Court File and Parties

COURT FILE NO.: CV-17-578489 DATE: 20191118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Radika Mahadeo, Plaintiff – AND – Blue Cross Life Insurance Company of Canada, Defendant

BEFORE: EM Morgan J.

COUNSEL: Miguel Mangalindan and Andrew Monkhouse, for the Plaintiff Andrew Cottreau, for the Defendant

HEARD: November 15, 2019

motion to strike jury notice

Reasons for Decision

[1] This motion asks, in effect, when is a question not a question?

[2] The matter comes to me from Trial Scheduling Court. In a short endorsement, Firestone J. directed Plaintiff’s counsel to schedule a motion to determine whether the case is to be set down as a jury trial or a non-jury trial.

[3] Having been served with the Statement of Claim, the Defendant served its Statement of Defence on September 22, 2017. As the Plaintiff did not serve a Reply, the pleadings were closed 10 days later in accordance with Rule 25.05(a) of the Rules of Civil Procedure.

[4] The Defendant waited 4½ months and then served a Jury Notice on February 9, 2018. Rule 47.01 requires that a Jury Notice be served “at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.” The Jury Notice was therefore out of time.

[5] Later in the day on February 9, 2018, Plaintiff’s counsel wrote to Defendant’s counsel by email:

Barry, I got your jury notice, but there is nothing else in the covering letter.

Since pleadings are closed it would seem that you are out of time, are you trying to indicate that you are going to bring a motion to change this to be a jury matter?

[6] Three days later, on February 12, 2018, Defendant’s counsel responded to Plaintiff’s counsel:

I would prefer that you could agree to late service rather than requiring a motion for leave.

I look forward to hearing from you.

[7] That is the extent of the correspondence or conversation regarding the Jury Notice that is in the record before me.

[8] Counsel for the Plaintiff submits that this exchange of correspondence confirms that the Plaintiff has from the outset objected to the validity of the out-of-time Jury Notice. He takes the view that the Jury Notice is invalid since the Defendant never moved for leave to serve it after the close of pleadings and the Plaintiff never otherwise consented to it.

[9] Counsel for the Defendant, on the other hand, submits that this correspondence does not amount to an objection to the late Jury Notice. He contends that the lack of objection represents agreement or acquiescence by the Plaintiff to a jury trial. Defendant’s counsel takes the view that the February 9, 2018 email from Plaintiff’s counsel referencing the prospect of a motion to change this to a jury trial was not an objection, but was merely an inquiry by Plaintiff’s counsel in a message that ends with a question mark.

[10] With respect, Defendant’s counsel’s reading seems rather literalist in its approach to this correspondence. English language usage allows for numerous meanings to be associated with a question other than an inquiry, strictly speaking. A question in form is not necessarily a question in substance. It can be an expression of guilt (“What, will these hands ne’er be clean?” Macbeth 5.1.44), or a declaration of existential angst (“Wherefore art thou Romeo?” Romeo and Juliet, 2.2.33), or an argument for equality (“If you prick us do we not bleed?” Merchant of Venice, 3.1.64).

[11] I read Plaintiff’s counsel’s email of February 9, 2018 as stating an objection to the late Jury Notice, and not merely raising an inquiry. When Plaintiff’s counsel asked whether Defendant’s counsel will be bringing a motion, he deployed what grammarians would call an imperative question: S. Greenbaum, Oxford English Grammar (Oxford U. Press, 1996), p. 53. It is a slightly more polite form of vocalized demand that I would observe is commonplace in Canadian idiom. An example might be telling someone in a drafty room, “Can you close the window?” The form is interrogatory; the substance is a demand.

[12] Having thus registered the Plaintiff’s objection to the late Jury Notice, the parties then proceeded through discoveries without further mention of it.

[13] Counsel for the Plaintiff set the action down for trial on December 8, 2018 by serving and filing a Trial Record. Included as one of the documents in the Trial Record was the Jury Notice of February 9, 2018.

[14] Counsel for the Plaintiff explains that including the Jury Notice in the Trial Record was not intended as a belated consent to trial by jury, but rather was done out of an abundance of caution in view of the wording of Rule 48.03(1)(b) which requires the Trial Record to contain “a copy of any jury notice”. Plaintiff’s counsel takes this to mean any Jury Notice, even an invalid one.

[15] Unfortunately, there was no covering letter accompanying the Trial Record explaining this interpretation to the Defendant or to the court. There was also nothing in the Trial Record itself that would signal to a reader that the inclusion of a Jury Notice did not mean that this matter is to be a jury trial. Defendant’s counsel therefore submits that the inclusion of the Jury Notice is an admission that this is to be a jury trial.

[16] I accept that Plaintiff’s counsel was being cautious, but he was being cautious to a fault. I can think of no policy or trial management purpose that is served by reading Rule 48.03(1)(b) in the way that Plaintiff’s counsel does. The point of the Trial Record is to signal to the trial judge what the trial will be about and how it will proceed. The objective is not to signal to the trial judge matters of trial process that are invalid and that are not germane to the trial at hand.

[17] Having said that, I can likewise think of no reason to interpret the inclusion of the Jury Notice in the Trial Record as a form of admission by the Plaintiff. It was not intended that way, and reflects more of an error or misreading of the Rules than an admission of anything. It is also not an error on which the Defendant has relied to its detriment. It was inserted into the Trial Record, and nothing further has happened since the attendance in Trial Scheduling Court. I therefore would not hold it against the Plaintiff.

[18] The motion before me has been brought by the Plaintiff for an Order to strike, although the way Firestone J.’s direction was phrased it could equally have been brought by the Defendant for an Order granting leave to extend the time. Both counsel agree that I can treat the motion as either of those two alternatives. Trial Scheduling Court needs a determination, one way or another, as to whether this is to be set down as a jury trial or a non-jury trial. Accordingly, there is no point answering the Plaintiff’s motion to strike without also answering what would have been the Defendant’s motion for leave at the same time.

[19] It is an error of law to serve and file a Jury Notice after the close of pleadings: Leadbetter v Nor, 2016 ONSC 5289 (SCJ). On a motion for leave to file a late Jury Notice, the Court may consider whether there has been undue delay on either side: Jackson v Hautala (1983), 1983 CanLII 1974 (ON SC), 42 OR (2d) 153 (Ont SC). The Divisional Court in Nikore v Proper, 2010 ONSC 2307 identified two factors to be considered when deciding whether to permit the service of a jury notice after the closing pleadings: a) the circumstances of the delay, and (b) whether the opposing side has been prejudiced.

[20] I see no cogent reason for the Defendant having waited until after Trial Scheduling Court to seek leave to serve a late Jury Notice. The parties have gone all the way through discoveries and are about to set the matter down for trial without a valid Jury Notice ever having been served. Master MacLeod pointed out in Rodic v Centre for Addiction and Mental Health, [2001] OJ No 2000, para. 8, that, “A jury trial is more lengthy and expensive and may require a different approach to the presentation of evidence and advocacy than a trial by judge alone. At some point in the proceeding, there will be strategic decisions taken that cannot easily be undone.” A different kind of trial may require a different approach to discoveries, which would send the parties back to what they thought was a completed stage of the action.

[21] For this reason, the Divisional Court has expressed the view that, “One obvious basis upon which prejudice may be found is where late delivery of a jury notice may result in delaying a trial. Obviously, the closer one is to the trial date, the greater will be the risk of trial delay”: Nikore, para 22. Trial Scheduling Court has in in its own way reflected another aspect of this concern in requiring a firm answer as to which list this matter belongs. The wait for a jury trial may be substantially greater than the wait for a non-jury trial.

[22] In February 2018, the Defendant was immediately advised, politely, by Plaintiff’s counsel that it should bring a motion for leave to file a late Jury Notice. It did not rise to the challenge. To convert this trial from the judge-alone trial to which it has been geared through discoveries and up until now to a jury trial is to ignore the delay to the detriment of the Plaintiff. The Defendant’s initial error has not been corrected by taking the matter all the way to Trial Scheduling Court without any further steps to regularize the invalid Jury Notice.

[23] Counsel for the Plaintiff also challenges the Jury Notice on the basis that the primary claim in the Statement of Claim is for declaratory relief. He submits that this form of relief would make the Jury Notice void under s. 108 of the Courts of Justice Act even if it had been served on time.

[24] In Thibault v The Empire Life Insurance Co., 2012 ONSC 1723, para 56, Thorburn J (as she then was) held that where the primary relief sought is a declaration, the Jury Notice must be struck even if there are damages also claimed. She was of the view that if damages flow from the declaration they are ancillary to the declaratory relief itself.

[25] By contrast, in Ramm v Sun Life Assurance Co., 1999 CarswellOnt 777, para 31, the Court held that a declaration such as that sought by the Plaintiff here – i.e. a declaration of entitlement to accident benefits – is “not really declaratory relief within the concept of equity (and therefore not subject of a jury notice challenge because of s. 108(2)10 of the COJA). Rather it is a question of law which must be determined on the facts as found by the trier of fact.”

[26] I agree with the Court in Ramm that the point of disqualifying cases seeking declaratory relief from jury trials is to avoid having juries make determinations of equity. As the Ramm judgment points out, a declaration of entitlement under an insurance policy is more akin to an Order for payment of monies under a contract than it is to a request for equitable relief.

[27] Finally, counsel for the Plaintiff argues that in any case the trial will be too complex for a jury to handle. In Cowles v Balac, 2006 CanLII 34916 (ON CA), [2006] OJ No 4177, para 48, the Court observed that, “Clearly, the complexity of a case is a proper consideration in determining whether a jury notice should be struck… 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.”

[28] Under present circumstances, I do not have enough of a record to make a determination about the complexity of the trial. I am unsure of how many witnesses there will be at trial, or how many experts each side intends to call, or even how long the trial is expected to be. It may or may not be too complex for a jury. In the absence of a record that adequately informs me of the factors going to that determination, I cannot make a decision on that basis.

[29] Given the delay in bringing a motion for leave to file a late Jury Notice, and the fact that the parties are now ready to have the matter set down, I am inclined to say that the upcoming trial will be a non-jury trial. The Plaintiff has gone all the way through discoveries on the assumption that this is a judge-alone trial, and there is no reason to upset that expectation at this stage.

[30] The parties are to return to Trial Scheduling Court and have the matter set down as a non-jury trial.

[31] As for costs, the Plaintiff is correct in its view of the invalidity of the Jury Notice and has succeeded in having the matter placed on the non-jury list. However, by including the invalid Jury Notice in the Trial record the Plaintiff partially contributed to the miscommunication which prompted Justice Firestone to require that this motion be brought. As already explained, if out of an abundance of caution the Jury Notice was to be included in the Trial Record, some explanation of that would have been helpful to the Defendant and to the Trial Scheduling Court. Indeed, this may have had the effect of forestalling the entire motion as it would have been made clear at the Trial Scheduling Court attendance that the Jury Notice was never accepted by the Plaintiff.

[32] Accordingly, I will exercise my discretion under s. 131 of the Courts of Justice Act to not order costs of this motion for or against either party.

Morgan J.

Date: November 18, 2019