Court File and Parties

COURT FILE NO.: CV-19-00613402-0000

DATE: 20220602

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander Andres and Peck Git Huan, Plaintiffs

AND: Azzam Mustafa Rasheid, Stephan Goslinski and Naomi Goslinski, Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: Lianne Sharvit, for the Plaintiffs Ryan D. Truax, for the Defendants

HEARD via Video Conference: May 26, 2022

ENDORSEMENT

[1] The Plaintiffs bring this motion seeking leave to initiate the motion, and if granted, for leave to amend the Statement of Claim to move this action into the Simplified Rules and to strike the jury notice. In order to determine this motion, it is necessary to review the history of the action.

Background Facts

[2] This is a claim by the Plaintiff Peck Git Huan (“Huan”) for damages for injuries allegedly sustained in a motor vehicle accident which occurred on January 28, 2017. She was a passenger in a vehicle being driven by her husband, the co-Plaintiff, when it was involved in a collision.

[3] The action was commenced on January 28, 2019 in the ordinary procedure. A Statement of Defence was delivered by the Defendant Rasheid on April 4, 2019. The examinations for discovery took place in December 2019; the claims against the co-defendants were dismissed and the Defendant Rasheid made a formal admission of liability.

[4] The Plaintiffs delivered the trial record and filed it with the Court on February 8, 2021. In May 2021, counsel attended before me and requested a trial date with a jury. At that time, I fixed the trial date on consent to proceed in the jury sittings commencing in October 2022. A pretrial date was set for August 25, 2022. As is the requirement in Toronto, counsel agreed upon a timetable for the delivery of expert reports at that time.

[5] On March 9, 2022, counsel for the Plaintiffs first raised the plan to move the action to the Simplified Rules and strike the jury notice. The solicitor for the Defendant did not agree with the suggestion, and counsel attended in Civil Practice Court and secured the date for today’s motion.

Positions of the Parties

Plaintiffs

[6] Counsel submits that leave to initiate this motion ought to be granted pursuant to Rule 48.04 because when the claim was instituted, the monetary jurisdiction of the Simplified Rules was $100,000 and the amendments to the Rules had not occurred. The Plaintiffs are prepared to limit the prayer for relief to $200,000 and proceed with a 5-day trial in a summary fashion. Ms. Sharvit submits that this is proportional to the issues in the lawsuit and will result in a reduction in trial time and in court costs. In counsel’s submission, this case is similar to Lightfoot v. Hodgins et al., 2021 ONSC 1950. Finally, counsel submits that there is no prejudice to the Defendant as a result of the order sought, because there is no evidence that any “litigation strategy” would be affected by striking the jury notice and moving the case to the Simplified Rules.

[7] Counsel for the Defendant submits that the right to a jury trial is a substantive one and there is nothing unique about this case that suggests it should be moved to the Simplified Procedure and tried without a jury. The Defendant has intended throughout that this case would be tried before a jury and the first notice of the Plaintiffs’ intention to move the action from the ordinary procedure was in March 2022. To deprive the Defendant of the right to a jury trial would be unfair at this juncture.

Analysis

[8] There were amendments to the Courts of Justice Act, R.S.O. 1990 c. C.43 that came into effect January 1, 2020, for matters pursuant to Rule 76 (Simplified Rules cases). The amendments increased the monetary jurisdiction of the Simplified Rules from $100,000 to $200,000. A limit was imposed on costs of $50,000 and disbursements of $25,000 and the case must be completed in 5 days. Simplified Rules cases cannot be tried with a jury: Rule 76.02.1, Rule 76.14 states that Rule 76.02 does not apply to actions where a jury notice was delivered prior to the amendments. In the instant case, what the Plaintiffs wish to do is move the case from the ordinary procedure to the Simplified Rules, strike the jury notice and proceed by way of the simplified procedure with the case being completed in 5 days.

[9] The first issue to be determined is whether leave should be granted pursuant to Rule 48.04 which requires that leave must be obtained to bring a motion if a party has set an action down for trial. Generally, a party must demonstrate that there has been a substantial or unexpected change in circumstances in order to obtain leave from the Court.

[10] Counsel for the Plaintiffs submits that when the claim was issued, the Simplified Rules had not been amended and the monetary jurisdiction was $100,000. Now, the Plaintiffs wish to be efficient and have a trial that is cost effective, which the amendments provide for. Furthermore, counsel argues that the right to amend pleadings and have an efficient trial is a substantive right that ought not to be denied.

[11] I am not persuaded that leave ought to be granted to the Plaintiffs to bring this motion. While the amendments to Rule 76 had not come into force when the action was issued, they had been in effect for more than a year at the time the action was set down for trial in February 2021. The examinations for discovery were complete and had the Plaintiffs wished to bring a motion to strike the jury notice and move the action to the Simplified Rules, they had more than a year to do so. Nothing has changed since February 2021 that would justify granting leave to the Plaintiffs; there are no extenuating circumstances. Indeed, instead of bringing the motion, counsel attended before me and fixed a trial date and a pretrial date, confirming to the Court that this action was ready to proceed as a jury trial.

[12] In the event that I am incorrect on the issue of granting leave pursuant to Rule 48.04, I will determine the motion on its merits, based on the evidence before me.

[13] This case is set to proceed to trial with a jury in October 2022. When counsel attended to fix the trial date, they agreed the trial before a jury would take 10 days of trial time. The trial certification form indicated that the Plaintiffs’ case would take 7 days and the defence case would require 3 days. Counsel indicated no motions were contemplated. They also filed a timetable for service of expert reports which required the Plaintiff to serve all expert reports by March 1, 2022, and the Defendant by June 1, 2022. I approved that timetable.

[14] This is not a case where if the jury notice were struck and the action moved to the Simplified Rules an earlier trial date could be secured. To the contrary; the parties have a fixed trial date some 4 months hence and if that date were vacated, this case would not be tried before 2023. I do not find it is in the interests of justice or in the interests of the parties to delay the trial of this case.

[15] When I inquired from counsel if the case was trial ready, I was informed that the Plaintiff has failed to deliver any expert reports; it has breached the expert timetable it agreed to more than a year ago. As a result of the lack of service of expert reports from the Plaintiffs, the Defendant has not undertaken any defence medical assessments. Given that the pretrial is set for August, the Plaintiffs cannot serve expert reports in compliance with the timelines set out in Rule 53.

[16] This is a claim arising from a motor vehicle accident and as such, the Plaintiffs must serve an opinion from a medical doctor confirming that the injuries are serious and permanent in order to be successful on the case. There was no satisfactory explanation from counsel as to why no expert opinions have been served to date.

[17] I agree with the analysis of Justice A. Ramsay in Thomas v. Aviva, 2022 ONSC 1728 where she states, “Read in concert, the transition provision in s. 108(2.1) of the CJA and rule 76.14 of the Rules of Civil Procedure, make it clear that the amendments with respect to limiting jury trials under Rule 76 were not to have retrospective (retroactive) effect, but rather, were to operate prospectively for any jury notice delivered after January 1, 2020.”

[18] It is trite law to say that the right to a jury trial is a substantive right; not absolute, but important. In this case there is no evidence that persuades me the jury notice ought to be struck or that there is any advantage to moving the action to the Simplified Procedure at this point in time. Rather, the motion seems tactical.

[19] It is unclear to me why the Plaintiffs have breached the timetable order I made requiring their expert reports to be served by March 1, 2022. The submission that the Plaintiffs are ready for trial and wish an expeditious, efficient, cost-effective trial is difficult to accept given the failure of the Plaintiffs to serve expert reports in compliance with the timetable counsel agreed to. Further, the broad-brush assertion that jury trials take longer than non-jury trials and are more expensive to the parties is simply not the case. What increases costs of trials is the failure of counsel to agree on matters that ought to be agreed upon and the failure to work collaboratively to ensure the evidence is put before the Court in an efficient, fair fashion.

Order

[20] The Plaintiffs’ motion is dismissed.

[21] Counsel filed cost submissions with their motion materials. The Plaintiff seeks partial indemnity costs of $3,672.50 plus HST and disbursements of $1,410.34, the bulk of which is the cost of the transcripts from the cross examination of Mr. Brown on his affidavit.

[22] The Defendant seeks costs of $14,576.10 plus a further $640 for the motion attendance plus disbursements of $112.20 for a total sum of $15,328.30.

[23] In my view, this motion was ill-conceived, unsupported on the law or on the facts and ought not to have been initiated. As a result, the Defendant is entitled to its costs. However, the sum sought of $15,328.30 is excessive in the circumstances. It was not a complicated motion, the number of hours sought for research and preparation of materials is difficult to comprehend. I acknowledge that the cross examination added time and was unnecessary. In my view, the Defendant as the successful party is entitled to reasonable costs which I fix in the sum of $7,500 plus HST plus the disbursements claimed.

Date: June 2, 2022