new counsel to the file failed to turn her mind to the question. A fairly fundamental starting point for new counsel on any new file has got to be a review of the pleadings and such a simple review would surely have raised the jury notice question two or more years ago. I do not rest my decision on this factor however. I simply do not wish to be taken as saying that a ritual recitation of the magic phrase “inadvertence of counsel” will grant an automatic pass on the first part of the test.

[10] My primary reason for denying leave in this case is a consideration of the question of prejudice. This matter has been on the non-jury trial list for a long time. It has moved its way to the top of the list and is scheduled for trial imminently (in litigation time at least!). Granting leave at this point would remove the matter from the non-jury trial list and put it at the back of the jury long-trial list. That is a very long list. It is almost certain that her matter would not be heard until 2018 whereas the accident underlying this claim dates to September 2009.

[11] Access to justice in a timely manner is a right at least as fundamental and important to the plaintiff as trial by jury is to the defendant. There is nothing the plaintiff can be faulted for here. She could not do anything to avoid this motion and the risk it poses to her place in line.

[12] Justice delayed is always justice denied. Justice delayed after waiting one’s turn on a lengthy trial list and virtually on the eve of trial elevates the matter near the point of non-compensable prejudice if not beyond.

[13] In my view, the right to trial by jury must defer to the right to timely access to justice where the conflict between the two has arisen as a result of the lack of diligence of the party seeking leave. This is simply too close to trial and the cost in terms of delay imposed on an innocent party too great.

[14] I dismissed the motion with costs fixed at $8,000. This figure was below the partial indemnity costs submitted by the plaintiff for the motion. While I recognized that this was a very important motion to her, I reduced the costs claimed by about 20% in recognition of what appeared to me to be a reasonable view of what the unsuccessful party could expect to pay. Costs are payable pursuant to Rule 57.03 within thirty days.

S. F. Dunphy, J.

Date: January 29, 2016