Court File and Parties

Citation: Ferguson v. Echlin, 2017 ONSC 6677 Court File No.: CV-1400000291-0000 Date: 2017-10-25 Superior Court of Justice - Ontario

Re: Andrea Ferguson, Robin Ferguson and Darryl Ferguson, Plaintiffs And: Stephen Michael Echlin and Gore Mutual Insurance Company, Defendants

Before: Mr. Justice Graeme Mew Counsel: Natasha O’Toole, for the Defendant Stephen Michael Echlin Heard: 25 October 2017, at Belleville

Endorsement

MEW J. (Orally)

[1] This is a motion brought by the defendant, Stephen Michael Echlin, for leave to serve and file a jury notice after the close of pleadings.

[2] This case involves a motor vehicle accident that occurred on 19 May 2013. In addition to the moving party, the plaintiffs sued Gore Mutual Insurance Company, in its capacity as the provider of family protection coverage to the plaintiffs.

[3] The case has progressed through the pleadings, discovery, pretrial and mediation phases and is presently scheduled to be tried during sittings which commence on 13 November 2018. Of significance, as presently scheduled, the trial will be before a judge and jury.

[4] In June 2017, the parties reached an agreement with respect to the settlement of the plaintiffs' claims against the defendant, Gore Mutual as a result of which, on 6 October, 2017, an order was taken out dismissing the action against Gore Mutual Insurance Company without costs.

[5] As I have already indicated, as matters presently stand, this matter is listed for trial as a jury matter. The party that filed the jury notice in this litigation is Gore Mutual Insurance Company.

[6] The present motion, which is now apparently unopposed, is predicated on the assumption by the moving party that, along with the dismissal of the action against Gore Mutual Insurance Company, the jury notice would also have been vacated.

[7] In my view, this is an erroneous assumption. It is not unusual where there are multiple parties in an action and one party files a jury notice for one or more of the other parties in the litigation, to rely on the fact that a jury notice has already being filed and as a consequence for that party to not file its own jury notice.

[8] Imagine if instead of the dismissal of Gore Mutual Insurance Company having taken place approximately a year before the trial, the parties had settled with Gore Mutual on the first day of the trial, after a jury had already been selected? Under those circumstances, would the jury notice automatically disappear as soon as the party against whom the action had been dismissed, exited from the litigation? I think not.

[9] I was unable, in preparing for this motion, to pinpoint any authority which said directly on point the principle I have just enunciated, namely, that once there is a jury notice, that jury notice remains effective, regardless of whether the party that filed the jury notice remains an active party to the litigation. I am, however, aware of cases in which it has been assumed that a jury notice would remain in place even though the party that filed the jury notice has left the litigation: for example, Chandra v. CBC, 2015 ONSC 2980, at para. 18

[10] In my view, the jury notice remains in place until the court says that the jury notice should be set aside. That typically occurs as a result of a motion brought by one or more of the active parties to the litigation to strike out the jury notice pursuant to Rule 47.02 of the Rules of Civil Procedure.

[11] On the motion now before me, I will grant the relief sought namely, to permit the defendant, Stephen Michael Echlin, to serve and file a jury notice after the close of pleadings. But for the reasons given, this remedy is surplus to needs.

Mew J

Date: 25 October 2017