Court File and Parties

COURT FILE NO.: CV-16-0339-00 DATE: March 15, 2021 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Louise Lightfoot, Owen Lightfoot and Hazel Lightfoot, Plaintiffs AND: Gary Hodgins, Judy Hodgins and Intact Insurance Company, Defendants

BEFORE: Muszynski J.

COUNSEL: Kris Bonn, for the Plaintiff, Owen Lightfoot Samantha Iturregui, for the Defendants

HEARD: February 5, 2021

Decision on motion to amend / motion to strike jury notice

Endorsement

1This action arises out of a motor vehicle accident that took place on April 18, 2015 involving the Plaintiff, Owen Lightfoot (the “Plaintiff”), and a vehicle owned by Gary Hodgins and driven by Judy Hodgins (the “Defendants”). The Plaintiff seeks damages from the Defendants arising from his alleged personal injuries sustained in the accident.

2The motion concerns the trial of this action which is scheduled to proceed on May 10, 2021 for three weeks with a judge and jury in Belleville.

3Specifically, the Plaintiff seeks leave to bring this motion, leave to amend the Statement of Claim to continue the action within the jurisdiction of Rule 76 (simplified procedure), and an order striking the Defendants’ jury notice.

4Unlike many of the recent decisions involving motions to strike jury notices due to delay associated with the COVID-19 pandemic, this decision primarily addresses the relationship between the post-January 1, 2020 amended Rule 76 and pre-existing jury notices.

ISSUES

5Should the Plaintiff be granted leave to bring the motion pursuant to Rule 48.04(1)?

6Should the Plaintiff be granted leave to amend the Statement of Claim to continue the action under Rule 76?

7Should the Defendants’ jury notice be struck?

RESULT

8For the reasons that follow:

1. The Plaintiff is granted leave to bring the motion pursuant to Rule 48.04(1);
2. The Plaintiff is granted leave to amend his Statement of Claim to continue the action under Rule 76; and
3. The Defendants’ jury notice is struck.

POSITION OF THE PARTIES

9The parties agree that the Plaintiff should be granted leave to bring the motion pursuant to Rule 48.04(1).

10On the issue of amending into Rule 76, the Plaintiff submits that the extent of his damages was unknown when the claim was initially commenced in ordinary procedure. Since that time, the Plaintiff’s medical condition has stabilized, and he has received expert opinions that have been instructive in understanding his claim for damages. Further, the monetary jurisdiction of Rule 76 was increased from $100,000 to $200,000 on January 1, 2020. The Plaintiff is willing to reduce his claim from $750,000 to $200,000 and proceed by way of the summary trial provisions contained in the amended Rule 76. The Plaintiff understands that there could be negative cost consequences associated with amending at this late stage and proposes the amendments be allowed without prejudice to the Defendants’ ability to seek costs associated with the amendments.

11Not surprisingly, the Defendants consent to the Plaintiff’s proposed amendments to decrease the prayer for relief to $200,000. The Defendants concede that this action is well suited for the summary trial process set out in the amended Rule 76. The Defendants are agreeable to having the issue of costs associated with the amendments reserved to the trial judge. Essentially, the Defendants are consenting to the amendments with one caveat – the amendments cannot result in the loss of the Defendants’ right to a jury trial.

12With respect to the Defendants’ jury notice, the Plaintiff submits it should be struck because under the amended Rule 76, particularly the summary trial process that it mandates, a jury trial is not feasible. The Plaintiff states that the issues in this action call for a proportional approach that can be achieved under the summary trial process with a judge alone. Further, the Plaintiff relies on an ever-increasing arsenal of caselaw wherein jury notices have been struck because of delays attributable to the COVID-19 pandemic.

13The Defendants’ position is that the Statement of Claim should be amended to proceed under the amended Rule 76, while maintaining their jury notice. If the court is reluctant to order that a summary trial take place with a jury, the Defendants prefer to preserve their jury notice and have the action continue in ordinary procedure. The Defendants rely on the statutory right to proceed to trial by jury. With respect to the effects of COVID-19, the Defendants submit that the court should adopt a “wait-and-see” approach and reconsider the issue as to whether to strike the jury notice or adjourn the trial closer to the trial date.

FACTS AND ANALYSIS

14The following is a chronology of the notable events in this litigation:

1. April 18, 2015: the motor vehicle accident occurs;
2. September 14, 2016: the Statement of Claim is issued wherein the Plaintiff seeks damages in the amount of $750,000 from the Defendants;
3. April 25, 2017: the Defendants serve the Statement of Defence and Jury Notice;
4. May 3, 2018: Examinations for Discovery are held;
5. October 2, 2018: the Plaintiff receives the medical legal report of Dr. Kam;
6. March 22, 2019: the claims of Louise and Hazel Lightfoot are dismissed;
7. March 27, 2019: the Plaintiff serves the Trial Record;
8. November 15, 2019: the Defendants serve the medical legal report of Dr. Shanks on the Plaintiff;
9. January 1, 2020: amendments to Rule 76 (simplified procedure) of the Rules of Civil Procedure come into effect;
10. January 22, 2020: a Pre-trial is held and the trial is scheduled for three weeks commencing May 10, 2021;
11. June 22, 2020: counsel for the Plaintiff writes to counsel for the Defendant proposing that a case conference be held to discuss whether the trial could proceed without a jury;
12. July 2, 2020: counsel for the Defendants writes to counsel for the Plaintiff to confirm that the Defendants wish to proceed to trial by jury; and
13. November 3, 2020: a case conference is held to schedule the motion and arrange a timetable for filing material.

ISSUE 1: Should the Plaintiff be granted leave to bring the motion pursuant to Rule 48.04?

15Since this action has been set down for trial, leave is required before any motion can be initiated by the Plaintiff. [See Rule 48.04(1) of the Rules of Civil Procedure].

16The Defendants agree that leave should be granted to permit the Plaintiff to bring the motion in this case.

17Generally, leave will be granted to permit a party to bring a motion after it has been set down for trial when it can be shown that there is a substantial or unexpected change in the circumstances of the case. [See BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737 at para 12].

18I find that the amendment to Rule 76 that occurred on January 1, 2020 to double the monetary limit of the simplified procedure’s jurisdiction represents a substantial change in the circumstances of this case. Further, I find that the COVID-19 pandemic and its consequences on the justice system represents a change that was most certainly unexpected.

19The Plaintiff is granted leave to bring this motion.

ISSUE 2: Should the Plaintiff be granted leave to amend the Statement of Claim to continue the action under Rule 76?

20There are two rules that require consideration as part of this issue: Rule 26.01; and Rule 76.02(7).

Rule 26.01

21The Plaintiff seeks leave to amend the Statement of Claim pursuant to Rule 26.01 to limit his claim to the new $200,000 maximum set out in Rule 76.

22Rule 26.01 states that: “On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

23The consent of all parties is not required before leave to amend can be ordered.

24The Plaintiff’s evidence, which I accept, is that two factors triggered his desire to amend the claim to bring it within the monetary jurisdiction of Rule 76. Firstly, he obtained more information regarding his medical status which enabled him to better assess his claim for damages. Secondly, amendments to the Rules doubled the amount of damages that could be pursued under the simplified procedure.

25It bears repeating that the Defendants are agreeable to the proposed amendments on their face but are opposed to the potential consequence that the amendments might have on their jury notice.

26The Defendants did not focus on Rule 26.01 and did not put forth evidence of prejudice that could not be compensated for by costs or an adjournment should the Plaintiff be granted leave to amend the Statement of Claim. However, it can be gleaned from the Defendants’ position on the motion more generally that they would characterize the loss of a jury notice as an example of non-compensable prejudice.

Rule 76 Amendments

27The main issue before me is the impact that amending an action into Rule 76 has on a jury notice that was delivered prior to January 1, 2020. In order to answer that question, a detailed review of Rule 76 is required.

28On January 1, 2020, there were significant amendments to Rule 76 and the simplified procedure beyond the increase in the monetary jurisdiction mentioned previously. One of the notable changes relates to the availability of jury trials. Prior to January 1, 2020, matters commenced under Rule 76 could proceed with a jury.

29The amended Rule 76 eliminates the ability to proceed under the simplified procedure with a jury:

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:

1. Slander.
2. Libel.
3. Malicious prosecution.
4. 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.

30While Rule 76.02.1(2) sets out four types of claims (slander, libel, malicious prosecution and false imprisonment) where jury notices can still be delivered under Rule 76, the consequence of serving a jury notice even in those instances is that the action must continue in ordinary procedure.

31There is a transition provision relating to jury trials that is set out in Rule 76.14 that addresses the situation where a jury notice was delivered prior to January 1, 2020 which states:

TRANSITION – JURY TRIALS 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.

32The relevant portion of the transition provision in this case is the reference to Rule 76.02.1 which provides that actions proceeding under Rule 76 shall not be tried with a jury. To be clear, the transition provision creates an exception to this Rule for actions wherein a jury notice was served prior to January 1, 2020.

33There were other changes to Rule 76 that took effect on January 1, 2020 that are relevant to the motion. This includes a 5 day maximum for all trials proceeding under Rule 76 [See Rule 76.10(5)(d)], and a requirement that trials proceeding under Rule 76 proceed by way of a summary trial. The summary trial process contemplates adducing evidence in-chief by way of affidavit, with cross-examination at the trial. [See Rule 76.12].

34It is notable that the Courts of Justice Act was amended at the same time as Rule 76 to provide that an action proceeding under Rule 76 shall be tried without a jury. The amendments to the Courts of Justice Act include a similar exception to that contained in the Rules for actions where jury notices were delivered prior to January 1, 2020. [See Courts of Justice Act R.S.O. 1990, c. C.43 s 108(1)(2)2.]

Can Rule 76 actions proceed to trial with a jury within the simplified procedure if a jury notice was delivered prior to January 1, 2020?

35As noted above, Rule 76.14 contains a transition provision for Rule 76 actions where a jury notice was delivered prior to January 1, 2020. However, the practical impact of this exception is less than clear.

36Is it intended that these actions proceed to trial by jury under the amended Rule 76? Is it intended that these actions proceed to trial by jury in the ordinary procedure? Or, should these actions proceed to trial with a jury in the pre-amendment simplified procedure?

37The Plaintiff’s position is that it would be absurd to allow a jury trial to proceed under the amended Rule 76 due to the hard cap of 5 days of trial, the summary trial process that requires evidence by way of affidavit, and the limit on costs and disbursements.

38In contrast, the Defendants submit that the transition provision in Rule 76.14 means that actions with pre-amendment jury notices are required to proceed under the new Rule 76, including the mandatory summary trial process. The Defendants state that a jury can accept evidence by way of affidavit with limited cross-examinations and that the trial management process can assist the parties in limiting the jury trial to a maximum of 5 days. Alternatively, the Defendants submit that the action should remain in ordinary procedure so that the jury notice can be preserved.

39There is one reported decision that addresses this issue. In Joseph v. Budgell, 2020 ONSC 6526, in a Pre-trial Endorsement, Master Sugunasiri considered whether actions with pre-January 1, 2020 jury notices could continue under Rule 76. Master Sugunasiri concludes that “actions with pre-January 1, 2020 jury elections are converted to ordinary procedure.” She goes onto write:

The 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.

40I agree with the Plaintiff that jury trials have no place in the simplified procedure set out in the amended Rule 76. Even if a jury trial could successfully be limited to 5 days in length, it is inconceivable how the mandatory summary trial process would work with a jury. Would the jurors sit together and read affidavit evidence that might include expert evidence? Would the reading time be included in the 5 days? It simply does not make sense. I find that jury trials are incompatible with the simplified procedure set out in the amended Rule 76.

41There are no references whatsoever in the amended Rule 76 to permitting actions with jury notices delivered pre-January 1, 2020 to proceed under an older version of simplified procedure. I do not accept that this approach can be justified with even a generous reading of the Rules.

42There are references to certain types of claims commenced under Rule 76 being allowed to proceed to trial with a jury under the ordinary procedure. These include the enumerated claims of slander, libel, malicious prosecution and false imprisonment set out in 76.02.1(2). A transfer of actions from Rule 76 to ordinary procedure is already contemplated to allow jury notices to be preserved in those instances.

43After my own review of the Rule 76 regime, I agree with the conclusion reached by Master Sugunasiri in Joseph v. Budgell that the transition provision contained in Rule 76.14 has the effect of allowing actions with pre-January 1, 2020 jury notices to proceed to trial by jury, but in the ordinary procedure, not in the ambit of Rule 76. This is consistent with the goal of the transition provision, to preserve pre-January 1, 2020 jury notices, but in a manner that is consistent and rational.

Procedure for Amending into Rule 76

44Rule 76.02(7) now provides that an action that is not commenced under Rule 76 can be continued under Rule 76 if:

(a) the consent of all the parties is filed; (b) no consent is filed but, (i) the plaintiff’s pleading is amended under Rule 26 to comply with subrule (1), and (ii) all other claims, counterclaims, crossclaims and third party claims comply with this Rule; or (c) a jury notice delivered in accordance with subrule 76.02.1(2) is struck out.

45In this case, there is no consent filed, the Plaintiff’s proposed amendments under Rule 26.01 bring the pleading in compliance with Rule 76.02(1) by limiting the damages claimed to $200,000, and there are no other claims, counterclaims, crossclaims or third party claims.

46The applicable provision is therefore Rule 76.02(7)(b).

47The Plaintiff relies on the recent decision of Mew J. in Crawford v. Standard Building Contractors Limited, 2020 ONSC 5767 [Crawford]. The action in Crawford was commenced prior to the January 1, 2020 rule change. Following the rule amendment, the plaintiffs brought an opposed motion to amend their claim to limit the total damages claimed to $200,000 and seeking a direction that the action be governed by the simplified procedure set out in Rule 76.

48Mew J. held that Rule 76.02(7) expressly provides for the amendment into Rule 76 despite the absence of consent by the defendants. Following the amendment of the plaintiffs’ pleadings to comply with Rule 76, at paragraph 16 of Crawford it is noted:

I conclude that the action, including the counterclaim, is now governed by the simplified procedure. The application of this procedure is mandatory: Rule 76.02(1). Not only can the defendant not opt out, there exists no other basis for removing the case from the simplified procedure.

49While the Crawford decision provides guidance on the mandatory nature of the Rule 76 procedure, it is acknowledged that there was no jury notice at play in that case.

Leave to Amend is Granted

50The Plaintiff does not require consent of the Defendants to amend the Statement of Claim to comply with Rule 76; however, leave of the court is required pursuant to Rule 26.01. The amendment rules are mandatory unless the opposing party can provide evidence of non-compensable prejudice.

51In granting the Plaintiff leave to amend as proposed, the action will continue under Rule 76. I have found that an action cannot proceed under Rule 76 with a jury notice. A natural consequence of the Plaintiff’s success on the amendment motion is that the Defendants’ jury notice must be struck.

52For the reasons that follow in the next section, I do not find that the Defendants are prejudiced by the proposed amendment into Rule 76 by the corresponding loss of their jury notice to such a degree that the leave should not be granted. Indeed, the benefits to the Defendants include: reduced exposure to damages; the ability to proceed in the desired process of simplified procedure; and the preservation of their right to claim costs associated with the amendment from the Plaintiff at the time of trial.

53The Plaintiff is granted leave to amend the Statement of Claim as set out in the draft Fresh as Amended Statement of Claim filed in the Motion Record.

ISSUE 3: Should the Defendants’ Jury Notice be Struck?

Legislative Framework

54The right to a jury in a civil action is governed by s. 108 of the Courts of Justice Act and Rule 47.01 of the Rules of Civil Procedure.

55Section 108 of the Courts of Justice Act states:

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:

1. The action involves a claim for any of the following kinds of relief: i. Injunction or mandatory order. ii. Partition or sale of real property. iii. Relief in proceedings referred to in the Schedule to section 21.8 . iv. Dissolution of a partnership or taking of partnership or other accounts. v. Foreclosure or redemption of a mortgage. vi. Sale and distribution of the proceeds of property subject to any lien or charge. vii. Execution of a trust. viii. Rectification, setting aside or cancellation of a deed or other written instrument. ix. Specific performance of a contract. x. Declaratory relief. xi. Other equitable relief. xii. Relief against a municipality.
2. The action is proceeding under Rule 76 of the Rules of Civil Procedure. 2019, c. 7 , Sched. 15, s. 2 . (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 . (3) On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury. R.S.O. 1990, c. C.43, s. 108 (3) .

56Rule 47 of the Rules of Civil Procedure states:

47.01 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 another statute requires that the action be tried without a jury.

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that, (a) a statute requires a trial without a jury; or (b) the jury notice was not delivered in accordance with rule 47.01. (2) 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. (3) where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.

57As evident from the language set out in s. 108 of the Courts of Justice Act and Rule 47, the right to a civil jury trial is not absolute.

Motions to Strike Jury Notices

58In the recent case of Louis v. Poitras, 2021 ONCA 49 [Louis], the Court of Appeal confirmed: “While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.” [See para. 17].

59This sentiment is echoed in the earlier decision of Cowles v. Balac, (2006), 83 O.R. (3d) 660:

While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible. [See paras. 38-39].

60The onus is on the moving party to satisfy the motion judge that a jury notice should be struck. In so doing, they should point to legal or factual issues or the conduct of the trial which merit the discharge of the jury. [See Graham v. Rourke (1990), O.J. No. 2314].

61The Plaintiff points to the amendment into Rule 76 and the impact of the COVID-19 pandemic on jury trials as reasons why the Defendants’ jury notice should be struck in this case.

Jury Trials and Rule 76 / Proportionality

62The parties agree that this action is well suited to proceed by the summary trial process set out in the amended Rule 76 which limits the trial to 5 days in length.

63Since I have found that a jury trial cannot take place within Rule 76, the survival of the jury notice in this case would require the action to continue in ordinary procedure. The parties estimate of time for a jury trial in ordinary procedure for this case is 3 weeks.

64In the recent case of Girao v. Cunningham, 2020 ONCA 260, the Court of Appeal recognized the fundamental right to a civil jury but also noted that the right “is not absolute and must sometimes yield to practicality.” [See para. 171].

65Similarly, in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186 [MacLeod], Myers J. noted: “The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term.” [See para. 32].

66Although the jury notice in MacLeod was not ultimately struck, Myers J. provided a helpful analysis of the relationship between the substantive right to a civil jury trial and the emerging principle of proportionality:

28In my view, the court’s ability to make a definitive assessment of complexity is not the sole issue that drives the analysis of the interests of justice. It may not even be the most important issue. One can never be sure what will happen in future. The law acts on probabilities and logical inferences where the evidence allows judges to do so. In this case, the court is engaged in a search for the process that most justly resolves the two pieces of civil litigation. I emphasize the fundamental words of Associate Chief Justice O’Connor above:

After all, the object of a civil trial is to provide justice between the parties, nothing more.

29The Associate Chief Justice wrote those words in 2006. At that time, the Court of Appeal recognized that the mode of trial is a facet of the overarching goal of doing justice. Moreover, although the case law discusses the “right to a jury” the right is not constitutional or quasi-constitutional. It is a prima facie procedural entitlement that O’Connor ACJO noted was not the unilateral preserve of any one party. Like all procedural rights, it yields to the overriding interests of justice it is intended to serve.

30Since 2014 and the seminal decision of the Supreme Court of Canada in Hryniak, we also know that to be just a civil resolution of a dispute must not either take too long or be too expensive. As expressed by Karakatsanis J.:

23…Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.

24However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. …The cost and delay associated with the traditional process means that…the trial process denies ordinary people the opportunity to have adjudication...

25Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.

28This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

29There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result. [Emphasis added. Notes omitted].

67Rule 1.04 (1) codifies the goals of efficiency and proportionality required in civil litigation:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

The Defendants’ Jury Notice is Struck

68I find the most compelling factor in this case to be the admission by both parties that this action is well suited for the simplified procedure, including the summary trial process, in the amended Rule 76. The evidence before the court on this motion confirms that the parties have considered the quantum of the claim for damages as well as the efficiencies that could be gained by proceeding in this fashion over ordinary procedure.

69Further, beyond the interest of these parties, I consider the impact of the COVID-19 pandemic on the administration of justice a whole. The COVID-19 pandemic has put an unprecedented strain on the entire justice system. The effects of the pandemic and the fact that the civil justice system is “being overwhelmed” was specifically referenced by the Court of Appeal in Louis. [See Louis at para 1].

70In light of the admissions by the parties in this case, and the current challenges with the justice system more broadly as a result of the pandemic, I find that it would be contrary to the interests of justice and the principles of proportionality to require that this action continue to a 3 week jury trial in ordinary procedure rather than a 5 day, non-jury summary trial under Rule 76.

71I therefore grant the Plaintiff’s motion to strike the Defendants’ jury notice so that the action can proceed to trial under the amended Rule 76.

72Given my findings above, I find it unnecessary to address the issue of a potential delay in the court’s ability to host a jury trial due to the pandemic. While the latest notice from the Chief Justice has made it clear that no jury trials can be held in Ontario before May 3, 2021, it is not entirely clear what will happen after that time. The trial in this action is currently scheduled to commence on May 10, 2021. I do note that the Belleville courthouse is able to accommodate jury trials in a manner that is consistent with public health protocols and the County of Hastings has been relatively fortunate in having low numbers of reported COVID-19 cases within the jurisdiction. The potential delay in proceeding to trial with a jury due to the COVID-19 pandemic is not the driving force behind my decision to strike the Defendants’ jury notice.

73In making the decision that I have in this case, I should not be taken as saying that efficiency and reduced trial time alone should justify striking a jury notice. It is no secret that jury trials are more time consuming and more expensive than non-jury trials. On the particular facts of this case, and in the current times, I find that it is in the interests of justice to strike the Defendants’ jury notice so that the action can proceed to trial under the simplified procedure set out in the amended Rule 76.

CONCLUSION

74An order shall issue as follows:

1. The Plaintiff is granted leave to bring the motion pursuant to Rule 48.04(1);
2. The Plaintiff is granted leave to amend his Statement of Claim to continue the action under Rule 76 as set out in the draft Fresh as Amended Statement of Claim contained in the Plaintiff’s Motion Record;
3. The issue of costs associated with the amendment into Rule 76 shall be reserved to the trial judge; and
4. The Defendants’ jury notice is struck.

75This action shall remain on the May 10, 2021 trial list for a 5 day non-jury trial.

COSTS

76Costs of the motion are reserved. If the parties cannot come to an agreement on costs of the motion on or before April 9, 2021, counsel shall file cost outlines in accordance with the following schedule: the Plaintiff shall serve and file its cost outline on or before April 23, 2021; the Defendant shall serve and file its cost outline on or before May 7, 2021; after which time I will determine the issue of costs based on the material filed.

77Counsel shall file their respective cost outlines by sending them by email to the Superior Court of Justice civil trial coordinator in Belleville.

Muszynski J.