CITATION: Leadbetter v. Nor 2016 ONSC796
COURT FILE NO.: CV-13-227
DATE: February 1, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Leadbetter v. Abdirissaq Nor;
BEFORE: MASTER C. WIEBE
COUNSEL: S. J. Sokol for the Ontario Minister of Finance representing Abdirissiq Nor pursuant to the provisions of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M. 41; A. Moras for Michael Leadbetter;
HEARD: January 28, 2016 at Brampton, Ontario.
REASONS FOR DECISION
I. INTRODUCTION
[1] This is a motion by the Ontario Minister of Finance (“the Minister”), representing the defendant Abdirissaq Nor (“Nor”) pursuant to the provisions of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M. 41 (“MVAC Act”) for an order striking the jury notice that was served by the plaintiff Michael Leadbetter (“Leadbetter”).
[2] For the reasons stated herein, I dismiss the motion.
II. BACKGROUND
[3] On March 15, 2011, Leadbetter and certain family members and friends got involved in a dispute with four individuals in an apartment building. The dispute escalated into a brawl. The four individuals ran out of the building. Two went into the adjoining parking lot. As Leadbetter exited the building and was hit by a car that was leaving the lot. He was seriously hurt.
[4] No one (including Leadbetter) was able to identify the driver of the car. The police indicated that in the Motor Vehicle Report. The implicated car was found shortly after the accident. It had been abandoned. The registered owner of the car is Nor. He denied that he was involved in the brawl or the accident in any way. Yet he was charged with dangerous driving causing bodily harm and with failure to remain at the scene of an accident. Nor did not appear to face these charges, and was convicted in absentia on March 6, 2013.
[5] Leadbetter sued Nor and no one else. The Statement of Claim was issued on January 18, 2013 and claimed $1 million in damages. It stated that at “all material times [Nor] was the owner and operator of” the car that hit Leadbetter. Nor did not defend. Leadbetter’s lawyer served the Minister with a Notice of Default under the MVAC Act.
[6] The MVAC Act establishes a fund that gives relief to those who are injured by an uninsured vehicle and have no applicable insurance. This is the case with Leadbetter. Hence the Notice of Default. Of note for this motion, the Act has special provisions that apply when the owner and the driver of uninsured offending vehicle have not been identified.
[7] The Minister investigated and concluded that Nor had fled the country. The Minister notified Leadbetter of this on June 24, 2014 and delivered a Statement of Defence on behalf of Nor on August 29, 2014 expressly denying that Nor was the driver and operator of the offending vehicle. The pleadings were closed in accordance with the Rules of Civil Procedure on September 18, 2014.
[8] Leadbetter was examined for discovery on January 28, 2015. On April 6, 2015, the lawyer at the firm representing Leadbetter left the firm and was replaced on this file at the same firm by Leadbetter’s present lawyer, Savannah Chorney. There was a mediation on April 27, 2015 that was not successful.
[9] Two days later, on April 29, 2015, Ms. Chorney served a jury notice. Counsel for the Minister, Mr. Sokol, responded on May 1, 2015 objecting to the service of the jury notice, as it was well after the closing of pleadings and no court leave had been obtained to do so. On May 14, 2015, Ms. Chorney served and filed a trial record that contained the jury notice.
III. ISSUES
[10] Having reviewed the facta and heard the arguments, I believe that the following are the issues to be determined:
a) Does the absence of a leave motion require striking the jury notice?
b) If the answer to (a) is no, was there unconscionable delay in serving the jury notice?
c) If the answer to (a) is no, was the delay in service inadvertent?
d) If the answer to (a) is no, is there prejudice to the Minister due to the late service?
e) If the answer to (a) is no, is this a case that cannot or should not be tried by a jury?
IV. ANALYSIS
(a) Does the absence of a leave motion require striking the Jury Notice?
[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 (Div. Ct.) 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.
[12] When I asked Mr. Moras as to why a motion for leave had not been brought, all he could say was that this decision was made out of expedience and to save cost, as the present motion amounted in effect to a “leave motion.” I find this explanation to be inadequate, given the gravity of the matter. I am attracted to Mr. Sokol’s argument that the plaintiff’s conduct makes a travesty out of Rule 47.01, particularly since the plaintiff could have brought a motion for leave and instead chose to serve and file a trial record containing the jury notice, thereby representing to the court that this document was proper.
[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.
(b) Was there unconscionable delay in serving the jury notice?
[16] The case authority in this area is consistent in requiring that there not be an unconscionable delay in serving the jury notice after the close of pleadings; see Jackson v. Hautala et al. 1983 CarswellOnt 439 (Div. Ct.). What amounts to unconscionable delay depends on the facts of each case and what has transpired in the period of the delay; see Janet Doe v. Bragg 2005 CarswellOnt 4403 (S.C.J.) at paragraph 26. This means in essence that the court should not be quick to strike a jury notice strictly on the grounds of time delay. I note that the courts have been willing to allow jury notices that were served as late as four years after the close of pleadings; see Paskie (Litigation Guardian of) v. Canadian Amateur Boxing 1999 CarswellOnt 2724 (S.C.J.).
[17] In this case, I am not satisfied that there has been unconscionable delay per se. The jury notice in question was served just over seven months after the close of pleadings. What is more important, in my view, is what transpired during that seven months. This is a question that concerns prejudice, which I will discuss later.
(c) Was the delay in service due to inadvertence?
[18] Some of the earlier decisions on this issue introduced the requirement to show that the delay was due to an inadvertence, either of counsel or the party; see Warren v. Lowery et al., 1976 CarswellOnt 341 (H.C.J.) at paragraph 4. This requirement was reiterated in later decisions, such as in Paskie, op. cit., page 11, and Crummey v. Andrade, 2003 CarswellOnt 4144 (Ont. Master) at page 2. However, there are other later decisions that do not refer to inadvertence; see Jackson, op. cit., at paragraphs 9 and 10. Suffice it to say that it is unclear whether this should be a determinative factor.
[19] In this case, I have concluded that there is no evidence of inadvertence on the part of the plaintiff. In her affidavit, Ms. Chorney stated that, when she took carriage of the file, she noted that there was no jury notice, that Leadbetter told her that the issue had not been discussed with him by her predecessor on the file, John Johnson, and that she “assume[d] this was inadvertence on his part.” This is nothing but speculation. There was no affidavit from Mr. Johnson himself.
[20] However, because of the uncertainty in the case authority as to the importance of this factor, I do not strike the jury notice for this reason. The more critical issue is prejudice.
(d) Is there prejudice to the Minister due to the late service?
[21] Mr. Sokol argued that there is considerable prejudice to the Minister due to the late service of the jury notice. He argued that the examination for discovery of Leadbetter and the mediation would have been done differently by the Minister had a jury notice been properly served. He also argued that the integrity of the mediation process would be undermined if a jury notice served two days after the mediation, such as this one, was not struck. He argued that I should assume that the parties “exposed” their trial strategies to each other at the mediation, thereby giving the plaintiff the unfair strategic advantage of changing the trial “landscape” to suit what was learned at the mediation. He relied heavily on the decision of Master Brott in Crummey, op. cit., at page 3 where she described discovery as a “watershed event” in determining the issue of prejudice concerning a late jury notice. The Master also made mention of a mediation that had taken place prior to the jury notice. The Crummey decision was referred to by Justice Perell in the Bragg decision at paragraph 33.
[22] However, in the same paragraph of the Bragg decision, Justice Perell refers to the decision of Master MacLeod in Rodic v. Centre for Addiction & Mental Health, [2001] O. J. No. 2000 (Ont. Master). In this decision the Master refused to strike a jury notice served after mandatory mediation. As noted in paragraph 32 of the Bragg decision, Master MacLeod observed that the “conduct of mandatory mediation should . . . not be influenced by whether or not a jury notice had been delivered.” He refused to assume that a decision to serve a jury notice that stemmed from mediation prejudiced the litigation process. This approach commends itself to me. Why should the occurrence of mediation before the service of a jury notice pe se prejudice the litigation process? A mediation is supposed to be a without prejudice process meant to encourage settlement. Many things can occur in mediation as a result. If there is to be any assumption, it should be that mediation is neutral to the litigation process.
[23] I make similar comments in relation to examinations for discovery that occur prior to a jury notice. Justice Perell in his Bragg decision at paragraph 31 came to the conclusion that the prospect of a jury trial should not affect the conduct of discovery. He stated the following: “In my view, while there are differences in how to conduct the trial of an action depending on whether there is to be a judge and jury or a judge alone, that difference does not justify refusals to answer questions on an examination for discovery.” I agree. If evidence is relevant, it does not matter whether the eventual trial is or is not by jury as to whether the evidence should be disclosed.
[24] Mr. Sokol made a valid point about the prospect of a jury trial having an influence on a party’s choice of expert witnesses. Some experts may be better with juries than others. That appears to have been an important consideration for Master Brott in her Crummey decision. However, I was given no evidence that the parties have to date exchanged expert reports. This does not, therefore, appear to be a relevant consideration.
[25] I, therefore, have concluded that the Minister will not be prejudiced by the late service of the jury notice in this case.
(e) Is this a case that cannot or should not be tried by a jury?
[26] Mr. Sokol’s primary argument was that this action was in “pith and substance” an action against the Superintendent of Financial Services under sections 12 and 15 of the MVAC Act. These sections apply to situations where the identities of the owner or driver of the offending vehicle “cannot be established.” In those situations, according to these sections, the plaintiff may sue the Superintendent. Indeed it was not disputed that the plaintiff must sue the Superintendent in order to recover from the fund under the Act for the liability of the unidentified driver or owner. If the plaintiff does sue the Superintendent, section 14 of the Act states that “the action shall be tried by a judge without a jury.”
[27] I have trouble understanding the “pith and substance” argument. There is no doubt that Leadbetter has not joined the Superintendent as a defendant in the action. Furthermore, Leadbetter clearly alleges in his Statement of Claim that Nor, the identified party, was both the owner and driver of the offending vehicle. It appears that Leadbetter will be relying on the in absentia conviction of Nor in this regard despite the fact that this conviction is not determinative of the point. While the Minister has denied this allegation, and while the facts that apparently have come to light since the incident suggest that the driver cannot be unidentified, the fact of the matter is that the action has been framed by Leadbetter as an action against an identified driver and owner, Nor. As such, the Superintendent and the fund under the Act have no risk in the event the jury at trial finds that Nor was not the driver and did not consent to the use of the car, and that the identity of the driver cannot be established. Indeed, when I asked Mr. Sokol as to why the Superintendent had not moved to be joined to the action if the Superintendent felt exposed to a judgment in this action, particularly since the Superintendent has a prima facie right to be joined on such a motion under section 13 of the Act, Mr. Sokol replied that the Superintendent was now probably protected by the two year limitation period under the Limitations Act, 2002, and did not want to compromise that position.
[28] I, therefore, give no merit to the “pith and substance” argument. The action does not involve the Superintendent. The plaintiff has obviously taken on the risk of non-recovery from the fund in the event of a finding that the identity of the driver is not established.
[29] Mr. Sokol brought my attention to two decisions to substantiate his “pith and substance” argument, namely the decisions of the Divisional Court in Markovski v. Allstate Insurance Co. of Canada, 1983 CarswellOnt 434 at paragraph 26, and the decision of Justice Maloney in Jeschkeit et al. v. State Farm Insurance Co., 1990 CarswellOnt 377 at paragraph 7. In both cases, insurers of uninsured offending motorists argued that their cases should not go before a jury. Several reasons were given, including the argument that they would have difficulty getting cooperation from the defendant drivers and that their positions were therefore the same as the Superintendent under the Act. In both decisions, the court did not agree, allowed the jury notice and drew a distinction between the positions of the insurers and that of Superintendent, who both courts emphasized must get the benefit of a non-jury trial since an unidentified party (as opposed to an uninsured party) was involved.
[30] In my view, neither of these decisions assists the Minister, as the judicial comments referred to simply underscore the statutory scheme of having non-jury trials when the Superintendent is joined. In the case at bar, the Superintendent has not been joined. I find that Section 14 of the Act does not justify striking the jury notice in this case.
[31] It was not made clear to me at the time of the argument, but, on reflection, I see that the Minister may have a concern that a jury will improperly try to assign liability to Nor, and thereby the fund, where the evidence leads the jury to the conclusion that the driver cannot be established. The concern would be that the jury will try to find the party with the government “deep pocket” liable, that Nor will not be available to assist the Minister, and that the jury will therefore be inclined to find that Nor “consented” to the use of the vehicle leading to the incident. In oral argument, Mr. Sokol expressed this concern.
[32] I do not accept this argument. In my view, this argument is the same as one made by the insurers in the Markovski and Jeschkeit cases, namely that the insurers are particularly vulnerable to an adverse jury ruling given the jury’s likely knowledge of the existence of insurance and the lack of cooperation the insurers will get from the offending uninsured drivers. The insurers argued that the mention of the existence of insurance would prejudice the juries against the defendants. As the Divisional Court in Markovski held at paragraph 19, the lack of cooperation by the defendant can best be dealt with by the trial judge. I agree with that statement in relation to the case at bar. In paragraph 20, the Court stated the following about the effect of the knowledge of insurance on the jury: “The mere mention of insurance no longer has the impact it was once thought to have. Compulsory insurance is now a fact in Ontario.” That statement is as true today as it was when the Divisional Court issued its decision in 1983. I adopt it as well. There is no reason to assume that a jury will be unduly influenced against Nor by their knowledge of the existence of the fund.
[33] Mr. Sokol argued orally that the issue of an owner’s consent to the use of the offending vehicle is “never” put to the jury in a motor vehicle case. Mr. Moras disagreed with that statement, and I was given no authority for it. It makes no sense, as I would have thought that all issues of fact are put to the jury in a motor vehicle trial with a jury. I do not accept this argument.
[34] I, therefore, find that this is not a case that cannot or should not be tried by a jury.
CONCLUSION
[35] I, therefore, dismiss the Minister’s motion.
[36] Concerning the costs of this motion, Mr. Moras advised me that Leadbetter is not seeking costs. Mr. Sokol presented a bill of costs showing partial indemnity costs of $13,162.20.
[37] If costs cannot be resolved between the parties, those parties seeking costs of this motion must serve and file a written submission of no more than one page concerning same on or before February 10, 2016.
[38] Any responding costs submissions must be in writing, cannot be longer than one page, and must be served and filed on or before February 22, 2016.
[39] Any reply costs submissions, if any, cannot be longer than half a page and must be served and filed on or before February 25, 2016.
DATE: February 1, 2016 __________________________
MASTER C. WIEBE