SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Yvonne Joseph, Plaintiff
AND:
Rodrick Budgell, Defendant
BEFORE: Master P. Tamara Sugunasiri
COUNSEL: Franklin, R., Counsel for the Plaintiff (robfranklin@franklinlawfirm.ca)
Straitman, B., Counsel for the Defendant (bstraitman@amrlaw.ca)
PRE-TRIAL: May 28, 2020
Endorsement on pre-trial
1This is an MVA case commenced under the simplified procedure rules. The Defendant delivered a jury notice prior to January 1, 2020 when a new Rule 76 came into force. The parties attended a pre-trial on May 28, 2020. It did not settle, and no trial date was set due to the Covid-19 pandemic restrictions. The parties raised the question, however, of how the trial would proceed under the new regime which has a carve out for parties who served a jury notice prior to January 1, 2020. The parties felt that there is a gap in the new Rule 76 that may allow a jury trial to proceed within the new simplified procedure restrictions. The Plaintiff suggested that the issue could perhaps be addressed on a future motion.
2There is no need for such a motion. I can give direction as a pre-trial order. I understand why the parties believe there to be a gap. There is nothing in the new Rule 76 that expressly addresses what is to be done with simplified procedure actions in which a party delivered its jury notice prior to January 1, 2020. However, I do not agree that this absence creates a gap. Both the spirit of the Rule and section 108 of the Courts of Justice Act leads to the logical and inevitable conclusion that an action with a jury cannot proceed under the new simplified rules. As such, it must proceed by way of ordinary procedure, and I so order. I briefly explain.
3The relevant CJA provision and rules are as follows:
Courts of Justice Act
Jury trials
108 (1) In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided. R.S.O. 1990, c. C.43, s. 108 (1); 1996, c. 25, s. 9 (17).
Trials without jury
(2) The issues of fact and the assessment of damages in an action shall be tried without a jury in the following circumstances:
- The action is proceeding under Rule 76 of the Rules of Civil Procedure. 2019, c. 7, Sched. 15, s. 2.
Same
(2.1) Paragraph 2 of subsection (2) does not apply to an action in respect of which a jury notice has been delivered in accordance with the Rules of Civil Procedure before January 1, 2020. 2019, c. 7, Sched. 15, s. 2
Rules of Civil Procedure
JURY TRIAL NOT AVAILABLE
76.02.1 (1) An action that is proceeding under this Rule shall not be tried with a jury and, subject to subrule (2), no party to the action may deliver a jury notice under rule 47.01.
(2) A party to an action that is proceeding under this Rule may deliver a jury notice under rule 47.01 if the action involves a claim for relief arising from one of the following:
Slander.
Libel.
Malicious arrest.
Malicious prosecution.
False imprisonment.
(3) If a jury notice is delivered in accordance with subrule (2), the action may no longer proceed under this Rule and the party delivering the jury notice shall deliver a notice (Form 76A) stating that the action and any related proceedings are continued as an ordinary action.
76.14 Clauses 76.01 (1) (d), 76.02 (5) (e) and 76.02 (7) (c) and rule 76.02.1 do not apply to an action in respect of which a jury notice has been delivered before January 1, 2020. O. Reg. 344/19, s. 12.
4In a nutshell, the new Rule 76 that came into force on January 1, 2020 restricts simplified procedure cases to a summary mode of trial, removes the jury option, restricts the length of trial to five days, and requires parties to prepare a trial management plan which must be approved by the pre-trial judge or master. Parties who filed a jury notice prior to January 1, 2020 reserve their right to have a jury trial. The parties’ confusion appears to be over whether these trials would continue as simplified procedure actions or whether they convert to ordinary procedure. The confusion arises because a) there is no provision that directly addresses the procedure to follow for this category of cases and b) the exemption provisions, if read technically, can lead to the conclusion that there may be a hybrid category of cases – ones which have a jury but proceed under the new simplified procedure rules. As discussed below, a logical and contextual interpretation leads to only one conclusion - that actions with pre-January 1, 2020 jury elections are converted to ordinary procedure actions.
The exemption regime for pre-January 1, 2020 jury notice cases
Simplified procedure actions with jury notices served prior to January 1, 2020 are exempted from section 108(2) and (2.1) of the Courts of Justice Act
5Subsection 108(2) of the CJA prohibits a jury trial in actions governed by Rule 76. However, subsection 108(2.1) states that the prohibition does not apply to simplified procedure actions in which a party served a jury notice prior to January 1, 2020. On its face and read technically, this suggests that those cases can a) have a jury trial; and b) continue as a simplified procedure action.
Simplified procedure actions with jury notices served prior to January 1, 2020 are exempted from Rule 76.02.01 of the Rules of Civil Procedure
6Similarly, sub-rule 76.02.1(1) prohibits jury trials. Sub rule 76.02.1(2) allows certain types of simplified procedure actions to proceed before a jury. If the parties so opt, sub-rule 76.02.1(3) converts those actions to ordinary procedure. However, r. 76.14 states that this entire rule does not apply to simplified procedure actions where a party delivered a jury notice before January 1, 2020. Read together, this can again lead to the conclusion that simplified procedure actions with pre-Jan 1, 2020 jury notices can a) have a jury trial; and b) continue as a simplified procedure action.
7The further complication creating the perceived gap is that unlike in sub-rule 76.02(3), there is no express section or rule that directs parties with pre-January 1, 2020 jury notices to proceed under the ordinary procedure.
Jury trials of any sort are prohibited under the new Rule 76
8In my view, the purpose of the exemptions is to recognize the right to a jury trial for those who so opted before the reforms came into place. It does not create a class of cases that may proceed with a jury but within the new simplified procedure restrictions. I say this for three reasons.
9First, such an interpretation leads to the absurd result that there might be a jury trial limited to five days with the jury facing affidavit evidence. Nothing in the rule is intended to abrogate a party’s right to a fair trial by jury. Under the old rules, actions that fell within the r.76 monetary limit could proceed by summary trial or ordinary procedure (former Rule 76.10(6)). A jury trial was still possible. The new rule has only one mode of trial with a five-day limit. It greatly restricts the trial process, making it untenable for a fair jury trial. Second, it would run contrary to the CJA’s new and express prohibition against jury trials in simplified procedure matters. Third, the circumstances of those who opted for a jury trial prior to January 1, 2020 are analogous to those who opt for jury trials in simplified procedure actions for libel, slander, malicious arrest, malicious prosecution or false imprisonment (see rule 76.02.1(2)). If a jury notice is served in those cases, the new rule 76.02.1(2) re-routes them to the ordinary procedure track. There is no reason to treat the pre-January 1, 2020 jury notice cases any differently, and it is sound to treat them the same.
10The most harmonious interpretation of the new rule 76, the new prohibition in section 108 of the CJA, and the exemption clauses therein, is that those who opted for a jury trial prior to January 1, 2020 preserve their right to a jury but must now proceed under the ordinary procedure rules.
Disposition:
11I make the following pre-trial orders:
a. I convert this action into an ordinary procedure action; and
b. The parties should schedule a second pre-trial once they have a trial date. This does not preclude the parties from requesting a second pre-trial while the court is still under its Covid-19 restrictions if they have attempted to settle the case and require judicial assistance.
Original signed
Master Sugunasiri
Date: June 2, 2020