Court File and Parties
Court File No.: CV-15-0090 Date: 2017-02-17
SUPERIOR COURT OF JUSTICE - ONTARIO
Between: THOMAS CHARLES MISASI, Plaintiff Counsel for the Plaintiff: Robert E. Somerleigh
And: 502046 ONTARIO INC., carrying on business as CALL OF THE NORTH, JOSEPH ANTHONY BOSANAC and PAULA BOSANAC, Defendants Counsel for the Defendants: Douglas Treilhard
Heard: February 2, 2017, at Thunder Bay, Ontario
Before: Mr. Justice W.D. Newton
Decision On Motion
Overview
[1] The defendant seeks leave to amend the statement of defence and file a jury notice almost two years after the close of pleadings and almost one year after the pretrial. The precipitating event was the appointment of new counsel for the defendants.
[2] The defendants also seek security for costs from the plaintiff, a nonresident.
The Action to Date
[3] The plaintiff alleges that he was injured in a fall on the defendants’ premises on September 20, 2014.
[4] This action was commenced in February 2015. The defence was delivered in April. Discoveries of both parties were completed in the fall of 2015. The trial record was served on January 4, 2016 and the pretrial held on May 12, 2016 before Fitzpatrick J. who traversed this action to the September 2016 Assignment Court to set a three day trial “sometime in 2017.”
[5] The defendants retained new counsel in August 2016. At that time, counsel for the defendants sought the consent of the plaintiff to file a jury notice. That consent was not forthcoming and this motion was originally returnable December 1, 2016. This matter is to be spoken to at the assignment court on February 27, 2017.
The Issues and the Positions of the Parties
The Proposed Amendment
[6] The proposed amendment seeks to put forward a “waiver” defence. The defendants rely upon an invoice which includes the following language:
CUSTOMER AGREEMENT: I (we) agree that I am (we are) fully responsible for my (our) own bodily safety and for any damages or abuse to any and all equipment and/or premises that may come about while I (we) use the equipment and/or premises listed here in during the complete rental period and further agree to pay for such damages or abuse as may be determined (sic) the owners.
[7] Although there is a place for “customer signature” the document is not signed.
[8] Although this document was produced prior to the examinations for discovery neither the plaintiff nor the defendants were asked questions pertaining to this document. The proposed amendment would require the plaintiff to deliver a reply and prepare the case afresh beginning with all the factors relevant to waivers, including sufficiency of notice and enforceability of the waiver.
[9] The defendants argue that Rule 26 of the Rules of Civil Procedure requires the court to grant leave unless there is non-compensable prejudice and that the onus of proving non-compensable prejudice is on the plaintiff. The plaintiff argues that, in the circumstances of this case, the waiver will be found to be of no effect.
The Jury Notice
[10] The defendants seek leave to file a jury notice based on this assertion in Mr. Bosanac’s affidavit:
Mr. Treilhard informed us that he had not found a jury notice in the file received from our former counsel, and that it appeared that one had not been delivered by the required deadline. It is important for us to be tried by a jury of our peers, so we immediately instructed Mr. Treilhard to take whatever steps were required to obtain the plaintiff’s consent or the court’s permission to extend the deadline.
[11] There is nothing from the former solicitor indicating that the failure to file a jury notice arose through inadvertence or otherwise explaining the failure to deliver a jury notice before the close of pleadings in April 2015.
[12] The defendants, relying upon a number of decisions, argue that they have a right to have this action tried by jury even after considerable delay. The plaintiff argues that transferring this action to the jury list will cause delay in having this matter tried and that this case would have been presented differently had the jury notice been delivered prior to discoveries and pretrial.
Security for Costs
[13] The defendants also seek security for costs against the plaintiff who is a nonresident. The statement of claim identified the plaintiff’s residence as Kansas City, Missouri. Notwithstanding that clear statement of residence, counsel for the defendants wrote to counsel for the plaintiff requesting a formal declaration of the plaintiff’s ordinary residence on August 30, 2016.
[14] Particulars of the costs being sought were not set out in any affidavit but rather in the defendants’ factum.
[15] The defendants argue that the claim is without merit and there is no evidence that any judgment for costs they obtain would be enforceable. The plaintiff argues that he has a strong case on liability but did not offer any evidence about the enforceability of an Ontario judgment in Missouri.
Analysis and Disposition
The Proposed Amendment
[16] Although I share the plaintiff’s concern that, in the circumstances, this unsigned “waiver” will likely be found to be no effect, this is a matter to be determined at trial. Rule 26 instructs me to grant leave “on such terms as are just.”
[17] In the circumstances, I grant leave to amend the pleading as asked. Leave is granted on the following terms:
(a) that the defendants pay the plaintiff’s reasonable substantial indemnity costs in pleading to the proposed amendment, preparing for and attending on any additional discovery as required and preparing for and attending on any additional pretrial as required;
(b) that the plaintiff produce its bill of costs for each of the foregoing stages upon completion and said costs are to be paid by the defendants within 30 days;
(c) that, should the parties not agree on the quantum of costs, the plaintiff shall file with the court costs argument limited to two pages plus costs outline. Thereafter, the defendants shall have five days to deliver their costs submissions, if any, also limited to two pages plus cost outline. I will remain seized of this matter to deal with these costs; and
(d) that the amended statement of defence be delivered forthwith and that the reply be delivered within 10 days thereafter. Any further discovery is to be completed within 60 days thereafter.
The Jury Notice
[18] During argument on the amendment, I indicated to counsel for the plaintiff that I did not view the granting of the amendment and the consequent reopening of pleadings as opening the door to an an automatic right to file a jury notice in the circumstances. That proposition is supported in case law (See for example Arsenault v. Baja Motorsports LLC, 2012 ONSC 247).
[19] In Proper v. Nikore, 2010 ONSC 2307, the Divisional Court reviewed the prior decisions on leave to late file a jury notice. In that action, the original defendants included a municipality and, therefore, trial by jury was precluded by statute. After the close of pleadings, the municipality was removed as a defendant and the plaintiff brought a motion for leave to file a jury notice. Molloy J. reviewed the earlier authorities and concluded that there were two key factors to be taken into account in determining whether to permit delivery of a jury notice after the close of pleadings: “1) the circumstances of the delay; and (2) whether there is prejudice to the other side” (at para. 26).
The Circumstances of the Delay
[20] Molloy J. stated:
27 With respect to delay, it is relevant to consider both the length of the delay and the reasons for the delay. The longer the delay, and the closer the case is to trial, the greater will be the likelihood that the delay will be considered unconscionable delay. Where there has been an unforeseen development in the case (such as an increase in the quantum of damages sought, or the addition or removal of parties or causes of action), the delay is less likely to be objectionable. Likewise, where the intention had been to deliver a jury notice and it was solely due to the inadvertence of counsel that this was not done, the delay is less likely to be considered unconscionable. [Emphasis added.]
[21] With respect to delay, this action is not “on the eve of trial,” but it is about to go to the nonjury assignment court. In this region, pretrial conferences are scheduled well in advance of the trial date. The pretrial was held in May, 2016 and it was ordered that this three day trial proceed in 2017.
[22] There has not been an “unforeseen development in the case.” There has not been an increase in the quantum of damages sought or the addition or removal of parties or causes of action.
[23] The failure to deliver a jury notice was not due to the inadvertence of counsel. Although Molloy J. stated, at para. 15, that “it is not strictly necessary for the moving party to show inadvertence of counsel,” she concluded that “the reasons for the delay may be a relevant factor in determining whether a delay is unconscionable.”
[24] All the other cases relied upon by the defendants involved inadvertence or a mistake by counsel in failing to file a jury notice (See Cipparone v. Royal & Sun Alliance Insurance Co. of Canada, 2010 ONSC 4528 and Asrat v. 1438305 Ontario Inc., 2015 ONSC 4208).
Whether there is Prejudice to the Other Side
[25] Molloy J. continued:
28 There is no presumption of prejudice. However, logical inferences may be drawn in appropriate cases. The closer the action is to trial, the more likely it will be that prejudice is inferred. For example, by the week before trial, counsel will likely have prepared witnesses and exhibits based on presentation to a judge alone. Preparation for a jury trial has substantial differences. A motion judge might well take that into account even in the absence of specific evidence. Similarly, if the effect of the jury notice will be to delay the trial, prejudice to the other party can be inferred. However, in many cases, prejudice will not be apparent without some evidence from the party alleging it. I appreciate that this may present some difficulties, or perhaps awkwardness, where the prejudice arises from the choice of which witnesses to call or other tactical decisions, such as whether to undertake surveillance of a plaintiff. In those situations some allowances must be made for a certain degree of vagueness in the affidavit material. The party seeking the indulgence cannot be permitted to gain an advantage by cross-examining opposing counsel on issues of trial tactics or matters of solicitor and client privilege. However, the party claiming prejudice must at least assert the existence and general nature of the prejudice. [Emphasis added]
[26] I accept the assertions in the affidavit and in argument that allowing a jury notice will delay the trial of this matter. In this region, nonjury sittings are held roughly every two months with, usually, multiple judges available to try the cases. There are fewer jury sittings with very long civil matters and, of course, criminal matters often must be given priority for constitutional reasons. I accept the assertion in the affidavit filed on behalf of the plaintiff that this trial would be delayed until at least 2018 if this matter is transferred to the jury list.
[27] I agree with the statement that preparation for jury trial has substantial differences. It is a given that, in most cases, it will take longer to try a case with a jury. Not only is time required for jury selection but also the procedural aspects of a jury trial simply require more time. Then, there are pre-charge conferences and the crafting of questions for the jury which, in light of the “waiver” amendments, would require consideration.
[28] I also accept the assertion made in the affidavit filed on behalf of the plaintiff that counsel for the plaintiff would have conducted this case differently including the type of damages evidence that he would present. Counsel for the defendants took exception to the fact that the source of this information was counsel who was arguing the motion. In the circumstances of this case, I do not accept that as a bar to the receipt of this evidence.
[29] In conclusion, I find that the circumstances of the delay are unconscionable. In the circumstances, to adopt the language of Mulligan J. in Arsenault, I conclude that there is no “principled basis” for the request to deliver a jury notice this late in the proceeding (at para. 17), given the lack of unforeseen developments in this case and the lack of evidence of inadvertence. I am left to conclude that the desire for a jury notice arose from advice or recommendations from new counsel. Similarly, I accept that there is prejudice to the plaintiff. Accordingly, I decline to grant leave for late filing of the jury notice.
Security for Costs
[30] The material filed by both sides was lacking. For me to properly consider the request for security for costs the defendants are to file a fresh affidavit within 10 days setting out the costs claimed for each stage to date and the anticipated additional costs. Within 10 days thereafter, the plaintiff is to file a fresh affidavit addressing the costs sought and setting out what exigible assets the plaintiff has in Missouri and the legal steps required to enforce an Ontario judgment in Missouri. If, after reviewing these affidavits, I require submissions I will notify counsel.
Costs
[31] The costs of this motion are deferred pending my decision on the security for costs issue.
“Original signed by”____ The Hon. Mr. Justice W.D. Newton