Court File and Parties
COURT FILE NO.: CV-17-584399
DATE: 20220902
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Inez Rowe, Plaintiff
-and-
1225064 Ontario Limited o/a Four Season Maintenance Service, Defendant
BEFORE: Robert Centa J.
COUNSEL: Gerald Sternberg, for the plaintiff Andrew Laviolette and Leanne C. Strobel, for the defendant
HEARD: August 25, 2022
ENDORSEMENT
[1] On January 6, 2015, the plaintiff, Inez Rowe, slipped and fell in the parking lot of her neighbourhood No Frills grocery store. She briefly lost consciousness, went to the hospital, was discharged about four hours later, and returned home. On January 5, 2017, two years less a day from the incident, she issued a statement of claim naming the store as the only defendant.
[2] On October 13, 2017, she issued a second claim about her fall, which named 1225064 Ontario Limited, operating as Four Season Maintenance Service, as the defendant. Four Season provided snow removal services in the No Frills parking lot where Ms. Rowe fell. Ms. Rowe claimed $100,000 in damages for Four Season’s negligence in clearing the snow and ice from the parking lot.
[3] Four Season brings this motion for summary judgment asking the court to dismiss Ms. Rowe’s action. It submits that there is no genuine issue requiring a trial, that Ms. Rowe commenced her action more than two years after she discovered the claim, and that the claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.[^1]
[4] Ms. Rowe submits that she did not discover the claim against Four Season until June 29, 2017, and that the limitation period only started to run at that time. Her claim, therefore, was commenced in plenty of time and should be permitted to continue to trial. Ms. Rowe asks the court to dismiss Four Season’s motion for summary judgment.
[5] For the following reasons, I find that there is no genuine issue requiring a trial. I find that Ms. Rowe discovered her claim on January 6, 2015, or, in the alternative, that a reasonable person with the abilities and in the circumstances of Ms. Rowe would have discovered the claim no later than July 6, 2015. The plaintiff’s action, which she commenced on October 13, 2017, is statute barred. I grant the motion for summary judgment and dismiss the action.
Summary judgment
[6] Summary judgment is an important tool for enhancing access to justice where it provides a fair process that results in a just adjudication of disputes: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4-7. Used properly, it can achieve proportionate, timely, and cost-effective adjudication.
[7] The test for summary judgment in an action brought under the simplified procedure provided in Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is governed by Rule 20: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 253.
[8] The Court of Appeal for Ontario described the correct approach on a motion for summary judgment in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 24. I am to:
a. determine if there is a genuine issue requiring a trial based only on the evidence before me, without using the enhanced fact-finding powers under rule 20.04(2.1);
b. if there appears to be a genuine issue requiring a trial, determine if the need for a trial could be avoided by using the enhanced powers under
i. rule 20.04(2.1), which allow me to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence; and
ii. under rule 20.04(2.2), which allows me to order that oral evidence be presented by one or more parties.
[9] In para. 66 of Hryniak, the Supreme Court emphasized that I must focus on whether the evidence before me permits a fair and just adjudication of the dispute and cautioned that judges should not use the enhanced powers where their use would be against the interests of justice:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[10] On a motion for summary judgment, the court assumes that the parties have each advanced their best case and that the record contains all the evidence that would be led at trial. Each party is obliged to put their best foot forward on a motion for summary judgment. They are not permitted to sit back and suggest that they would call additional evidence at trial: Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, 30 B.L.R. (6th) 1, at para. 4; Ntakos Estate v. Ntakos, 2022 ONCA 301, 75 E.T.R. (4th) 167, at para. 38; Salvatore v. Tommasini, 2021 ONCA 691, at para. 17; Miaskowski v. Persaud, 2015 ONSC 1654, 51 R.P.R. (5th) 234, at para. 62, rev’d on other grounds, 2015 ONCA 758, 342 O.A.C. 167.
[11] I note that Ms. Rowe’s action against Four Season is independent of her action against Loblaws Companies Limited.[^2] The actions have not been joined or consolidated, even if the parties in the two actions have cooperated to see them proceed in an efficient manner. This is not a motion for partial summary judgment. Four Season’s motion for summary judgment, if successful, will finally and completely dispose of the action against it. I do not think the restrictions on granting partial summary judgment apply in these circumstances: Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215; Vandenberg v. Wilken, 2019 ONCA 262, 433 D.L.R. (4th) 479, leave to appeal refused, [2019] S.C.C.A. No. 203; Mason v. Perras Mongenais, 2018 ONCA 978; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561.
[12] In her factum, Ms. Rowe sets out the test on a motion for summary judgment. She then submits that her action is not statute-barred based on the doctrine of discoverability. She does not, however, submit that this case should not be determined on a motion for summary judgment. Instead, she submits that she should succeed on the merits of the motion for summary judgment.
[13] In oral argument, counsel for Ms. Rowe submitted that because the defendant had delivered a jury notice, this matter should be left to the jury.[^3] I do not think that the outcome of a summary judgment motion depends on whether or not the action will be tried before a jury. The court must remain focussed on the text and purpose of Rule 20: is there a genuine issue requiring a trial? Counsel for the plaintiff did not identify any issue that required a trial.
[14] For the reasons set out below, I do not think there are any issues that require a trial. There are no issues of credibility raised in the record. I am satisfied that this is an appropriate case for summary judgment based on the record before me.
Limitations Act
[15] In Ontario, most actions, including this one, must be started on or before the second anniversary of the day on which the claim was discovered: Limitations Act, s. 4. Ms. Rowe issued her statement of claim against Four Season on October 13, 2017. Working backwards, Ms. Rowe’s claim is statute barred if she discovered it before October 13, 2015.
[16] Section 5 of the Limitations Act explains when a claim is discovered:
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[17] In this case, pursuant to s. 5(1), Ms. Rowe discovered her claim on the earlier of the date that:
a. Ms. Rowe knew of the matters referred to in s. 5(1)(a)(i) to (iv); or
b. a reasonable person with the abilities and in the circumstances of Ms. Rowe ought to have known of the matters referred to in s. 5(1)(a)(i) to (iv).
If either of these dates is before October 13, 2015, Ms. Rowe’s claim is statute barred: Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 20.
When did Ms. Rowe discover the claim?
[18] The first step is to assess Ms. Rowe’s subjective knowledge: when did she know the material facts underlying the claim? Pursuant to s. 5(2), Ms. Rowe is presumed to have known of the matters in s. 5(1)(a)(i) to (iv) on January 6, 2015 (the day she fell), unless she proves otherwise. Unless Ms. Rowe displaces the statutory presumption, the claim she commenced against Four Season on October 13, 2017, is statute barred.
Ms. Rowe did not file an affidavit in the motion for summary judgment
[19] For reasons that were not explained, Ms. Rowe did not file an affidavit on the motion for summary judgment. The only evidence that Ms. Rowe filed on the motion for summary judgment is an information and belief affidavit from Cindy Ruivo, the legal assistant to counsel for the plaintiff. Ms. Ruivo’s affidavit does not provide any evidence of when Ms. Rowe first knew about any of the matters in s. 5(1)(a)(i) to (iv). The only evidence in Ms. Ruivo’s affidavit about Ms. Rowe is as follows:
a. The plaintiff was injured in a parking lot adjacent to No Frills at Islington and Dixon on January 6, 2015;
b. Ms. Rowe provided information confirming the address of the parking lot to counsel in August 2016; and
c. Ms. Rowe answered a questionnaire from Ms. Gama-Pinto, the insurance adjuster for the defendant in the related action, on or about December 14, 2016 (but neither the questionnaire nor the answers to the questionnaire were put in evidence).
[20] A respondent on a summary judgment motion is required to put their best foot forward. Prism Resources Inc., at para. 4; Ntakos Estate, at para. 38; Salvatore, at para. 17; Miaskowski, at para. 62.
[21] The evidence of a plaintiff is crucial on a defendant’s motion for summary judgment on a limitation period. Absent direct evidence from the plaintiff, it is extremely difficult to rebut the statutory presumption. It is conceivable that, in an appropriate case, such information could be provided by another person on the basis of information and belief, but that is not the case here. Ms. Rowe has not rebutted the statutory presumption in s. 5(2) that she discovered her claim on January 6, 2015.
[22] In addition, rule 20.02 provides that I may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. Given the centrality of Ms. Rowe’s evidence about when she first knew about the matters in s. 5(1)(a)(i) to (iv), and in the absence of any explanation for Ms. Rowe failing to provide this evidence, I draw an adverse inference from the failure of Ms. Rowe to file an affidavit in response to the motion for summary judgment. I conclude that her evidence would not have supported her submissions that she did not discover her claim until well after the date of her injury.
[23] Based on the absence of an affidavit from Ms. Rowe, and because I draw an adverse inference from the absence of the affidavit, I find as a fact that Ms. Rowe has not displaced the statutory presumption under s. 5(2) that she discovered her claim against Four Season on January 6, 2015. She commenced her action against Four Season more than two years after she discovered the claim.
Ms. Rowe’s examination for discovery
[24] During oral submissions, counsel for the plaintiff referred to evidence from the transcript of Ms. Rowe’s examination for discovery. On a motion for summary judgment, rule 39.04(2) states that a party may not use in evidence the party’s own examination for discovery unless the other party consents: Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 50 O.R. (3d) 97 (C.A.), at para. 26. Counsel for Four Season confirmed that the defendant did not consent to the plaintiff’s use of her examination for discovery transcript.
[25] However, even if I considered the evidence from the examination for discovery, it does not assist the plaintiff. During her examination, Ms. Rowe gave the following evidence:
a. She had lived for 12 years at 236 Dixon Road, which was right across the street from the No Frills at 245 Dixon Road.
b. She walked the five minutes or so to the No Frills in the afternoon of January 6, 2015.
c. She fell in the parking lot of the No Frills in the part that was near the Esso station.
d. She was briefly rendered unconscious and when she regained consciousness, her mouth was full of blood, she was bleeding from the mouth and nose, she was missing one or two teeth.
e. A man helped her to get to the doctor’s office in the plaza. He called 911 for the ambulance, pointed out the spot where she fell, and told her “The black ice is over there, ma’am.”
f. Two or three days after the accident, she went to the Tim Hortons that is adjacent to the parking lot, looked at the parking lot, saw the ice in the parking lot and she thought that “they were crazy not to clean and salt it.” She testified that she was “mad with whoever cleaning” the parking lot.
g. In 2012, she slipped on some water at the casino at Woodbine, fell, and hurt her shoulder. She commenced an action as a result of the slip and fall at the casino and her present counsel represented her on that occasion. That action was resolved in 2014, to the best of her recollection.
[26] If I considered the transcript of the examination for discovery, I would make the following findings of fact about Ms. Rowe’s knowledge:
a. Ms. Rowe knew that she had suffered an injury on January 6, 2015: s. 5(1)(a)(i);
b. Ms. Rowe knew that her injury was caused or contributed to by an act or omission related to clearing of ice and snow on January 6, 2015. She knew this either when the man who helped her pointed out the “black ice” or, in any event, no later than January 9, 2015, when she visited the Tim Hortons, saw the condition of the parking lot, and became angry at the people responsible for clearing the ice and snow: s. 5(1)(a)(ii); and
c. Because of her other recent litigation experience, Ms. Rowe knew on January 6, 2015, or in any event no later than January 9, 2015, that having regard to the nature of the injury, a proceeding would be an appropriate means to seek to remedy it: s. 5(1)(a)(iv).
[27] That would leave only the question of when Ms. Rowe knew that the act or omission that caused her injury was caused by Four Season: s. 5(1)(a)(iii). Because of s. 5(2), Ms. Rowe is presumed to have known that Four Season caused her injury on January 6, 2015, unless she proves otherwise. There is no evidence in the examination for discovery or the record regarding when Ms. Rowe first knew that Four Season caused her injury.
[28] There is evidence in the record that the first time the insurance adjuster for the defendant in the companion action provided the name Four Season to counsel for the plaintiff was on June 29, 2017. Ms. Rowe would be attributed with that knowledge as of that date. That is not the same, however, as evidence of when Ms. Rowe first knew the identity of Four Season.
[29] Section 5 of the Limitations Act mandates an inquiry into what the person with the claim knew and when she first knew it. Section 5 does not ask when the lawyer for the person with the claim first knew the information. For example, Ms. Ruivo’s affidavit states that counsel “finally received information from [Ms. Rowe] regarding the address of the parking lot in or around August 2016.” That is not the first date on which Ms. Rowe knew the address of the parking lot. Ms. Rowe lived essentially across the street from the No Frills for 12 years, she went to that store all the time, and no more than three days after the fall she went back to the parking lot and identified exactly where she fell. I would have no hesitation finding that she first knew where she fell (and the address of her local grocery store that was essentially down the street from her apartment) on January 6, 2015, not August 2016, when her counsel states that he first learned that fact.
[30] Even if I considered the evidence on her examination for discovery, Ms. Rowe would not have displaced the statutory presumption under s. 5(2) that she knew that the act or omission that caused her injury was caused by Four Season on January 6, 2015: s. 5(1)(a)(iii).
[31] Ms. Rowe commenced this claim on October 13, 2017, which is more than two years after she discovered her claim against Four Season. The claim is statute barred. I grant summary judgment to the defendant and dismiss the action.
When ought a reasonable person in the circumstances of Ms. Rowe have discovered the claim?
[32] If I am wrong about when Ms. Rowe subjectively discovered her claim, I will now consider when a reasonable person with the abilities and in the circumstances of Ms. Rowe first ought to have knowledge of the matters in s. 5(1)(a)(i) to (iv). At this stage, the due diligence of the plaintiff is one factor that a court may take into consideration, however, the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 29; Fennell, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35, at para. 23
[33] By no later than January 9, 2015, Ms. Rowe knew that she had fallen and injured herself in an ice-covered parking lot of her local No Frills. She had concluded that “they were crazy not to clean and salt” the parking lot. She knew that she was “mad with whoever [was] cleaning” the parking lot and she knew that starting a lawsuit was an appropriate way to recover money after a slip and fall.
[34] It seems to me that a reasonable person in these circumstances, one who was “mad with whoever [was] cleaning” the parking lot would have had one key question: who was responsible for cleaning the parking lot?
[35] In Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 42, the Court of Appeal emphasized that a limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate their claim:
A plaintiff is required to act with due diligence in determining if [she] has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case.
[36] I accept the plaintiff’s submission that there is no general rule that the mere existence of hazardous snow and ice is sufficient in all circumstances to require a plaintiff to ask a tortfeasor whether there was a private contractor involved in snow removal: Ali v. City of Toronto, 2021 ONSC 5867, at paras. 18-19; Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, 101 O.R. (3d) 553 at para. 15. The court must, instead, consider what a reasonable person would have done in the specific circumstances of the case. For example, the Divisional Court in Ali, at para. 5 held as follows:
Where a property is obviously under the control of a large business – such as a downtown office-building or a shopping mall, it may be fair to conclude, as a matter of common sense and knowledge, that a private contractor may well have been hired to clear snow and ice.
[37] In this case, Ms. Rowe fell on the ice and snow in the parking lot of her local No Frills. Grocery stores, unlike municipalities, are not in the primary business of clearing snow. In my view, the Divisional Court’s analysis in Ali applies to the parking lot at the No Frills store where Ms. Rowe fell. This is a sufficient trigger to put a reasonable person on notice to inquire into the existence of a snow removal contractor as a potential defendant: Ali at para. 16; Laurent-Hippolyte v. Blasse et al., 2018 ONSC 940, paras. 27 to 31; Cote v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588, at para. 35. I find that a reasonable person in these circumstances would ask the store who was responsible for plowing and shovelling the parking lot and whether or not a private contractor, like Four Season, had been hired.
[38] I find that a reasonable person with the abilities of Ms. Rowe and in the circumstances of this case would have immediately retained counsel. This is particularly true where, as here, the person had prior experience as a slip-and-fall plaintiff and knew a lawyer who could help her navigate the proceeding. A reasonable person would have instructed counsel to make inquiries about the identities of the proper and necessary parties: Miaskowski, at paras. 74 to 77. This would have involved asking a short series of questions. Who occupied the premises? Is there a property manager? Who was responsible for plowing and shovelling the parking lot?
[39] Taking all of this into account, I find that a reasonable person would have discovered the claim within six months, or no later than July 6, 2015.
[40] I also find that there is no evidence that Ms. Rowe or her lawyer were reasonably diligent. There is no evidence to explain why they were unable to identify the potential defendants to the slip and fall action. In her affidavit, Ms. Ruivo describes all of the steps taken to investigate the potential defendants within the two years from the date of the fall:
The Plaintiff was injured in a parking lot adjacent to No Frills at Islington and Dixon on January 6, 2015.
A notice letter was sent out to the City of Toronto in June 2015 to determine if they were the occupiers of the parking lot.
We had difficulty getting a hold of our client and finally received information from her confirming the address of the parking lot in or around August 2016.
On August 12, 2016, we wrote to No Frills at 245 Dixon Road putting them on Notice of Ms. Rowe's injuries. Attached and marked Exhibit A is a copy of the Notice letter.
On August 23, 2016, we received an email from Patricia Gama Pinto, indicating that Zurich was the liability insurer for Choice Property Reit and enclosed a questionnaire for Ms. Rowe to complete, in order for Ms. Gama-Pinto to begin her investigation. Attached and marked Exhibit B is a copy of the email.
7 The questionnaire was sent to Ms. Rowe to complete on September 13, 2016.
- We received the completed questionnaire from Ms. Rowe just prior to December 14, 2016, and emailed it to Ms. Gama-Pinto on December 14, 2016. Attached and marked Exhibit C is a copy of the said email. We heard nothing back from Ms. Gama-Pinto and issued our claim on January 5, 2017, naming Loblaws Company Limited c.o.b. as Emiliano and Ana's No Frills. The said claim was served on the Defendant on January 23, 2017.
[41] The first letter sent to the No Frills store on August 12, 2016, over 17 months after the fall, simply stated “I am the solicitor for the above named who slipped and fell on ice in your parking lot on January 6, 2015, sustaining serious injuries. We are holding you responsible for the injuries and put you on Notice of our claim for pre-judgment interest. Please have your insurer contact me.” The letter does not ask the store whether a contractor was responsible for the “ice in your parking lot.” There is no evidence that the plaintiff or her lawyer ever asked this question before she issued the claim against the store on January 5, 2017, one day before the expiration of the limitation period. There is no evidence that Ms. Rowe took any further reasonable steps to learn the identity of any potential defendants before January 5, 2017.
[42] There is nothing wrong with Ms. Rowe answering the questionnaire from the insurance adjuster, but that is no substitute for her taking reasonable steps to investigate her own claim. It is insufficient to rely entirely on the adjuster’s investigation.
[43] This is not a case where the main defendant took steps to hide other potential defendants. This is not a case like Taylor v. Mayes, 2021 ONSC 2239, aff’d 2022 ONCA 297, where the main defendant failed to mention an independent snow removal contractor in its statement of defence and then refused to make a representative available for examination for discovery. This is not a case like Galota, at para. 36, where the plaintiff could not have known until discoveries that the defendant had renovated the dance club before opening, that the renovations did not comply with the Building Code, and that the proposed defendant had been involved in the renovations.
[44] In this case, the adjuster was very responsive to questions asked by counsel for the plaintiff. In August 2016, less than two weeks after the initial letter from counsel for the plaintiff, Ms. Gama-Pinto provided the correct name of the defendant, Choice Properties REIT. On January 23, 2017, shortly after being served with the statement of claim, the adjuster confirmed that the plaintiff had named the wrong defendant and, without having been asked, volunteered the name of the snow removal contractor. Although Ms. Gama-Pinto named the wrong contractor, it would have been far easier to correct that misnomer had a claim been issued against the wrong party within the limitation period: rule 5.04(2); s. 21(1). In any event, after counsel for the plaintiff contacted the adjuster (four months later) to suggest that she had provided the wrong company, she corrected the information within six days.
[45] I see no evidence in the record that Choice Properties REIT attempted to hide the identity of the snow contracting company.
[46] I do not find any of the correspondence between counsel for the plaintiff and counsel for the defendant after June 29, 2017, to be relevant to the question of the discoverability of the claim. Whether or not Four Season owed Choice Properties REIT a duty to defend the claim, or to indemnify it for claims related to snow services, whether or not Choice Properties REIT did or did not wish to commence a third-party claim against Four Season, are all irrelevant to the discoverability of the plaintiff’s claim against Four Season.
[47] In my view a reasonable person acting with due diligence would have identified the existence of and the correct name of the snow contractor by July 6, 2015. Ms. Rowe’s action is also statute barred on this analysis.
Conclusion
[48] For the reasons set out above, I conclude that there is no genuine issue requiring a trial. The action the plaintiff commenced October 13, 2017, is statute barred against Four Season because:
a. Ms. Rowe discovered her claim on January 6, 2015;
b. In the alternative, a reasonable person with the abilities and in the circumstances of Ms. Rowe would have discovered the claim no later than July 6, 2015.
[49] I grant summary judgment in favour of Four Season, and I dismiss the plaintiff’s action.
[50] If the parties are not able to resolve costs, the defendant may deliver a costs submission of no more than three double-spaced pages to be emailed to my judicial assistant on or before September 9, 2022. The plaintiff may file responding submissions of no more than three double-spaced pages on or before September 16, 2022. No reply submissions are to be filed without leave.
Robert Centa J.
Date: September 2, 2022
[^1]: All references in this endorsement to sections of an Act are references to the Limitations Act unless I specify otherwise.
[^2]: It appears that the parties in the companion action agree that the correct defendant is Choice Properties REIT. It is not clear whether or not the statement of claim has been formally amended at this time but that does not affect the disposition of this motion.
[^3]: Except in very limited circumstances, jury trials are no longer available in actions under the simplified procedure in Rule 76: rule 76.02.1. However, rule 76.02.1 does not apply to this action because the defendant delivered its jury notice on June 11, 2019: rule 76.14.