Giuliana D’Alessandro v. Her Majesty The Queen et al.

COURT FILE NO.: CV-12-111482

DATE: 20190905

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Giuliana D’Alessandro Plaintiff

– and –

Her Majesty The Queen, in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, Her Majesty the Queen, in Right of the Province of Ontario, represented by the Minister of Natural Resources and Marianne Davies, Litigation Administrator for the Estate of Vincenzo D’Alessandro, Deceased Defendants

COUNSEL:

J. John Vettese, for the Plaintiff

Todd J. McCarthy, for the Defendant, Marianne Davies, Litigation Administrator for the Estate of Vincenzo D’Alessandro, Deceased

HEARD: August 15, 2019

REASONS FOR DECISION

CHARNEY J.:

[1] The plaintiff has brought this motion for an order:

a. That the parties proceed to trial on a bifurcated basis in accordance with the parties previous agreement;

b. In the alternative, an order barring the defendant from obtaining a defence medical examination in accordance with the parties’ previous agreement; and

c. Striking the Jury Notice.

[2] The defendant opposes the relief sought, and brings a motion to compel the plaintiff to attend the medical examination.

Background

[3] The action arises out of a motor vehicle accident that occurred on October 22, 2010. The plaintiff, Giuliana D’Alessandro (Giuliana), was a passenger in a vehicle driven by her husband, Vincenzo D’Alessandro (Vincenzo). The plaintiff alleges that her husband was speeding and struck a deer. The plaintiff was injured in the accident.

[4] The Statement of Claim was issued on October 9, 2012. Vincenzo’s Statement of Defence and Jury Notice were served on June 14, 2013.

[5] Examinations for discovery were conducted in June and October 2014. The plaintiff provided the defendant with pre- and post-accident reports and updated medical records.

[6] In August 2015, the defendant obtained an expert report from a forensic engineer to evaluate the cause of the accident and injuries.

[7] On January 21, 2016, an Order was obtained dismissing the action against the government defendants, leaving Vincenzo as the sole defendant.

[8] Vincenzo died on October 1, 2016.

[9] The plaintiff served and filed a trial record on June 7, 2017. Further medical records were provided by the plaintiff in May and July 2017.

[10] On January 18, 2018, the parties agreed to schedule a pre-trial for September 18, 2018.

[11] On July 5, 2018, the plaintiff served a Rule 53 Expert Report by Dr. Sharma, physiatrist.

[12] Soon after the receipt of this report, on July 25, 2018, Counsel for Vincenzo requested a defence medical examination. The plaintiff did not agree to attend as it was scheduled to take place in October 2018, after the time for filing expert reports under Rule 53.03 (2), which requires a party who intends to call a responding expert witness at trial to serve an expert report not less than 60 days before the pre-trial conference.

[13] The pre-trial conference took place on September 18, 2018. The parties were unable to resolve their dispute.

[14] Following discussions at the pre-trial, the parties agreed to bifurcate the trial by first having a trial on liability only. The parties attended Trial Scheduling Court on October 25, 2018, and the liability trial was scheduled on consent for May 2019. Counsel for Vincenzo agreed that the defendant would not take steps to bring a motion to compel the plaintiff to attend the disputed medical examination until after the liability trial was completed.

[15] A teleconference was scheduled with McKelvey J. on February 28, 2019, to formalize the Order for bifurcation. At that teleconference, counsel for Vincenzo advised that he was withdrawing his agreement to bifurcate the trial. The endorsement of McKelvey J. states:

[Counsel for the defendant] has advised that while his recommendation was to recommend a bifurcated trial, the instructions he received today are not to agree. There will therefore be no bifurcation on consent. This matter is currently on the May sittings list. The Plaintiffs will now seek an adjournment of the trial and the defence agrees. This matter is adjourned to the Trial Scheduling Court on March 28, 2019.

[16] On March 28, 2019, the parties attended Trial Scheduling Court and the action was set down for trial on liability and damages for the November 2019 trial sittings.

[17] The defendant’s motion for a defence medical was originally scheduled for June 12, 2019, for a defence medical scheduled in July 2019. The motion was adjourned by Master Brott because the defendant had failed to appoint an estate administrator and regularize the pleadings.

Analysis

(i) Leave Under Rule 48.04

[18] Rule 48.04 provides that any party who has set an action down for trial or who has consented to the action being placed on the trial list shall not initiate any motion or form of discovery without leave of the court. The objective of this rule is to ensure that matters are not set down for trial until they are ready for trial in order to avoid delays and the loss of valuable court time (BNL Entertainment Inc. v. Ricketts 2015 ONSC 1737, at para. 11).

[19] In BNL Entertainment, Master Muir reviewed the competing case law for granting leave under Rule 48.04, and concludes at para. 14 that:

It is desirable for the court to apply a flexible test when exercising its discretion to grant leave under Rule 48.04(1). The court should consider all of the circumstances of the matter before it and make the order that is just in the circumstances of each particular case. This approach is consistent with the overall interpretive provision found in Rule 1.04(1) which requires that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[20] I agree with this analysis and adopt his conclusion. Both parties are given leave to bring their respective motions.

(ii) Bifurcation

[21] Rule 6.1.01 of the Rules of Civil Procedure provide:

6.1.01 With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.

[22] The case law confirms that the court will not order bifurcation of a trial where a jury notice has been served without the consent of the parties: Kovach v. Linn, 2010 ONCA 126, at para. 42: “The practice in Ontario has long been understood to preclude the bifurcation of trials where a jury notice has been served, in the absence of consent”.

[23] Indeed, Rule 6.1.01 has been interpreted as precluding the bifurcation of any trial – jury or non-jury - without the consent of the parties: Bondy-Rafael v Potrebic, 2015 ONSC 3655 (Div. Ct.), although the application of Bondy-Rafael to non-jury trials remains an issue of debate: Duggan v. Durham Region Non-Profit Housing Corporation, 2018 ONSC 1811.

[24] Defendant’s counsel argued that although he recommended bifurcation to his client, his client did not consent to bifurcation. This position is inconsistent with the correspondence of counsel. The defendant’s agreement was confirmed by counsel for the defendant in his November 2, 2018 letter to counsel for the plaintiff, where he states:

Further, I will endeavour to coordinate a phone call with McKelvey J. toward a consent order with respect to the bifurcation of liability and damages as agreed.

[25] This agreement was confirmed again by counsel for the defendant in his letter to McKelvey J. dated February 13, 2019, where he stated:

The parties attended Trial Scheduling Court in October and have agreed to proceed with liability only during the May 2019 sittings…At this time we are requesting a brief teleconference with Your Honour to secure the Order with respect to bifurcation…

[26] In the alternative, counsel for the defendant takes the position that the defendant may withdraw its consent or agreement to bifurcation at any time before the order for bifurcation is issued. McKelvey J. did not issue an order with respect to bifurcation, and therefore, the trial must proceed as a single proceeding to deal with both liability and damages.

[27] The only relevant authority I could find on this issue is the decision of D.M. Brown J. (as he then was) in MTCC No. 831 v. Khan, 2012 ONSC 5037. In that case, the parties had consented to resolving a “Threshold Issue”, which bifurcated the trial on the basis of whether a loan was enforceable against the condominium corporation. As the litigation continued, a number of parties reconsidered the advisability of proceeding on that basis, and sought to withdraw their consent. Brown J. accepted the principle that a party can withdraw their consent to proceed on a bifurcated basis. He states, at paras. 6 - 7:

By giving directions for the hearing of the Threshold Issue, in effect I was ordering a separate hearing on one, of several, issues raised by these actions. Rule 6.1.01 gives the court jurisdiction to make such a bifurcation order with the parties’ consent. At the time I made that order, I had the consent of all the parties.

Now, some parties are withdrawing their consent. I accept that they are doing so based on their greater understanding of the evidence as it has emerged in recent months and genuine concerns about whether a determination of the Threshold Issue really will result in the most cost-effective process for a final determination of these actions on their merits. Given their withdrawal of consent, I have concluded that I do not possess the jurisdiction under Rule 6.1.01 to compel the parties to proceed with a hearing on the Threshold Issue scheduled for early October.

(Emphasis added)

[28] See also: Epstein Equestrian Enterprises Inc. v. Frank Jonkman and Sons Limited, 2012 ONSC 5191, at paras. 2 - 9.

[29] The question of whether to bifurcate a trial is a matter of litigation strategy. Litigation is a dynamic process. Litigants are permitted to change their strategy as the case evolves, and while there may be costs consequences for such changes, they are generally permitted to do so unless prejudice would result that could not be compensated for by costs or an adjournment.

[30] Accordingly, I conclude that the defendant is permitted to withdraw its consent to the bifurcated trial, and, therefore, I have no jurisdiction to order the bifurcation of this trial.

(iii) Defence Medical

[31] The defendant seeks the attendance of the plaintiff at a first defence medical to address the physical condition of the plaintiff which she has put in issue in this proceeding. The defendant has been seeking this defence medical since receiving Dr. Sharma’s expert report in July 2018. The defence argues that without the benefit of a defence medical the defendant’s ability to fully address the plaintiff’s damages claim will be compromised.

[32] In the present case, the defendant advised the plaintiff of its request for a defence medical within a couple of weeks of receiving Dr. Sharma’s report. The purpose of defence medical examinations is to put the parties on a basis of equality as nearly as it is possible. In Bonello v. Taylor, 2010 ONSC 5723, D.M. Brown J. summarized the applicable factors to be considered on a motion for a further or second defence medical examination. That decision recognized (at para. 15) that, “[t]he right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness.” While recognizing that the determination must turn on the specific equities of a case, one of the factors that the court identified is that (at para. 16): “A request may be legitimate where there is evidence that … the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments…”

[33] In addition D.M. Brown J. commented on the issue of matching reports:

Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.

[34] What is being requested in this case is a first defence medical. In my view, trial fairness requires that a first defence medical be permitted. While we are close to the trial date, the defendant did offer to conduct the defence medical as early as October 2018, and again in July 2019, but these dates were declined by the plaintiff.

[35] The defendant is not, however, totally blameless in this matter. Their previous consent to bifurcation created a situation in which both counsel thought that a defence medical might not be necessary, or at least not necessary until after the trial on liability. The defence medical was further delayed by the defendant’s failure to appoint a defence administrator.

[36] The defendant did consent to this matter being placed on the trial list for November 2019. It would not be fair to the plaintiff to permit the defence medical to lead to an adjournment of the trial. Accordingly, if the defendant schedules a defence medical for September 2019, it must serve the defence expert medical report by October 11, 2019.

(iv) Striking the Jury Notice

[37] Finally, the plaintiff moves pursuant to s. 108 (3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 47.02(2) of the Rules of Civil Procedure, to strike the jury notice served by the defendant.

[38] Section 108(3) of the Courts of Justice Act provides:

On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.

[39] Rule 47.02(2) provides:

A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.

[40] The plaintiff argues that having this case tried before a jury would result in severe prejudice to the plaintiff because this is a case in which the plaintiff is suing her deceased husband as a result of the motor vehicle accident. A judge would understand that this is really a claim against her deceased husband’s motor vehicle insurer, but the jury would not necessarily understand this, and the plaintiff would not be able to advise them of this fact. Due to these restrictions, the plaintiff would start off in a prejudiced position due to the potential negative connotations that a jury might draw from the fact that she is suing her deceased husband. This could unfairly influence the jury’s initial perception regarding the plaintiff’s character.

[41] The plaintiff also argues that the complexity of the liability issue in this case further supports striking the jury. Both the plaintiff and the defendant have competing forensic engineers testifying about complicated technical aspects of the accident, and the jury may have trouble understanding the evidence.

[42] The principles relating to a motion to strike a jury are summarized by the Ontario Court of Appeal in Kempf v. Nguyen, 2015 ONCA 114, at para. 43. The relevant principles to be applied by the judge hearing the motion are:

i. The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons;

ii. A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury;

iii. The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science;

iv. It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury;

v. In some cases, it is preferable to take a “wait and see” approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary; and

vi. While in many cases the “wait and see” approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, contemplate that a judge may strike a jury notice even before a trial has begun.

[43] In Kempf, the Court of Appeal concluded that the trial judge decided to strike the jury (at para. 54) “primarily on the basis of her apprehension that the jury would not be able to understand the limited use they could make of the waiver”. The Court of Appeal noted, at para. 59:

To determine liability the jury would have to sift through the often conflicting evidence, make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day.

[44] The Court of Appeal concluded that this was a case in which the “wait and see” approach would have been more appropriate. The Court stated, at para. 64:

In my view, it would have been preferable for the trial judge to have reserved her decision on the motion until after the evidence had been completed, as Nguyen’s counsel urged her to do, or, perhaps, until a discrete problem arose. As the cases emphasize, the “wait and see” approach is generally preferred. I say so for two reasons. From a practical perspective, often the anticipated complexities of a case or other concerns giving rise to the motion to dismiss a jury do not materialize. From a principled perspective, the right to a jury trial is a fundamental, substantive right that should not be interfered with except for very cogent reasons: Cowles, at para. 70.

[45] The “wait and see” approach is based on the premise that it is usually “preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted”, see: Cowles v. Balac, 2006 CanLII 34916 (ON CA), at para. 70. While the “wait and see” approach is not a rule of law, the Court of Appeal has consistently noted that it is the “preferable” and “most prudent” approach, see: Kempf at para. 65 and Cowles at paras. 70 – 72. As the trial unfolds, it may be that not all of the expert witnesses will be called, or, despite the complexity of the background science, the experts are able to explain the basis of their different opinions in language that is accessible to the average juror.

[46] Given the Court of Appeal’s decision in Kempf, Dow J. observed in Ma v. RBC Life Insurance Company, 2016 ONSC 6417, at para. 13:

It will be the rarest of situations and only in the clearest of cases where a party can successfully argue a jury notice should be struck in advance of the trial.

[47] In this case, I am not persuaded that the jury will begin the trial with an unfavourable or biased view of the plaintiff because she is suing her deceased husband. While information about the deceased husband’s insurance policy is not admissible in evidence (Rule 30.02(3)) the fact that automobile insurance is mandatory in Ontario is well known to most people, and it is likely that the jurors will understand that any damages awarded to the plaintiff will come from her deceased husband’s automobile insurer.

[48] The concern about the possible complexity of engineering evidence relating to liability is not different than many motor vehicle cases that are tried before a jury. In my view, this case does not justify departing from the “wait and see” approach preferred by the Court of Appeal. At this point it remains speculative whether the expert evidence, and the manner in which it is presented at trial, will be too complex or confusing for the jury to comprehend.

Conclusion

[49] The plaintiff’s motion to bifurcate the hearing is dismissed.

[50] The defendant’s motion that the plaintiff attend an independent medical examination before Dr. Albert Chung, physiatrist, in September 2019 is granted.

[51] The plaintiff’s motion to strike the jury notice is dismissed, without prejudice to the plaintiff renewing the motion to strike the jury before the trial judge.

Costs

[52] While the defendant was successful on these motions, I agree with the plaintiff that these motions were necessary because the defendant withdrew its previous consent to bifurcation of the trial. While the defendant may have the right to change its position on this issue, there are costs consequences to such a change if it delays the proceedings or results in costs thrown away. That is exactly what happened here. Had the defendant kept its agreement, none of these motions would have been necessary. The October 25, 2018 Trial Scheduling Court and the February 28, 2019 appearance before McKelvey J. were both wasted time because the defendant changed its mind.

[53] For these reasons, it is my view that this is a proper case to award costs against the successful party (Rule 57.01(2)).

[54] The plaintiff has sought $6,000 for all the costs thrown away and the motions heard by me. The defendant argues that all of these costs should not exceed $3,000.

[55] Based on the concerns stated above and the principles set out in Rule 57.01, costs are fixed at $5,000, payable by the defendant forthwith.

Justice R.E. Charney

Released: September 5, 2019