COURT FILE NO.: CV-18-0200-000
DATE: 2021-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kevin Jay Schram
Mr. V. Popescu, for the Plaintiff
Plaintiff
- and -
Matthew Loughrey
Mr. A. Challis, for the Defendant
Defendant
HEARD: June 8, 2021, at Thunder Bay, Ontario via video conference
Mr. Justice D.C. Shaw
Decision On Motion
[1] The defendant brings a motion for leave, nunc pro tunc, to deliver a jury notice which was served more than two years after the close of pleadings.
[2] The plaintiff brings a motion to strike the jury notice.
[3] The issues are the circumstances of the delay and whether the plaintiff would suffer prejudice if leave to deliver the jury notice was granted.
A. Background
[4] The statement of claim alleges that the plaintiff was injured as a result of a boating accident on May 21, 2016.
[5] The action was commenced on May 4, 2018. The statement of defence was delivered on June 28, 2018. Pleadings were closed on July 8, 2018.
[6] After the close of pleadings, the following steps were taken in moving the action forward:
a. March 14, 2019 – examinations for discovery were conducted;
b. November 2019 – the plaintiff sent a referral to OMEGA Medical Consultants for a series of multi-disciplinary assessments;
c. December 4, 2019 – plaintiff completed undertakings with the exception of a quantification of income loss claim;
d. January 9, 2020 – OMEGA retained;
e. February 11, 2020 – 3 notifications received from OMEGA scheduling assessments for April 13-17, 2020;
f. March 27, 2020 – OMEGA assessments cancelled due to COVID-19;
g. June 25, 2020 – OMEGA assessments rescheduled for August 2020;
h. August 2020 – OMEGA assessments conducted;
i. September 9, 2020 – defendant served jury notice, without leave;
j. September 22, 2020 – OMEGA assessments served on defendant;
k. January 22, 2021 – defendant scheduled medical assessments of the plaintiff for July 2021;
l. January 29, 2021 – expert economic loss/loss of housekeeping expert report served on the defendant;
m. March 24, 2021 – plaintiff brought a motion to strike jury notice;
n. April 16, 2021 – the defendant requested additional discovery of the plaintiff on undertakings, to take place in June 2021;
o. April 22, 2021 – defendant brought motion for leave, nunc pro tunc, to deliver a jury notice.
[7] Shortly after the plaintiff had been served with the defendant’s jury notice on September 9, 2020, counsel for the plaintiff wrote to the defendant on September 14, 2020, requesting that the jury notice be withdrawn, failing which a motion to strike the jury notice would be brought.
[8] Having received no response, counsel for the plaintiff wrote to the defendant on November 25, 2020, requesting a reply to the letter of September 14, 2020. On December 7, 2020, counsel for the defendant advised that he would get instructions on the jury notice. Counsel for the plaintiff followed up with a letter on December 11, 2020. Counsel for the defendant replied on December 11, 2020 that he was getting instructions.
[9] On January 22, 2021, counsel for the plaintiff again followed up with a letter requesting whether the jury notice would be withdrawn, failing which a motion to strike would be brought. Counsel for the defendant wrote back on January 22, 2021, advising that he had written for instructions. On February 17, 2021, counsel for the plaintiff again followed up and advised that a motion to strike the jury notice would be brought if no answer was received by February 19, 2021. On February 18, 2021, counsel for the defendant wrote to advise that the defendant would not agree to set aside the jury notice and that it would oppose a motion to set it aside.
[10] The defendant has filed affidavit evidence which states that the litigation guidelines of the defendant’s insurer requires defence counsel to file jury notices for all personal injury claims. These are standing instructions to all defence counsel. Through an oversight, defence counsel in this case did not file a jury notice with the statement of defence. This oversight was discovered by defence counsel on or about September 25, 2018, approximately three months after the statement of defence was delivered. However, apparently as a result of a “miscommunication” within the insurer’s reporting software, instructions were not provided at that time to defence counsel by the previous claims handler.
[11] It is alleged in the defendant’s affidavit that on or about September 1, 2020, the claims handler at the time discovered that a jury notice had never been filed and immediately instructed defence counsel to file a jury notice. The jury notice was served on September 9, 2020.
B. The Law
[12] In Proper v. Nikore, 2010 ONSC 2307, the Divisional Court reviewed earlier authorities on leave to late file a jury notice. The court concluded, at para. 26, that 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:
the circumstances of the delay; and
whether there is prejudice to the other side.
[13] As to the circumstances of the delay, Molloy J., writing for the court, stated at para. 27:
With respect to delay, it is relevant to consider both the length of the delay and the reasons for the delay. The longer the delay, and the closer the case is to trial, the greater will be the likelihood that the delay will be considered unconscionable delay. Where there has been an unforeseen development in the case (such as an increase in the quantum of damages sought, or the addition or removal of parties or causes of action), the delay is less likely to be objectionable. Likewise, where the intention had been to deliver a jury notice and it was solely due to the inadvertence of counsel that this was not done, the delay is less likely to be considered unconscionable.
[14] With respect to prejudice, Molloy J., at para. 28, held that there was no presumption of prejudice. However, logical inferences could be drawn in appropriate cases. For example, if the effect of a jury notice will be to delay the trial, prejudice to the other party can be inferred.
[15] The within motions are, of course, heard in the context of the COVID-19 pandemic.
[16] In Louis v. Poitras, 2021 ONCA 49, released on January 25, 2021, the Court of Appeal dealt with an appeal from the Divisional Court, which had set aside the decision of the motions court judge to strike a jury notice during the pandemic. Hourigan J.A. writing for the Court of Appeal observed at paras. 1 and 3:
The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases' timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed….
There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.
[17] At para. 17, Hourigan J.A. discussed the role of a judge considering a motion to strike a jury notice:
It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury. 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 a broad discretion to determine the mode of trial. This court described the role of the court this way in Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal refused, [2006] S.C.C.A. No. 496:
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.
[18] At para. 22, Hourigan J. A. agreed with the statements of Brown J. A., in his decision on the stay motion in Louis v. Poitras, 2020 ONCA 815, at para. 33, that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice”, and that the whole raison d’etre of the civil justice system as captured in r. 1.04 (1) is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits.”
C. Positions of the Parties
(i) Defendant
[19] The defendant emphasizes that the delay in serving a jury notice was the result of counsel’s inadvertence in overlooking the defendant’s litigation guidelines and that when the oversight was discovered, instructions were provided to immediately file the jury notice. The defendant submits that the late filing was not a delay tactic or a change in strategy and that there is no evidence that the case would have been conducted differently by the plaintiff.
[20] As for prejudice, the defendant submits there is none. The defendant submits that the action is not ready for trial, that the defendant has to complete discoveries and defence medicals. As to a delay in scheduling a jury trial, the defendant submits that it is premature to consider this as prejudice. The defendant submits that it is unknown what effect the pandemic will have on jury trials and that any potential prejudice this may cause can be revisited at a later date.
(ii) Plaintiff
[21] The plaintiff submits that the service of the jury notice more than two years after the close of pleadings appears to be a change in the strategy of counsel at a late stage of proceedings.
[22] The plaintiff submits that the parties have proceeded through discoveries on the assumption that this was a judge alone trial and that there is no reason to depart from that expectation at this stage, citing Mahadeo v. Blue Cross Life Insurance Co., 2019 ONSC 6611, at para. 29.
[23] The plaintiff submits that the scheduling of criminal jury trials will take precedence over civil jury trials and that the wait for a jury trial will be substantially greater than the wait for a judge alone trial.
Discussion
[24] I accept that the initial failure to deliver the jury notice on a timely basis was due to the inadvertence of defence counsel, and that the late filing was not done for tactical or strategic reasons.
[25] However, I am concerned with the fact that after the oversight was discovered by defence counsel on September 25, 2018, and instructions were sought from the insurer, the insurer, for reasons ascribed to “miscommunications within its reporting software,” did not discover the failure to file and did not give instructions to file until almost two years later in September 2020.
[26] I also note that after plaintiff’s counsel objected to the late filing and requested that the jury notice be withdrawn it took another five months and numerous e-mails to defence counsel before the defendant advised that the jury notice would not be withdrawn.
[27] I am drawn to the comment of Dunphy J. in Smith v. Trisect Construction Corporation, 2016 ONSC 782, at para. 9, a case where the defendant requested leave to late file a jury notice:
While my acceptance of the position of the defendant that the failure in this case was attributable to inadvertence, that finding blunts but does not remove the first factor (circumstances of the delay) from the equation. Inadvertence unchecked and unverified over a long period of time begins to take on a hue more akin to negligence.
[28] However, although I am concerned about the circumstances of the delay, I have determined that the primary consideration in this case is the prejudice to the plaintiff of granting leave at this time to allow the defendant to deliver a jury notice. In my view, the prejudice is such that the motion for leave should be dismissed. The jury notice that was filed, without leave, is to be struck.
[29] The plaintiff advises that it is ready for trial and that the action will be set down for trial forthwith following the decision on this motion as to whether the trial will proceed as a jury trial or a judge alone trial.
[30] As noted by my colleague, Fitzpatrick J., in his decision in Doran v. Huls, 2021 ONSC 3291, released on May 3, 2021, striking out a jury notice, the Regional Senior Judge for the Northwest Region has directed that no civil jury cases will be scheduled for 2021. I have followed up with the Regional Senior Judge as to the status of that directive. I am informed that no civil jury trials will be scheduled until September 2022. Even then, those civil jury cases will be in a queue and there is a distinct possibility that the instant case, being at the end of the queue once it is set down, will not be heard until 2023.
[31] At para. 15 of Doran v. Huls, Fitzpatrick J. who is the Local Administrative Judge (Civil) in the Northwest Region, held:
The delay in this matter is due to local conditions that mean for this plaintiff a denial of the timely delivery of justice if the matter is left on a civil jury list. The civil jury list for the Northwest for all intents and purposes is being held in abeyance at the present time as the result of the pandemic. In my view, this is real prejudice.
[32] Fitzpatrick J. referred to the decision of Varpio J. in Evans v. Bouchard-Chiarello, [2021] O.J. No. 1881, released April 12, 2021, from Sault Ste. Marie. Justice Varpio concluded, at para. 16, that “it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023, whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.”
[33] I too, am reasonably confident that a judge alone civil trial that is set down in Thunder Bay this month can be reached during the first half of next year, if not earlier. I have confirmed this timing with the Local Administrative Judge (Civil). In this region, non-jury sittings are held roughly every two months, usually with multiple judges available to try the cases. There are fewer civil jury sittings. Criminal jury trials must be given priority over civil jury trials for Charter reasons. I am advised by the trial coordinator for the Northwest Region that at this time a judge alone trial can be placed on any running list for 2021 and 2022.
[34] A “wait and see” approach is of little avail to the plaintiff. Civil jury trials are placed on a list quite separate from non-jury civil trials. If this case was placed on the civil jury trial list, the plaintiff would miss out on trial dates on the judge alone running lists as those dates become available.
[35] In the Northwest Region, there is no need to “wait and see” what will happen to civil jury lists – by directive of the Regional Senior Judge, civil jury cases must wait until September 2022 at the earliest.
[36] I note that this is not a case where the plaintiff is seeking to strike a validly delivered jury notice. Rather, this is a case where the defendant, who has served a jury notice that is more than two years late, is asking the court to exercise its discretion to permit late filing. The circumstances do not warrant the exercise of that discretion in favour of late filing, regardless of whether the failure to file was due to inadvertence of counsel. The prejudice to the plaintiff is real and substantial.
Conclusion
[37] For the reasons given, the defendant’s motion for leave to file a jury notice is dismissed and the plaintiff’s motion to strike the improperly filed jury notice is granted.
Costs
[38] At the hearing of the motions, counsel for the plaintiff and counsel for the defendant agreed that the successful party on the motions should receive costs of $4,000, all inclusive. Accordingly, on consent, the plaintiff is awarded costs of the motions, fixed in the sum of $4,000, all inclusive, payable within 30 days.
“original signed by”
The Honourable Justice D. C. Shaw
Released: July 16, 2021
COURT FILE NO.: CV-18-0200-000
DATE: 2021-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kevin Jay Schram
Plaintiff
- and -
Matthew Loughrey
Defendant
DECISION ON MOTION
Shaw J.
Released: July 16, 2021
/lvp