Court File and Parties
COURT FILE NO.: CV-17-313 DATE: 20211028 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jacqueline Waller, Plaintiff AND: Ryan Brown and Karen Brown, Defendants
BEFORE: Muszynski J.
COUNSEL: E. Bergeron, for the Plaintiff T. McCarthy, for the Defendants
HEARD: October 28, 2021
REASONS FOR DECISION ON RULE 59.06(2)(a) MOTION
[1] This personal injury action is scheduled to proceed to trial in Kingston on November 8, 2021 with a jury.
[2] The plaintiff brought a motion to strike the defendants’ jury notice that was returnable on October 21, 2021.
[3] On October 18, 2021, I held a case conference with counsel to discuss issues relating to the upcoming trial, including the plaintiff’s motion. My endorsement from the October 18, 2021 case conference reads as follows:
The parties agree to approach the issue of the jury notice in the same fashion as in prior cases in Kingston; specifically, that the jury notice will be struck if Kingston cannot accommodate a jury trial on November 8, 2021.
The parties have been informed that, as of today, a criminal jury trial is scheduled to proceed in Kingston commencing November 8, 2021. As recently as last week, defence counsel on the criminal trial advised that there will be no re-election. Due to the pandemic restrictions, there cannot be more then one jury trial run out of the Kingston courthouse at the same time. Moving this trial to a different jurisdiction to proceed with a jury is not an option.
Counsel for the plaintiff takes the position that they need to know as soon as possible whether the trial will be proceeding with a jury or by judge alone. Counsel for the defendants takes the position that a decision can be made on November 1, 2021 (i.e. a week before) as to whether the trial will proceed with a jury or by judge alone.
The parties agree that the jury notice can be struck if Kingston cannot accommodate this civil jury trial on November 8, 2021. The only issue that will be put to the motion judge is the timing of when that determination should be made.
[4] The parties were able to negotiate a resolution of the motion and entered into a consent order on October 18, 2021 (the “Consent Order”). The Consent Order provides:
In the event that by October 28, 2021 at 4:30 p.m. it is not possible to conduct the trial of the within action before a jury, the said jury notice shall be conditionally struck such that the trial of this action shall proceed by judge alone if called on or soon after November 8, 2021.
[5] The Consent Order effectively establishes a “wait-and-see deadline”, after which, the defendants’ jury notice would be struck if a jury trial could not be accommodated.
[6] A further case conference took place with counsel on October 26, 2021. On that date, counsel for the defendants advised that he was seeking an extension of the wait-and-see deadline to November 2, 2021. Counsel for the plaintiff did not consent to the extension.
[7] The parties agreed that a motion was required, which was heard this morning. This decision relates to the defendants’ motion to vary the Consent Order pursuant to Rule 59.06(2)(a) to extend the wait-and-see deadline to strike the defendants’ jury notice to November 2, 2021 at 4:30 p.m.
Procedural Issues
[8] The circumstances of the defendants’ motion are somewhat unusual. The parties agree that the motion shall proceed on the following terms:
a. The parties agree that the defendants should be granted leave to bring this motion, if required, pursuant to Rule 48.04(1).
b. No written notice of motion is required.
c. No affidavit evidence will be filed.
d. The defendants have filed a factum, but the plaintiff has elected not to file a factum.
e. I can take judicial notice of the circumstances surrounding the criminal jury trial and the capacity of the Kingston courthouse to accommodate jury trials given the public health restrictions associated with the COVID-19 pandemic.
Legal Framework / Analysis
[9] Firstly, the defendants are granted leave to bring this motion.
[10] With respect to the defendants’ motion to vary the terms of the Consent Order, Rule 59.06(2)(a) provides that a party who seeks to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made may make a motion in the proceeding for the relief claimed: Rules of Civil Procedure R.R.O. 1990, Reg. 194.
[11] There is no fraud alleged in this case, rather, the defendants take the position that new facts were discovered after the Consent Order was entered into that justify a variation. The allegedly new information relates to the status of the criminal jury trial and the likelihood of it proceeding.
[12] Specifically, the defendants submit that on October 25, 2021 they received communication from the criminal defence lawyer involved in the November 8, 2021 criminal jury trial in response to a request for an update about the status of the trial. The criminal defence counsel stated: “unfortunately at this time we are not in a position to provide any solid update. We have been in communication with the Crown and will be meeting with the client end of week, perhaps then we will be better able to advise.” Counsel for the defendants submits that this communication represents new information that was not discoverable at the time that the Consent Order was agreed upon. On that basis, the defendants take the position that a modest extension of the wait-and-see deadline is warranted given the substantive right of the defendants to proceed to trial by jury.
[13] The plaintiff was originally seeking an order that the defendants’ jury notice be struck at the return date of the motion (i.e. October 21, 2021). The plaintiff negotiated an extension of their ideal wait-and-see deadline to October 28, 2021 which was incorporated in the Consent Order. The plaintiff submits that one consideration in agreeing to the October 28th deadline was having the weekend of October 30th and 31st to prepare for trial having the benefit of knowing with certainty whether it would be proceeding by judge alone.
[14] In my view, this motion is less about the appropriate wait-and-see deadline or the defendants’ substantive right to trial by jury and more about whether the terms of this Consent Order, which were negotiated between counsel, should be varied.
[15] In Hall v. Durham Catholic District School Board, Shaughnessy RSJ (as he was then) confirmed the test for varying an order pursuant to Rule 59.06(2)(a):
Rule 59.06(2) on its face, relates to setting aside or varying an Order based on newly discovered evidence or facts. The test for setting aside, or varying an Order is found in Becker Milk Co. Ltd. v. Consumers' Gas Co. (1974), 1974 CanLII 545 (ON CA), 2 O.R. (2d) 554, 43 D.L.R. (3d) 498 (C.A.), at p. 557 O.R. as follows:
(1) That the evidence "might" probably have altered the judgment and,
(2) That the evidence "could not with reasonable diligence have been discovered sooner": See 2005 CanLII 23121 (ON SC), [2005] 80 O.R. (3d) 462 at para 12.
[16] When considering the test set out above, it is significant that the order that the defendants seek to vary in this case was not one imposed by the court after a trial, it was the result of a voluntary agreement reached on consent.
[17] As Quinn J. stated in Verge Insurance Brokers Limited et al v. Richard Sherk et al: “A consent order represents an agreement reached by the parties. A court rarely, very rarely, should pick and choose what part or parts of that agreement may be reworded or otherwise excused from enforcement”: see 2015 ONSC 4044 at para 72.
[18] Counsel for the plaintiff bargained away his opportunity to argue for an earlier wait-and-see deadline at the October 21, 2021 motion when he entered into the Consent Order. This is not insignificant.
[19] Further, I do not accept the defendants’ submission that the information about the status of the criminal trial could not have been known earlier.
[20] At the October 18, 2021 case conference counsel understood that the status of the criminal trial would impact whether this action could proceed with a jury. As recently as October 25, 2021 the fate of the criminal trial was still unknown. Will there be a re-election by the end of this week? Will there be a resolution? We still do not know with certainty. We are in the same position as we were on October 18, 2021 but for the passage of time which was, of course, inevitable.
[21] As the pressure of a trial date approaches in any matter, criminal or civil, parties are forced to re-evaluate their case which can, and often does, result in resolutions or re-elections. This is a reality in every case and is not unique here. I reject the defendants’ submission that the communication from the criminal defence lawyer amounts to new facts that would justify varying the Consent Order.
Conclusion
[22] The defendants’ motion to vary the Consent Order is dismissed. The issue of costs of this motion is reserved.
Muszynski J.
Date: October 28, 2021