CITATION: Katherine Kane v. RBC Life Insurance Company, 2016 ONSC 905
COURT FILE NO.: 13-58992
DATE: 2016/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Katherine Kane Plaintiff
and –
RBC Life Insurance Company Defendant
J.F. Lalonde for the Plaintiff
Peter MacTavish for the Defendant
HEARD: January 19, 2016
REASONS FOR JUDGMENT ON A MOTION TO STRIKE OUT A JURY NOTICE
PELLETIER, R.
[1] Rule 47.01 of the Rules of Civil Procedure entitles a party to an action, within certain limitations, to have the issues determined and damages assessed by a jury. Delivery of the jury notice may be made at any time before the close of pleadings. Failure to do so entitles the opposing party to seek an order striking out the jury notice.
[2] In the present case, the Plaintiff has served a jury notice following the last of four changes to her pleadings. The Defendant argues that the last change did not alter the nature of the proceedings and should not entitle the Plaintiff to serve a jury notice at this stage of the proceedings.
[3] A brief history of the pleadings in the present case is as follows:
July 2001 – August 2013: The Plaintiff was employed by the Defendant insurance company;
October 4, 2013: Statement of Claim filed. The action is in wrongful dismissal/repudiation of the employment contract, in the approximate amount of $600,000.
October 11, 2013: Notice of Intent to Defend filed;
October 30, 2013: Agreement between counsel to minor amendments to Statement of Claim;
November 12, 2013: Amended Statement of Claim filed further addressing terms of employment and slightly increasing damages sought;
November 27, 2013: Statement of Defence filed in response to Amended Statement of Claim;
March 25, 2014: Amended amended Statement of Claim filed, on consent, to include claim for breach of contract and slightly increased damages claimed;
April 21, 2014: Amended Statement of Defence filed, raising the doctrine of after-acquired cause and setting out the evidence in support of the pleading;
April 23, May 2, June 4, June 5, July 7, July 8, 2014: Discoveries conducted;
November 4, 2014: Motion before Master Roger dealing with the issue of a Fresh Statement of Claim, permitted by the court without the addition of a named individual defendant;
February 25, 2015: Plaintiff’s counsel provides Defendant’s counsel with a revised Fresh Statement of Claim, as yet unfiled, pending mediation. Fresh Statement of Claim adds defamation and resulting damages as a claim, increases the amounts claimed in general and/or aggravated damages from $250,000 to $350,000 and in punitive damages from $75,000 to $750,000, sets out an allegation of spoliation of evidence, specifically the destruction of a particular email transmission, and asserts a negligent and biased investigation by the Defendant of the Plaintiff’s complaints while still employed by the Defendant;
April 2, 2015: Jury notice served upon the Defendant;
April 7, 2015: Mediation conducted unsuccessfully;
September 11, 2015: Case conference held. Defendant ordered to advise whether they consent to the filing of the Fresh Statement of Claim;
September 18, 2015: Defendant consents to filing of Fresh Statement of Claim, reserving their entitlement to bring a motion to strike out the jury notice;
October 20, 2015: Fresh Statement of Claim filed with court;
November 3, 2015: Defendant serves its Notice of Motion seeking an order striking out the jury notice;
January 19, 2016: Present motion argued. Decision reserved;
March 7, 2016: Anticipated pre-trial conference date;
November 7, 2016: Anticipated trial commencement. (15 days)
[4] The legal principles applicable in the present motion are the following: the right to proceedings before a jury is a substantive right only to be interfered with for clear and compelling reasons. King v. Colonial Homes Ltd 1956 CanLII 13 (SCC), [1956] S.C.R. 528, Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3rd) 660 (Ont.C.A.). Pleadings are closed in an action upon the delivery of a reply by the Plaintiff, or the expiring of time within which to reply, to each defense, or the noting in default of the defendant. Rule 25.05 – Rules of Civil Procedure.
[5] Amendments to pleadings may serve to extend the Rule 25.05 deadline depending upon the necessity of the amendments, the extent to which the amendments contain new allegations, the extent to which the amendments change the nature of the allegations, whether further discoveries are required flowing from the amendments, and the timeliness of the service of the jury notice. Dow v. Ottawa Hospital – Civic Campus [2005] O.J. No. 963 (Ont.Master).
[6] The completion of discoveries generally signifies an important step in the proceedings in terms of issues crystalizing and trial preparation beginning in earnest. A jury notice served following the completion of discoveries and the fulfilment of undertakings must therefore be examined carefully with a view to assessing prejudice flowing from the late filing. Some prejudice can be inferred. Specific prejudice must be considered.
Proper v. Nikore [2010] O.J. No. 1941 (Div.Ct.)
Rodic v. Centre for Addiction and Mental Health [2001] O.J. No. 2000 (Ont.Master)
[7] It is against this factual backdrop and analytical framework that the merits of the present motion must be considered.
[8] In my view, the very specific circumstances of this case compel the conclusion that the pleadings cannot be said to have been closed prior to the filing of the jury notice and the subsequent filing of the Fresh Statement of Claim, for the following reasons:
The action began as a $600,000 claim in wrongful dismissal.
Since the initial pleadings, the claims have come to include a claim in defamation, breach of contract, a two fold increase in damages claimed and allegations of spoliation and negligent investigation of complains made by the Plaintiff during her term of employment.
Most notably, the claim presently includes an allegation that, based on information flowing from documentary evidence and email transmissions, the Plaintiff was effectively terminated prior to her decision to abandon her employment. The amended pleadings in their final form, filed on consent on October 20, 2015 fundamentally altered the nature of the claim, the damages sought and the proposed means of proof.
The amendments to the pleadings in their final version are therefore necessary, contain new allegations and change in certain respects, the nature of the action.
The additional feature of the allegation of bad faith on the part of the Defendant, in my view, serves as a basis upon which the Plaintiff may choose to avail herself, at this juncture of her right to have the issues and damages assessed by a jury.
There is no suggestion that the relatively late filing of the jury notice was a matter of bad faith or otherwise tactically motivated. The Court cannot countenance practices which have the effect of unfairly influencing the proceedings. A case conference will be held in March 2016. A trial date is set for November 2016. To the extent that further discoveries may be necessary, time will permit. There is beyond the issue of some additional preparation and a slightly longer trial, no specific prejudice which has been argued.
The Defendant does not share the Plaintiff’s view that this matter should be heard by a jury. Being required to participate in a jury proceeding is not per se prejudicial. Prejudice is the result of unfair not unfortunate circumstances. There is no unfairness created by the Plaintiff’s present intention to have the matter tried before a jury, in light of the manner in which the pleadings have evolved into their final form.
Finally, there is, as yet, no Statement of Defence to the Fresh Statement of Claim. The Plaintiff’s allegations, if not denied, are considered proven. The Defendant was at liberty to consent to the filing of the Fresh Statement of Claim while reserving entitlement to challenge a jury notice, if filed. The mere filing of the Fresh Statement of Claim and the apparent need to defend against the new claims and assertions would tend to confirm the active state of the pleadings.
[9] Based on these considerations, the motion to strike out the jury notice is therefore denied.
[10] The parties may, unless they agree otherwise, exchange and file costs submissions not to exceed 2 pages in addition to accompanying documents, within 45 days of the release of the judgment herein.
Pelletier, J.
Released: February 11, 2016
CITATION: Katherine Kane v. RBC Life Insurance Company, 2016 ONSC 905
COURT FILE NO.: 13-58992
ONTARIO
SUPERIOR COURT OF JUSTICE
Katherine Kane Plaintiff
and –
RBC Life Insurance Company Defendant
REASONS FOR JUDGMENT
Pelletier, J.
Released: February 11, 2016