MOTION HEARD: 20180201
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marie Gross, Plaintiff
AND:
TIC Travel Insurance Coordinators Ltd., Defendant
BEFORE: Master B. McAfee
COUNSEL: Janet Jin, Counsel for the Moving Party, the Defendant
Kaitlyn MacDonell, Counsel for the Responding Party, the Plaintiff
HEARD: February 1, 2018
REASONS FOR DECISION
1This is a motion brought by the defendant TIC Travel Insurance Coordinators Ltd. for various relief including an order extending the time to deliver a jury notice. The motion has resolved save for the issue of an extension of time to deliver a jury notice, which is opposed by the plaintiff Marie Gross.
2The within action arises as a result of the defendant’s denial of coverage under a travel policy of insurance.
3Pleadings closed in December 2012.
4The defendant was examined for discovery on June 29, 2015. The plaintiff was examined for discovery on May 3, 2016.
5The plaintiff set the action down for trial on November 27, 2015. On or about November 25, 2016, the action was struck from the list. On December 14, 2016, leave was granted to restore the action to the trial list.
6The trial of this action is scheduled for November 13, 2018, for 7 days, whether proceeding with or without a jury.
7Rule 47.01 of the Rules of Civil Procedure provides:
A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or any other statute requires that the action be tried without a jury.
8As stated in Proper v. Nikore, 2010 ONSC 2307 (Div.Ct.) at para. 26:
…there are two key factors to be taken into account in determining whether to permit the service 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.
9The defendant’s position is that both key factors have been satisfied. The plaintiff’s position is that neither key factor has been satisfied.
10In support of the motion the defendant relies on the affidavit of the Director of Claims Canada of Allianz (the defendant merged with Allianz effective January 1, 2015). The original lawyer with carriage of the matter did not deliver a jury notice. In September 2013, the matter was assigned to the current lawyer. In or about May or June 2017, when the current lawyer was completing the trial certification form which asks the parties to confirm whether this is a jury or non-jury trial, the current lawyer became aware that a jury notice had not been filed by the original lawyer. As soon as the current lawyer noted the error, she immediately served a jury notice and noted on the trial certification form that the defendant intends to proceed by way of jury, which would be the subject of a motion. The evidence of the Director of Claims is that he believes the failure of the original lawyer to deliver a jury notice is inadvertent.
11I have considered the circumstances of the delay. The evidence before me is that the failure to deliver a jury notice is inadvertent. The current lawyer advised of the intention to file a jury notice as soon as she realized that one had not been filed. A motion was scheduled shortly after the plaintiff’s lawyer confirmed that she would not consent to an order extending the time to deliver a jury notice. The within motion was served at a time when a trial date had not yet been scheduled. A trial date has now been scheduled for approximately 9 months from now.
12Although the statement “inadvertence of counsel” does not grant an automatic pass on the first part of the test (Smith v. Trisect Construction Corp., 2016 ONSC 782 (S.C.J.) at para. 9), I am satisfied that in considering all of the circumstances of the delay, there has not been unconscionable delay.
13I am also satisfied that there is no prejudice to the plaintiff as a result of the delay in delivering the jury notice.
14As stated by Justice Perrell in Janet Doe v. Bragg (2005), 19 C.P.C. (6th) 224 (Ont.S.C.J.) at para. 35 as cited in Proper at para. 25:
The problem in the case law is that prejudice in my view should not be simply assumed by some arbitrary procedural benchmark. Although the discovery stage had been reached in the immediate case, it was not demonstrated to me that the plaintiff was prejudiced in a way that genuinely related to the expectation that the action would be tried by a judge alone or in any other material way.
15Although examinations for discovery are complete, as stated in Proper at para. 24, the completion of examinations for discovery is not particularly relevant to the issue of prejudice. Discoveries are fact-finding. As stated by Justice Perrell in Janet Doe at para. 31 as cited in Proper at para. 24, “The pursuit of truth promoted by the discovery process should not be influenced by the mode of trial.”
16There is no evidence of any trial preparation having taken place. There is no evidence that plaintiff’s counsel would have conducted the action differently had a jury notice been delivered in accordance with the Rules.
17On January 8, 2018, the trial was set for November 13, 2018, for 7 days whether proceeding with or without a jury. The length of trial may be reduced if the within motion is not granted. There was no evidence before me that on January 8, 2018, an earlier trial date could have been scheduled but for the possibility that this matter may proceed by way of jury.
18A longer and more costly trial is not prejudice as a result of the delay in serving the jury notice (Proper at para. 32).
19I am satisfied that there is no prejudice to the plaintiff as a result of the delay in delivering the jury notice.
20The motion is granted.
21The parties agree that the successful party on the motion would be awarded costs of the motion in the all-inclusive amount of $1,000. payable within 30 days. The defendant was successful on the motion. As agreed, costs of the motion are fixed in the all-inclusive amount of $1,000. payable by the plaintiff to the defendant within 30 days.
22Order to go as follows:
The time to deliver a jury notice is extended to 30 days from today’s date;
Costs of the motion are fixed in the all-inclusive amount of $1,000. payable by the plaintiff to the defendant within 30 days.
Master B. McAfee
Date: February 7, 2018