Court File and Parties

COURT FILE NO.: CV-19-00000280-0000

DATE: 20220712

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Randy Edwards, Plaintiff

AND:

G-Douglas Alcock, Defendant

BEFORE: Justice V. Christie

COUNSEL: Kaitlyn MacDonell, Counsel for the Plaintiff Samantha Cain, Counsel for the Defendant

HEARD: July 11, 2022

RULING RE REQUEST TO TRANSFER ACTION TO SIMPLIFIED PROCEDURE

[1] The Plaintiff has brought a motion, served on the Defendant on May 17, 2022, requesting the following relief:

1. An Order for this action to continue under the Simplified Procedure Rules pursuant to Rule 76;

2. An Order granting leave to the Plaintiff to amend the Statement of Claim; and

3. An Order granting leave to the Plaintiff to strike the Jury Notice delivered on behalf of the Defendant.

[2] This action arises from a motor vehicle collision that occurred on February 19, 2019, at the intersection of Highway 7B and Lily Lake Side Road in Peterborough, Ontario.

[3] The Statement of Claim was issued on October 25, 2019, claiming the sum of $1,000,000.00, in addition to pre-judgment and post-judgment interest and costs. There was an amendment to Rule 76 on January 1, 2020 that doubled the monetary limit of the simplified procedure jurisdiction from $100,000 to $200,000. A Statement of Defence and Jury Notice were delivered on January 21, 2020. Examinations for Discovery of the Plaintiff and Defendant were completed on July 16, 2020. The Trial Record was filed on August 6, 2020. A private mediation was held on June 11, 2021, and it was unsuccessful. A certificate of readiness was served on February 9, 2022.

[4] A pre-trial was held on March 11, 2022, however no resolution was reached. The endorsement states:

1. A pretrial was held today and the court’s views provided.

2. The parties plan to continue settlement discussions but are ready for trial.

3. This court orders that this jury action shall be placed on the trial sittings list for November 2022. Trial estimate is 12-13 days. Counsel will require a courtroom with audio/visual capabilities as expert witnesses may provide testimony by Zoom, subject to the discretion and direction of the trial judge.

[5] The Plaintiff claims that having now reviewed the medical information and current medical status of the Plaintiff, the Plaintiff is now willing to reduce his claim from $1,000,000.00 to $200,000.00 and proceed by way of Simplified Procedure – Rule 76. The Plaintiff claims that this action calls for a proportional approach that can be achieved under the summary trial process with a judge alone. The Plaintiff claims that there is no prejudice to the Defendant by proceeding under Rule 76 and that the Defendant has not demonstrated that their strategy would have been different if this had always been a judge alone trial. The Plaintiff claims that this matter is equipped to proceed by way of a 5-day, non-jury trial under Rule 76, as opposed to a 3-week jury trial.

[6] It is not anticipated that liability will be an issue at trial, even though, it remains an issue at this time. Damages, however, are in serious dispute, in addition to the fact that there will be a threshold motion.

[7] Under Rule 48.04(1) a party who sets down an action for trial may not initiate or continue any motion or form of discovery (with certain exceptions), without leave of the court. Rule 1.04(1), however, provides that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[8] There have been two recognized approaches the court can take for granting leave under Rule 48:

a. Where the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record, or

b. If it is in the interest of justice.

See: Chandrababu v Tharmalingham, 2021 ONSC 4885 at para. 16; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, para. 12. In the context of the ongoing COVID-19 pandemic, the more flexible test has been found to be more consistent with Rule 1.04. See J.A.L. Developments Inc. v. Residents of Springhill Inc. 2020 ONSC 2222 at paras. 64, 66, 68-69. See also Denis v. Lalonde, 2016 ONSC 5960 at para 23, where the court stated that the moving party must show a “substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust”.

[9] The Court has been encouraged to consider the following factors in determining whether to grant leave: 1) what the party seeking leave knew when it delivered the trial record, 2) whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial; 3) the purpose of requesting leave; 4) the nature of the relief being requested; 5) whether the party opposing leave would suffer prejudice; and 6) whether the relief sought would likely be granted if leave were given. See Fulop v. Corrigan, 2020 ONSC 1648 at para. 77

[10] The Plaintiff submits that there have been many changes of circumstances since commencing the within action, including:

1. The Rules of Civil Procedure were amended to increase the monetary limit for Simplified Procedure from $100,000 to $200,000.

2. At the time of commencement of the claim, the Plaintiff was having difficulty performing his duties and was looking at being terminated from his $75,000 per annum job. He was not able to obtain alternative employment until October 2021.

3. The COVID-19 pandemic.

[11] While the amendment to the Rules and the COVID-19 pandemic are changes since the commencement of the action, these are not changes in circumstances since the filing of the trial record. The amendments were in force eight months before the trial record was filed and the COVID-19 pandemic was widely known in March 2020, 5 months before the trial record was filed. The Plaintiff suggests that due to the COVID-19 pandemic, there is a large backlog of cases and that this trial may not be reached in November. There is absolutely no evidence that this trial will not be reached in November. There is no evidence as to how many cases are on the list or how backlogged the list is in November. There is certainly no suggestion that this case will be reached earlier if it proceeded by Simplified Procedure for 5 days. This trial would still be listed on the November sittings. That is the process in the Central East Region.

[12] It is of note that the Trial Record was filed in August 2020, yet the first request for a pre-trial was in August 2021, a year later. This matter has never been previously scheduled for trial or adjourned for any reason. While the Plaintiff suggests delays on the part of the court, there is no evidence of this in this case.

[13] As for the employment issues, the nature and extent of the Plaintiff’s alleged injuries were known, or ought to have been known, to him before he served a Trial Record. The record on this motion demonstrates that the Plaintiff was employed when the claim was issued but did not know if he would need to retire early due to his alleged injuries. At the time of his discovery, July 16, 2020, he stated that he had been trying to find a job (page 72 of the discovery transcript) and that he had extended his search to the Toronto marketplace. (page 97 of the discovery transcript). Currently, he is employed but might have to retire early. There is no substantial or unexpected change. His current status as employed is not unexpected. It is also of note that there has been no request to amend any allegations in the Statement of Claim.

[14] In May v. Hutchinson, 2013 ONSC 7712, the Plaintiff moved to transfer the action to the Small Claims Court on the ground that her claim for damages for pain and suffering arising from the accident was more properly limited to $25,000 after the $30,000 statutory deductible was applied pursuant to the Insurance Act and, therefore, argued that the action was more properly dealt with in the Small Claims Court. Broad J. stated in part:

[13] Moreover, I am not satisfied that there has been a material change in circumstances subsequent to the issuance of the statement of claim which would justify the transfer. The affidavit material of the plaintiff, while noting the post-accident workplace injuries, does not clearly set forth the basis upon which the amount of her claim for damages against the defendant would be reduced. The defendant points out that the plaintiff, on her examination for discovery, gave evidence that the only areas of her body that were injured in the subject motor vehicle accident were her neck, shoulders and back. She also confirmed that she only injured her left forearm, left hip, left leg and left ankle as a result of the November 2012 workplace accident and she only injured her tailbone in the January 2013 workplace accident. She acknowledged on discovery that the January 2013 accident did not have any effect on her neck and shoulders.

[14] I accept that, in the exercise of a discretion on whether to transfer an action to the Small Claims Court, the court should consider the overall goal expressed in rule 1.04 of securing the just, most expeditious and least expensive determination of every civil proceeding on its merits, and the principle of proportionality. The inclusion of the adjective "just" in Rule 1.04 carries with it a requirement that the process adopted, and the exercise of discretion by the court, must be fair to both sides. It was the plaintiff who chose to claim the amount of damages that she did and to commence her action in the Superior Court and the defendant was entitled, and indeed required, to marshal resources and to adopt a litigation strategy commensurate with the claim and the forum chosen by the plaintiff. In the circumstances of this case, it would be unfair to the defendant to effect a transfer to the Small Claims Court simply because the plaintiff has now come to the realization that her true claim for damages is within the jurisdiction of the Small Claims Court and wishes to mitigate her exposure to a possible adverse award of costs in the Superior Court. This is not a case, like Graves, of an increase in jurisdiction of the Small Claims Court bringing the plaintiff’s claim within the new expanded jurisdiction, thereby justifying a transfer.

[15] Moreover, I am not satisfied that a transfer to the Small Claims Court would result in an appreciably more expeditious process, given that virtually all of the required pre-trial steps have been completed and the action is ready to be set down for trial and pre-tried in the Superior Court.

[15] This court is not convinced that leave to bring a motion should be granted. This action has been ongoing since October 2019. The amendment to the Rules occurred 2.5 years ago. The Plaintiff filed a Trial Record in August 2020 and served a Certificate of Readiness on February 9, 2022. At a pre-trial in March, Justice Healey listed the matter for trial in November 2022, with an estimate of 12-13 days for trial, with no objection from the Plaintiff. The Plaintiff candidly stated that the pre-trial helped to solidify the assessment of damages in this case. It is clear to this court that the Plaintiff’s primary, perhaps sole, motivation, in bringing this motion is to limit his costs exposure.

[16] The Plaintiff has not established a substantial or unexpected change of circumstances since the filing of the trial record, or that it is just to grant leave in the particular circumstances of this case. Therefore, even applying the more flexible approach to granting leave, this court is of the view that it should be refused.

[17] Even if this court were to grant leave, the court would still dismiss the motion. Simplified procedure has significant impacts on the conduct of a trial, including:

1. The trial is limited to 5 days;

2. Each party is limited to 3 experts;

3. Evidence is produced through affidavit only, subject to limited cross examination;

4. Costs are capped at $50,000 plus HST

5. Disbursements are capped at $25,000 plus HST

6. Jury notices are only permitted in limited cases (not applicable here)

[18] This court agrees with the Plaintiff that the intention of amending the Rules to increase the monetary limit was to address delay in having civil matters litigated. The Simplified Procedure Rules can significantly reduce the time required for a trial by having examinations in chief dealt with by affidavit and cross-examinations restricted.

[19] There is no question that there is an obligation on counsel to determine before trial whether it is appropriate to move a matter to simplified procedure and that this may be reflected in an award of costs. There is also no question that matters must proceed in the most just, expeditious and cost-effective manner possible. See Rule 1.04 of the Rules of Civil Procedure and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87.

[20] The Plaintiff claims that the steps taken to date in this litigation have been conducted within the confines of the Simplified Procedure Rules. Further, each party has only one expert. The matter was mediated and pre tried. The Plaintiff submits that the Defendant’s trial plan set out in their material can be achieved within the confines of a simplified trial with examinations in chief by affidavit and restrictions on cross-examination. While this may be true, it is the view of this court that this ignores the fact that the Defendant has been insisting on and preparing for a jury trial since they filed a defence in January 2020, which was only days after the amendment to the Rules. The Plaintiff claims that the Defendant has not said what they would have done differently if proceeding without a jury. It is the view of this court that they are not required to say so, however, they have, for example, pointed to significant surveillance that they have obtained with a view toward presenting this to a jury. In Granville v. Blue Cross Life Insurance Company of Canada, 2021 ONSC 6728, the court denied the Plaintiff’s motion to transfer his action to either small claims court or simplified procedure. Among other things, the court held the transfer would prejudice the Defendant in that he would be deprived of his right to a jury trial. This was particularly concerning given the defence based it strategy on the action being tried by a jury. The court stated as follows:

[21] I also accept the Defendant’s submission that a transfer of this action to the Small Claims Court would deprive the Defendant of its substantive right to have the action tried by jury. The Defendant would be prejudiced because it has conducted its defence and based its litigation strategy on the action being tried in the Superior Court by a jury, particularly in light of its stated intention to rely on surveillance evidence that it asserts will contradict the Plaintiff’s allegations about his ability to work.

The Court referred to the reasoning in May v Hutchinson.

[21] This court does not accept that this trial could be completed in 5 days. As previously stated, Healey J. estimated a 12-13 day trial based on information from counsel. While it is appreciated that examination in chief by affidavit and restrictions on cross-examination will reduce the amount of time needed, it is not likely that the trial will be less than half of the time initially estimated. The Plaintiff provides no roadmap to satisfy this court that this trial could be effectively carried out in 5 days. Alternatively, the Defendant unequivocally states that a 5-day trial is impossible, given the need for opening and closing statements, the number of injuries at issue, the various damages sought, the fact that each party has retained an expert witness, the Defendant’s intention to call 10-11 additional witnesses to challenge the Plaintiff’s assertions, significant surveillance evidence totaling 6.5 hours in length, and a threshold motion. The Plaintiff claims that his pain and suffering is ongoing and that he has been struggling with daily activities. The Defendant intends to challenge these assertions by relying on extensive surveillance evidence and witnesses. The Defendant, alone, estimates 5-7 days for its case.

[22] It should also be noted that some cases require viva voce testimony to deal fairly and fully with the issues. This case will certainly involve issues of credibility which may be more fairly assessed with fulsome live testimony.

[23] Further, the Defendant wishes to have a jury trial and should be entitled to one. This intention was made clear from the outset and this wish has not waivered in the last 2.5 years. The Plaintiff has not raised any objection until now. In fact, there does not appear to have been any objection in March when this matter came before Justice Healey.

[24] The reality is that there will be no prejudice to the Plaintiff by having an ordinary procedure followed. The only prejudice that the Plaintiff points to is cost. However, the reality is that the Plaintiff commenced this claim with full appreciation of the cost consequences – nothing has changed. The Plaintiff continued this litigation, including filing a certificate of readiness for trial with full appreciation of the cost consequences. The Plaintiff accepted Healey J.’s estimate of trial time at 12-13 days. Nothing has changed.

[25] While it may be true that the Defendant would be perfectly able to conduct a trial in the same manner with or without a jury, this misses the point. The substantive right to a jury trial has been repeatedly affirmed by the court.

[26] As for civil trials by jury, pursuant to Rule 47.01, a party may require that the issues of fact and assessment of damages be tried by a jury by delivering a Jury Notice. A right to trial by jury in a civil case is a substantive right codified in section 108(1) of the Courts of Justice Act. This right ought not to be summarily taken away or “interfered with without just cause or cogent reasons”. See Cowles v. Balac, (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (ONCA) at para. 36; Wilkes v. Glover, 2021 ONSC 5988, para. 14.

[27] There is no suggestion in this case that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial, which merit the discharge of the jury. There is no suggestion that justice to the parties would be better served by the discharge of the jury. The only reason for taking this substantive right away from the Defendant would be so that the Plaintiff can limit their cost exposure.

[28] In Kempf v. Nguyen, 2015 ONCA 114, the court stated:

[43] In the majority reasons in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 496, O'Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice and appellate review of such a decision, as paraphrased here:

(1) The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See, also, King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32, at p. 533 S.C.R.: "the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons".

(2) A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).

(3) Appellate review of a trial court's exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See, also, Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295 (C.A.), at p. 69 O.R., leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 800n, [1985] S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge's exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).

(4) The reviewing court should not interfere with the trial judge's exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge's discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See, also, Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at p. 625 O.R. [page253]

(5) The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49).

(6) While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).

(7) It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See, also, Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109 (C.A.), at para. 70.

(8) In some cases, it is preferable to take a "wait and see" approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary (at para. 70).

(9) While in many cases the "wait and see" approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).

(10) If the reviewing court concludes that the trial judge erred in striking the jury notice, the merits of the action must be considered (at para. 92). As stated in King, at p. 533 S.C.R., a new trial is not warranted "if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge".

[29] This test confers a broad discretion on the Court to determine whether justice to the parties will be better served by discharging the jury. It 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. Cowles, para. 38-9

[30] The Ontario Court of Appeal, fairly recently, dealt with the issue of striking a jury notice. In Louis v. Poitra, 2021 ONCA 49, the court overturned a decision of the Divisional Court and reinstated the motions judge’s order to strike jury notices in an Ottawa action. The case demonstrates that the decision to strike a jury notice for reasons related to the COVID-19 pandemic will depend on the location and the specifics of the case. The Court stated:

[3] 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...

The Court also held that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice”. (para. 22) The Court encouraged motion judges to consider the interests of justice and the effect delay has on the administration of justice.

[31] The Plaintiff provided competing cases that deal with the analysis that the Court must undertake when moving a matter from Ordinary Procedure to Simplified Procedure when a jury notice is filed.

[32] In Lightfoot v. Hodgins et al., 2021 ONSC 1950, the Plaintiff sought leave to bring a motion, to amend the Statement of Claim to continue the action within the jurisdiction of Rule 76, and an Order striking the Defendants’ jury notice. The motion was argued only 3 months prior to trial. The parties agreed from the outset that the Plaintiff should be granted leave to bring this motion pursuant to Rule 48.04(1). It is of note that the Trial Record was served on March 27, 2019, many months before the amendment to the Rules. The parties also agreed that the Statement of Claim should be amended to proceed under the amended Rule 76. The parties agreed that the trial could be conducted within the 5-day limit. However, the parties disagreed about whether the jury could and should be maintained. Muszynski J. ultimately granted the motion in its entirety and stated in part as follows:

[68] I 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.

[69] Further, 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].

[70] In 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.

It is clear that there are many differences between Lightfoot and the case at bar. The agreement of the parties to the Simplified Procedure was key to the Court’s finding. Also, this motion was heard at a time when jury trials were still being delayed.

[33] In Thomas v. Aviva, 2022 ONSC 1728, A.P. Ramsay J. granted the Plaintiff’s motion, on consent, to amend the Statement of Claim to reduce the damages to $200,000, but dismissed the balance of the Plaintiff’s motion to have the action governed by Rule 76. At the time of this motion, the Plaintiff had not yet set the matter down for trial. The Court stated in part as follows:

[14] I therefore disagree with the plaintiff that as damages are now reduced to the limits for simplified procedure actions, a transfer to Rule 76 is mandatory. In my view, given the existence of the defendants’ jury notice any consideration of whether the action may be transferred to continue under Rule 76 is, by necessity, tethered to the existence of the defendants’ jury notice.

[53] In seeking to strike the jury notice, the plaintiff did not discharge the onus of proving that the interest of justice favoured a striking of the jury notice. Only general statements were made by counsel for the plaintiff about the impact of the COVID pandemic. There was no evidence before me from the plaintiff on the issue of prejudice or delay in getting to trial. In fact, the only affidavit filed was from the plaintiff’s lawyer. The record before me was perhaps hampered by the fact that the action was not yet set down for trial and therefore, no trial date was on the horizon. Since the action was not set down for trial at the time of the motion, the decisions relied upon by the plaintiff to strike the jury notice in the context of trial delay due to the COVID-19 pandemic have no applicability to the facts before me.

The Court concluded that the amendments did not take away the Defendants’ substantive right to a jury trial where the jury notice was delivered before January 1, 2020, even if the claim was amended to claim damages within the monetary limits under Rule 76. In the result, though the damages claimed by the Plaintiff were amended to comply with Rule 76, the existence of a jury notice foreclosed the matter being transferred to continue under Rule 76.

[34] Finally, in Andres v. Rasheid, 2022 ONSC 3317, the action was commenced on January 28, 2019, prior to the Rules amendment. The Statement of Defence and examinations for discovery were also complete before the amendment. Subsequent to the Rules amendment, approximately a year later, the Plaintiffs delivered a trial record. In May 2021, counsel requested a trial date with a jury and a trial date was fixed, on consent, to proceed in the jury sittings commencing in October 2022. A pretrial date was set for August 25, 2022. Counsel for the Plaintiff first raised the plan to move the action to the Simplified Rules and strike the jury notice on March 9, 2022. Wilson J. stated in part as follows:

[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.

[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.

[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.

[35] It is now July 2022. A 12-13 day trial is scheduled for November 2022. This trial cannot be fairly conducted in 5 days, even with the Simplified Procedure enforced. Even if the trial could be completed in this time, a shorter judge alone trial will not be heard any earlier. There is no reason to believe that this trial will not proceed in November as scheduled. The Defendant has prepared its case for 2.5 years on the anticipation that this will be a jury trial, including gathering significant surveillance. Similar to the court’s finding in Granville at para. 23, this court is of the view that “this motion has come far too late and is an attempt by the Plaintiff to shield himself from a possible adverse cost award in the Superior Court. I am not satisfied on the evidence that a transfer at this late stage would allow for the most just, expeditious and least expensive determination of the action.”

[36] Considerations of fairness must be applied to all parties to the litigation. Fairness dictates that this trial remain as scheduled.

[37] For all of the foregoing reasons, this motion is dismissed. The parties have advised this court that they have reached an agreement as to costs and, therefore, do not require the courts input on this issue.

Justice V. Christie

Date: July 12, 2022