Court File and Parties

COURT FILE NO.: CV-18-605869

MOTION HEARD: 20220124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Milne, Plaintiff

AND:

RBC Life Insurance Company, Defendant

BEFORE: Associate Justice L. La Horey

COUNSEL: Joseph Hogan, Counsel for the Moving Party Defendant

Lisette LeBlanc, Counsel for the Responding Party Plaintiff

HEARD: January 24, 2022 by videoconference

ENDORSEMENT

[1] The defendant brings this motion for leave to file a jury notice.

[2] The notice of motion also asks for an order validating service of the jury notice served on April 15, 2021 or extending the time to serve the jury notice. However, that request for relief was abandoned at the hearing. The moving party does not dispute that the jury notice delivered on April 15, 2021 was out of time, whether or not pleadings were reopened by the service of a further copy of the reply and defence to counterclaim on March 29, 2021. There is no dispute that the defendant requires leave to deliver a jury notice.

[3] For the reasons that follow, I grant the defendant leave to deliver a jury notice.

Background and Chronology

[4] The statement of claim in this matter was issued on September 26, 2018. The plaintiff sues the defendant insurer for payment under a disability income policy. The statement of defence and counterclaim was served on April 9, 2019. Discoveries took place in August 2019.

[5] A mediation was held on February 20, 2020. The defendant has filed the affidavit of the lawyer with carriage of the matter (the “Lawyer”), not counsel on the motion. In his affidavit, the Lawyer deposes that he was instructed by his client at the mediation to bring a motion for leave for late service of a jury notice. However, through inadvertence, the Lawyer did not bring the motion.

[6] In November 2020, the plaintiff delivered what it called “Trial Record documents” which included a reply and defence to counterclaim not previously served, as well as a trial record.

[7] The Lawyer deposes that on January 12, 2021, he realized that he had not brought a motion for leave to file a jury notice. On that day, he wrote to the plaintiff’s lawyer and asked for consent to late delivery of the jury notice. Plaintiff’s counsel responded by email a week later refusing consent.

[8] There was a brief period from February 25, 2021 to March 1, 2021 when the defendant took no steps to advance the motion because it was waiting on a decision to be released in a case involving a motion to strike a jury notice because of the pandemic.

[9] On March 29, 2021, the plaintiff emailed another copy of the reply and defence to counterclaim and served the final version of the trial record on April 6, 2021. It appears that the plaintiff re-served the reply and defence to counterclaim because the affidavit of service in respect of service of the pleading in November 2020 could not be located.

[10] On April 15, 2021, the defendant served a jury notice, but the court would not accept it for filing.

[11] The Lawyer deposes that he was busy preparing for and attending a trial from the end of April 2021 to the end of May 2021 and inadvertently overlooked bringing a motion to validate service of the jury notice. As explained earlier, the defendant is not seeking an order to validate service of the jury notice served on April 15, 2021 and concedes that it must bring a motion for leave. The defendant agreed that even if the delivery of the reply and defence to counterclaim on March 29, 2021 had “reopened pleadings”, the delivery of the jury notice on April 15, 2021 was still out of time and leave was required.

[12] Plaintiff’s counsel wrote to the Lawyer in August and September 2021, seeking assistance in completing the documents required to be provided to the trial co-ordinator but did not receive a response. The Lawyer deposed that the failure to respond was as a result of inadvertence. The plaintiff’s lawyer wrote to the trial co-ordinator on November 12, 2022 asking for the assistance of the court in setting a trial date and pre-trial date. On November 16, 2021, the plaintiff’s lawyer asked the court to schedule a trial date in September 2022.

[13] On November 17, 2021, the defendant served a draft notice of motion seeking validation of service of the jury notice or extending the time for service.

[14] On November 22, 2021, Justice Wilson scheduled a judge alone trial commencing on November 7, 2022 with a pre-trial conference of August 24, 2022. The plaintiff agreed to the November 7, 2022 trial date. Justice Wilson indicated that the motion for leave to file the jury notice should be dealt with in advance of that time and that at that time jury trials were still being scheduled in October 2022.

[15] The defendant requested that this motion be scheduled on an urgent basis and filed the notice of motion on December 3, 2021.

[16] The plaintiffs’ motion record and factum do not raise the issue of a potential delay in obtaining a date for a jury trial due to the COVID-19 pandemic. At the hearing of this matter I raised the issue with the parties. I referred to the recent Notice to the Profession dated January 19, 2022 issued by the Chief Justice advising that the court would not be commencing any new jury selection in any court location until February 28, 2022. I was concerned about the impact on dates for jury trials. With the concurrence of the parties, I contacted the trial co-ordinator’s office to enquire about available dates for jury trials. I was told that the court in Toronto is presently booking jury trials of 13 – 15 days duration commencing the week of January 16, 2023. I was also advised that the first available date for 6 to 10 day jury trials is December 5, 2022. After that, there are dates commencing in January 2023. The matter is currently booked for 9 days without a jury. The parties disagree as to whether the matter could be tried in 10 days or less with a jury. However, the difference is not material. Even if a jury trial will take more than the 9 days set for the judge alone trial, dates can be obtained in January 2023, i.e. one month after a 6 to 10 day trial.

Law and Analysis

[17] In Proper v Nikore, the Divisional Court held that there are two key factors to be taken into consideration in determining whether to permit the service of a jury notice after the close of pleadings: (1) the circumstances of the delay; and (2) whether there is prejudice to the other side (2010 ONSC 2307 (Div Ct) at paragraph 26). The court went on to expand on those two factors as follows:

[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.

[28] There is no presumption of prejudice. However, logical inferences may be drawn in appropriate cases. The closer the action is to trial, the more likely it will be that prejudice is inferred. For example, by the week before trial, counsel will likely have prepared witnesses and exhibits based on presentation to a judge alone. Preparation for a jury trial has substantial differences. A motion judge might well take that into account even in the absence of specific evidence. Similarly, if the effect of the jury notice will be to delay the trial, prejudice to the other party can be inferred. However, in many cases, prejudice will not be apparent without some evidence from the party alleging it. I appreciate that this may present some difficulties, or perhaps awkwardness, where the prejudice arises from the choice of which witnesses to call or other tactical decisions, such as whether to undertake surveillance of a plaintiff. In those situations, some allowances must be made for a certain degree of vagueness in the affidavit material. The party seeking the indulgence cannot be permitted to gain an advantage by cross-examining opposing counsel on issues of trial tactics or matters of solicitor and client privilege. However, the party claiming prejudice must at least assert the existence and general nature of the prejudice.

[18] In Proper v Nikore the court also notes that: “As a starting point, it must be recognized that the right to a trial by jury is an important right and one that will not be denied without cogent reason." (paragraph 19).

[19] More recently, the Ontario Court of Appeal has stated in the context of a motion to strike a jury notice: “Although the right to a civil jury trial is a substantive right, it is a qualified, not absolute, right, and is subject to removal where justice to the parties will be better served by the discharge of the jury. As this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial.” (Belton v Spencer, 2020 ONCA 623 at para 54).

Delay

[20] The defendant asserts that there is no unconscionable delay and that the delay has been explained by the successive instances of inadvertence on the part of the Lawyer from February 2020 to November 2021. There is no information as to the delay between the date of the delivery of the statement of defence and counterclaim in April 2019 and February 2020 when defence counsel was instructed to deliver a jury notice.

[21] The defendant relies on a number of cases where courts have permitted late service of a jury notice even when the delay is considerable. For example, in Cipparone v Royal and Sunalliance Insurance Co. of Canada (2010 ONSC 4528) Justice Ramsay allowed the late delivery of a jury notice one month before trial where the motion was not brought until five years after the close of pleadings when new counsel was appointed. The court noted that the delay was not intentional or tactical and was held not to be unconscionable.

[22] The plaintiff takes the position that the delay is unconscionable. He submits that the number of delays and missed opportunities for late service by the defendant “amounts to more than inadvertent delays”. In essence, the plaintiff argues that successive instances of inadvertence on the part of the Lawyer to bring the motion at various stages amounts to an unconscionable delay. Having discovered the error, it behooved the Lawyer to take steps to promptly rectify the error by bringing on the motion promptly.

[23] I do not accept the plaintiff’s position. I do not find the unexplained delay from April 9, 2019 (when pleadings were closed) to February 2020 to be unconscionable. While it is unfortunate, the delay from February 2020 to when the motion was finally brought is also not unconscionable. A determination of unconscionability ought to be considered in the context of the defendant’s substantive right to a jury trial. There is no suggestion that the failure to bring the motion was tactical or strategic.

[24] The plaintiff relies on Mahadeo v Blue Cross Life Insurance Life Co. of Canada (2019 ONSC 6611) where the court refused leave to file a late jury notice after trial scheduling court had taken place. However, a review of the facts as set out in the decision suggests that no reason for the delay was provided to the court (see paragraphs 7, 20). In particular, it does not appear that the moving party gave inadvertence as a reason for failing to bring on the motion sooner.

Prejudice

[25] The defendant submits that the plaintiff has not provided any evidence that the late delivery of a jury notice will cause any prejudice.

[26] Plaintiff’s counsel points to the fact that the plaintiff is 70 years old, has received no income replacement payments from the defendant for three and a half years and that the extra expense and length of a trial will cause significant prejudice to the plaintiff. However, as is made clear from Proper, the fact that a jury trial may be longer and more costly is not prejudice that arises from the delay (paragraph 32).

[27] The plaintiff also argues that he will be prejudiced since a jury trial is tactically beneficial to the defendant. Whether or not this is true, it is not prejudice that arises from the delay.

[28] Ms. LeBlanc argued that if the jury notice had been served earlier, the plaintiff would have conducted the case differently, including by hiring counsel specializing in jury trials. However no evidence was tendered to this effect.

[29] In Proper, the court stated that a logical inference of prejudice may be drawn in appropriate cases, even absent evidence of prejudice (paragraph 28). The closer the action is to trial, the more likely it will be that prejudice is inferred. The court used the example of one week before trial as in that case, counsel will likely have prepared witnesses and exhibits on the basis of a presentation to a judge alone. Given that the trial is many months away, I do not draw an inference of prejudice.

[30] At the hearing, Ms. LeBlanc argued prejudice arising from the potential delay if it is necessary to select a new trial date with a jury. However, as noted above, the plaintiff did not raise this issue in his factum. This was a concern that I raised at the start of the hearing given the latest developments in respect of the pandemic. After some investigation, it appears that the delay will only be a few months. This delay of a few months may be offset by the fact that with a jury trial there is no chance of a reserved judgment (Cipparone at paragraph 11). As the plaintiff did not raise this as a ground in the first instance, I am not prepared to find that the delay of a few months to be prejudicial.

[31] I conclude that the late filing of the jury notice will not cause any prejudice to the plaintiff.

Conclusion and Costs

[32] The defendant’s motion is granted. The defendant may file the jury notice within two weeks of the release of this decision.

[33] At the hearing, counsel for the defendant advised that they were not seeking costs if its motion was successful. Indeed, as the motion for leave was required in any event, and as the moving party is asking for indulgence, an order of no costs is an appropriate disposition.

L. La Horey, A.J.

Date: January 28, 2022