Court File and Parties

COURT FILE NO.: CV-15-0090-00 DATE: 2017-06-06 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THOMAS CHARLES MISASI Mr. Robert Somerleigh, for the Plaintiff Plaintiff (Responding Party)

- and -

502046 ONTARIO INC. carrying on business as CALL OF THE NORTH, JOSEPH ANTHONY BOSANAC and PAULA BOSANAC Mr. Douglas Treilhard, for the Defendants Defendants (Moving Parties)

HEARD: In Writing (Thunder Bay)

Reasons on Motion for Leave to Appeal

Madam Justice B. R. Warkentin, R.S.J.

[1] This is a motion by the defendants for leave to appeal to the Divisional Court from the order of Justice D. Newton (the Motion Judge) dated February 17, 2017, pursuant to Rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Procedural History and Background

[2] The Statement of Claim in this proceeding alleges that the plaintiff was injured in a slip and fall on the defendants’ premises on September 20, 2014. This action was commenced on February 26, 2015. The Statement of Defence was delivered on March 31, 2015 and pleadings were closed on April 10, 2015.

[3] After close of pleadings on April 10, 2015 the following steps were taken in moving the action forward: a) Examinations for Discovery were completed in the fall of 2015; b) The plaintiff served their Trial Record on January 4, 2016; c) A Pre-Trial was held on May 12, 2016 before Justice B. Fitzpatrick who directed that this action be placed on the September 2016 Assignment Court for the purpose of setting a 3 day trial to be held “sometime in 2017”; d) In August 2016 the defendants retained new counsel; e) On August 30, 2016 the defendants’ new counsel served a Jury Notice on counsel for the plaintiff and requested that they consent to the late filing (the service of the Jury Notice was approximately 16 months past the close of pleadings; when it was required to be served under the Rules). The plaintiff refused to consent; and f) On February 2, 2017, in a motion originally returnable in December 2016, the defendants sought leave to file a jury notice late; which was denied by Justice Newton on February 17, 2017 in written reasons.

[4] In reaching his decision, the Motion Judge considered the two factor test in determining whether or not leave to file a jury notice after the close of pleadings should be permitted as set out in the case of Proper v Nikore, 2010 ONSC 2307 at para 26 (Div Ct). The two factors for consideration are: a) The circumstances of the delay; and b) whether there is prejudice to the other side.

[5] In paragraphs 27 and 28 of their reasons, the Court in Proper explained the relevant factors to be considered when applying the two factor test:

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.

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.

[6] The Motion Judge at paragraphs 21-24 of his reasons discussed his findings on the reasons for the delay in the filing of the Jury Notice. He found none of the factors that might excuse the delay as set out in paragraph 27 of Proper were present in this case.

[7] The Motion Judge then discussed how the delay in seeking to file a Jury Notice factored into his decision. He found that while the action was not on the “eve of trial”, it was about to go on the nonjury assignment court. He noted that in the Northwest Region, pretrial conferences are scheduled well in advance of trial and at that the trial was expected to proceed in 2017 for three days.

[8] With respect to the issue of prejudice, the Motion Judge at paragraphs 26 - 28 of his reasons found that delay of the trial could be inferred if he were to permit the late filing of the Jury Notice on the basis that in the Northwest Region nonjury sittings occur roughly every two months with multiple judges available to hear a trial of this nature; whereas jury sittings are less frequent with priority given to criminal and long civil cases.

[9] The Motion Judge also accepted the plaintiff’s argument that proceeding with a jury would take more preparation and trial time and commented on the various additional steps required when trying a case with a jury, including time for jury selection, pre-charge conference meetings and jury deliberation. He noted that the 3 day judge alone trial that was to be tried in 2017, if heard with a jury, would not be scheduled until sometime in 2018.

[10] The Motion Judge, over the objections of counsel for the defendants on the basis that this evidence was not properly before the court, accepted the argument that counsel for the plaintiff would have conducted this case differently if the Jury Notice had been filed as proscribed by the Rules.

[11] Based upon the evidence the Motion Judge accepted, he found (at para 29) that the circumstances of the delay in filing the Jury Notice were unconscionable. He determined there was no “principled basis” for the request to deliver a jury notice this late in the proceeding when there were no unforeseen developments in the case and no evidence of inadvertence with respect to the filing of the jury notice. He concluded that the desire by the defendants for the jury notice arose from the advice or recommendations of the defendants’ new counsel.

[12] In rejecting the submissions of counsel for the defendants, the Motion Judge noted that the law relied upon by the defence in support of accepting the late filing of the Jury Notice dealt with inadvertence or a mistake by the party that failed to file the Jury Notice. He found that those factors were not present in the case before him.

[13] The Motion Judge concluded that the delay would be prejudicial to the plaintiff and refused to grant leave to file the Notice late.

[14] The Defendants seek leave to appeal that ruling.

Test for Leave to Appeal

[15] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is strict. There are two possible routes upon which leave may be granted. Both routes involve a two-part test and, in each case, both branches of the two-part test must be met before leave may be granted.

[16] Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal an interlocutory Order shall not be granted unless: a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or b) there appears to the judge hearing the motion good reason to doubt the correctness of the Order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[17] Counsel for the Defendants seeks leave to appeal under both routes in Rule 62.02.

[18] For the reasons set out below, the motion for leave to appeal is denied.

Conflicting Decision

[19] The test under rule 62.02(4)(a) has two branches. First, the applicant must show that there is a conflicting decision by another judge in Ontario or elsewhere on the matter involved in the proposed appeal. Second, the applicant must satisfy the court that it is desirable that leave to appeal be granted.

[20] To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(a), it is essential that the applicant satisfy the court that there is a conflicting decision where there is a difference in the principle chosen as a guide to the exercise of a Judge’s discretion (Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 at para. 7 (Div. Ct.)).

[21] A judge who exercises his or her discretion when the circumstances of the case are different than in other jurisprudence is not necessarily making a “conflicting decision”. A motion judge’s decision is entitled to deference. Therefore, in order to be successful on a motion for leave to appeal, it is necessary for the party seeking leave to demonstrate that there is a difference in the principles chosen by the motion judge as a guide to the exercise of discretion, and not simply a different set of facts leading to a different conclusion Proper at para. 33.

[22] Counsel for the defendants relied upon the 1983 case of Jackson v Hautala, 1983 Carswell Ont 439 (Div Ct), at para 13, in support of the proposition that it is a reversible error not to extend the time for filing a jury notice after a change of solicitors has occurred.

[23] I do not find that case to stand for that proposition. Every case is decided on its own facts. In Jackson, the court found that there was no prejudice to the party opposing the jury as a result of the delay in the filing of the jury notice. That is not the finding of the Motion Judge here. In this case the Motion Judge found there would be prejudice to the plaintiff as a result of unconscionable delay if a jury notice were permitted.

[24] Counsel for the defendants in their submissions in this motion for leave also referenced the same case law as he had before the Motion Judge in setting out when leave should be granted to file a jury notice late. As already noted, the Motion Judge had considered and rejected the principles contained in that case law as being inapplicable to the facts of this case.

[25] It was open to the Motion Judge, on the facts before him to reject those principles as being inapplicable. His decision to do so does not support the defence position that there are conflicting decisions on the matters involved in this appeal. The Motion Judge applied the principles of the two factor test in Proper, as he was required to do. There is no conflicting decision in Ontario that stands for a different test to be applied. The Motion Judge’s findings as to how he reached his decision within that two factor test is subject to deference.

[26] As such, I find that the first branch of the test under rule 62.02(4)(a) has not been met; therefore, it is not desirable that leave be granted on the basis that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal.

Good Reason to Doubt Correctness of the Decision

[27] The test under rule 62.02(4)(b) contains two branches that are conjunctive. To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(b), the Defendants must satisfy the court that (1) there is good reason to doubt the correctness of the motion judge’s decision and (2) that the appeal raises matters of general importance (Bell ExpressVu Limited Partnership v. Morgan (2008), 67 C.P.C. (6th) 263 at paras. 1-3 (Ont. Div. Ct.)).

[28] The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motion judge. The test is whether the decision is open to serious debate (Judson v. Mitchele, 2011 ONSC 6004 at para 15, 108 O.R. (3d) 129. See also Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 at 284 (Gen. Div.)).

[29] Counsel for the defendants argued that there is good reason to doubt the correctness of the Motion Judge’s reasons because: a) The motion judge erred in finding that it was unconscionable for a party to seek to file a jury notice on advice of new counsel; b) The motion judge erred in basing his decision on “prejudice” that was not caused by the delay in filing the jury notice; c) The motion judge erred in permitting plaintiff’s counsel to be a witness in his own case; and d) The motion judge erred in finding that expert evidence that is unnecessary before a judge may be necessary before a jury.

[30] With respect to the first alleged error, the Motion Judge did not find it was unconscionable for a party to seek to file a jury notice on advice of new counsel. Had he done so, I agree with defence counsel that such a finding would have satisfied the first branch of this route to appeal.

[31] What the Motion Judge found was that the delay that would result from the filing of a jury notice would be unconscionable on the facts of this case. The Motion Judge also found that the retention of new counsel was not one of the bases upon which the delay in filing of a jury notice at the late stage in the pre-trial process that this case had reached, would be reasonable.

[32] I have already dealt with the Motion Judge’s reasoning on the late filing of a jury notice when a client receives advice of new counsel in the previous section on conflicting case law. That same analysis applies here. I do not find that there is good reason to doubt the correctness of the Motion Judge’s decision regarding the issue of delay.

[33] With respect to the second alleged error regarding the issue of prejudice, defence counsel submitted that the only relevant prejudice the Motion Judge should have considered was prejudice caused by delay. He argued that the Motion Judge failed to understand that the fact the trial would be longer and more costly if heard before a judge and jury was irrelevant in the analysis regarding delay.

[34] Again, I disagree with the characterization of the Motion Judge’s analysis. It was open to the Motion Judge to find, as he did, that based upon the manner in which non-jury and jury trials proceed in the Northwest Region, as well as the stage that the proceeding had reached when the defence sought to file a Jury Notice, that there would be prejudice to the plaintiff if he permitted the Notice to be filed because of the resulting delay in reaching a trial.

[35] It was open for the Motion Judge to consider the prejudice caused by the circumstances of delay in that context. There was no evidence before me to suggest that the Motion Judge was incorrect when he found that a judge alone trial would be reached a year earlier than a judge and jury trial. Deference must be provided therefore to the Motion Judge’s reasons on these findings with respect to the issue of prejudice to the plaintiff.

[36] The Motion Judge accepted that if the matter were to proceed before a jury, that the matter would not reach trial until 2018 rather than in 2017 as had been contemplated. It was this basis for finding that the delay was unconscionable on all of the facts before him.

[37] With respect to the alleged error that the Motion Judge permitted plaintiff’s counsel to present his own evidence; namely that he would have conducted the case differently if a jury notice had been filed in accordance with the Rules; this type of evidence, while typically not permissible when the affiant is the counsel arguing the motion, presumably found its way into this hearing as a result of indices of possible prejudice as described in the Proper case at paragraph 28, where the court noted that: 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.

[38] The test in considering these issues on a leave application is not whether the Motion Judge erred, but whether or not there is reason to doubt the correctness of the Motion Judge’s decision. I find that even if the Motion Judge had rejected the evidence regarding trial tactics by plaintiff’s counsel, it is unlikely he would have reached a different conclusion in finding that the delay would have caused prejudice to the plaintiff. Therefore I am not left in doubt as to the correctness of the Motion Judge’s decision.

[39] The last alleged error; that the Motion Judge erred in finding that expert evidence that is unnecessary before a judge may be necessary before a jury, does not form part of the Motion Judge’s reasons. I have read the reasons over several times and cannot find where the Motion Judge made this finding. I therefore did not give any consideration to this ground in the motion for leave to appeal.

[40] The defendants have therefore failed to satisfy the court that there is good reason to doubt the correctness of the Motion Judge’s decision.

[41] Notwithstanding that I did not find there to be a basis to doubt the correctness of the Motion Judge’s decision, because this route to an appeal requires both such a doubt and that the proposed appeal involves matters of such general importance that leave to appeal should be granted, it is worthwhile to comment on the second branch of this route to an appeal.

[42] For the purpose of rule 62.02(4)(b), matters of importance refer “to matters of general importance, not matters of particular importance relevant only to the litigants. “Matters of general importance” in this branch, relate to matters of public importance and matters relevant to the development of the law and the administration of justice” (Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 at 113 (Div. Ct.)).

[43] Notwithstanding that the right to a trial by jury is a matter of general importance, on the facts of this case and in light of the Motion Judge’s reasons, I find that while the matters at issue are of great importance to the parties before me, I do not find that they are matters of such general public importance that leave to appeal should be granted even had there been reason to doubt the correctness of the Motion Judge’s decision.

[44] The motion for leave to appeal is therefore dismissed.

[45] If the parties are unable to agree on costs, they may make written submissions on costs to me within 30 days. The submissions shall be no longer than four pages together with any Bill of Costs.

Madam Justice B. R. Warkentin, R.S.J. Released: June 06, 2017

COURT FILE NO.: CV- 15-0090-00 DATE: 2017-06-06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: THOMAS CHARLES MISASI Plaintiff - and – 502046 ONTARIO INC. carrying on business as CALL OF THE NORTH, JOSEPH ANTHONY BOSANAC and PAULA BOSANAC Defendant REASONS ON MOTION FOR LEAVE TO APPEAL B. Warkentin R.S.J. Released: June 06, 2017