COURT FILE NO.: CV-19-617588
DATE: February 2, 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mark Couper and Impetus Marketing Corp. v. Adair Barristers LLP, Adair Goldblatt Bieber LLP and John Adair;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Mark Couper for himself and Impetus Marketing Corp. (“Impetus”);
Marc Kestenberg for Adair Barristers LLP, Adair Goldblatt Bieber LLP and John Adair;
HEARD: January 25, 2022.
REASONS FOR DECISION
[1] The plaintiffs bring this motion seeking an order compelling the defendants to deliver their answers to discovery undertakings in 30 days, granting the plaintiffs leave to move on the defendants discovery refusals after setting this action down for trial, granting the plaintiffs leave to amend their statement of claim and allowing them serve a late jury notice.
[2] By the time of the argument on January 25, 2022 the first issue was moot as the defendants agreed to deliver their undertaking answers by February 5, 2022. I will order that that be done in thirty days from January 25, 2022. The amendment issue was reduced to the defendants’ insistence that any such amendment be on condition that such an amendment not recreate an entitlement to serve a jury notice. The issues to be determined are whether to grant leave to deliver a late jury notice and whether to grant the plaintiffs leave to move on the defendants’ refusals after setting the action down for trial.
[3] This action concerns allegations of lawyer’s negligence in the conduct of previous action where the lawyer represented Mr. Couper. In particular, the allegations are that the lawyer did not properly prosecute the lengthy trial in that case. Mr. Couper did not achieve the result in that case he wanted, and he was unsuccessful in an assessment he initiated concerning the lawyer’s costs.
Jury Notice
[4] Under Rule 47.01 (1) a jury notice must be delivered before the closing of pleadings. In this case, the action was commenced on April 5, 2019. The plaintiffs delivered their reply on June 10, 2019, thereby closing pleadings. They purported to serve a jury notice almost 2 ½ years later on November 16, 2021.
[5] This deadline can be extended. The test to be met is whether there has been unconscionable delay and whether the defendants will be prejudiced by the late jury notice; see Nikore et al. v. Proper et al., 2010 ONSC 2307, paragraph 21.
[6] The first test is whether there has been unconscionable delay. Two major considerations in this regard are the length of the delay and whether there has been inadvertence in failing to serve the jury notice; see Nikore, op. cit., paragraph 27.
[7] In this motion, there is evidence of a lengthy delay. The jury notice should have been served by June, 2019 when pleadings closed. Associate Justice Short became case manager of this case in September, 2020. He is now retired. On November 16, 2020 he imposed a timetable that included deadlines for production and discovery. By the end of March, 2021 all productions were done. By June, 2021 all discoveries were done. Mr. Couper purported to serve the jury notice five months later on November 16, 2021, 2 ½ months before the Short timetable required that this action be set down for trial (by January 31, 2022) and almost 2 ½ years after the pleadings closed.
[8] What was the explanation for this delay? Mr. Couper alleges he “always” intended to have the trial in this case by jury, and that his ignorance of the law caused him not to serve the jury notice in a timely way.
[9] I do not accept that assertion based on the evidence. Mr. Couper is indeed not a lawyer and is representing himself. However, he is a sophisticated person with knowledge of the law. At discovery in this case, he admitted this knowledge. He said he “had lots of activity with law, with the action with documents, with motions, preparing for this, that whatever.” During the previous lawsuit he said he spent 80 percent of his time in legal matters. At the hearing to oppose the confirmation of the assessment order, Mr. Couper relied upon the fact that he was self-represented. This was rejected by Justice Koehnen. This is what His Honour stated:
While Mr. Couper underscored before me that he was a self-represented litigant at the assessment (as he was on the hearing before me) and should not be held to the standard one might apply to a lawyer when deciding whether to hold them to commitments they have made. Mr. Couper is a sophisticated individual. He has an MBA, created the company that is the subject of the litigation in respect of which he retained Mr. Adair, grew the company successfully and took it public. He is articulate and highly intelligent.
[10] What is most compelling on this issue is what happened at discoveries. Mr. Couper was discovered for two days between May and June, 2021. This was now two years after the action commenced. During this discovery Mr. Kestenberg on several occasions mentioned that an issue under discussion would eventually be taken to the trial judge. At no time did Mr. Couper respond that he “always” intended to have a jury hear the trial, as he now alleges. Before me Mr. Couper said that he did not raise the issue at discovery because he was not asked about it. Why would Mr. Kestenberg ask about the issue since Mr. Couper had not served a jury notice? At discovery Mr. Couper should have at least clarified his position on the jury trial if he indeed intended to have a jury trial as he now asserts. He did not.
[11] There are other points. I note that, despite sending Mr. Kestenberg over 360 emails since May 14, 2019, Mr. Couper never once mentioned in these emails his alleged intention to have a jury hear the trial. Furthermore, in argument, Mr. Couper suddenly asserted that he in fact believed all along that he could choose a jury when he filed the trial record. This contradicts the evidence, as Mr. Couper purported to serve a jury notice on November 16, 2021 without a trial record.
[12] I, therefore, find that this delay was inordinately long and not inadvertent. Mr. Couper just changed his mind. The delay, therefore, is unconscionable.
[13] The second test to be met is whether the defendants will be prejudiced by the requested late jury notice. The defendants assert two forms of serious prejudice they say they will suffer.
[14] First they say that they fashioned their strategy in this litigation to date, and particularly at examinations for discovery, on having a trial by judge and not by jury. The underlying action which is the subject matter of this action lasted 11 years and involved a four-week trial before a judge, many motions, an appeal, a cross-appeal, and enforcement actions in New Jersey. The statement of claim in the case at bar is 42 pages long with numerous allegations. The parties have produced over 8,000 documents.
[15] The evidence shows that the defendants made strategic decisions at the two days of discovery of Mr. Couper that were based on what the trial judge would find important. For instance, Mr. Kestenberg showed me that he did not ask Mr. Couper about Mr. Adair’s alleged acts of fraud and misrepresentation, his alleged breaches of the Solicitors Act, his strategy and effectiveness in cross-examining witnesses at the trial, his actions in enforcing the judgment, his decision to get off the record, and the role Mr. Adair’s father had in the litigation. He showed that these decisions were made because of the core theory he planned to present to the trial judge, namely that the allegations presented by Mr. Cooper would not have changed the outcome of the case. He argued that a jury trial would have required a “no stones left unturned” approach to the discoveries, an approach that was not followed.
[16] There is well established authority for the proposition that completion of discovery like this represents a prejudice that will defeat a request to subsequently serve a jury notice. In Rodic v. Centre for Addiction and Mental Health, [2001] O. J. No. 2000, Master MacLeod as he then was held that a party cannot lull the opposite party into a belief that there will be a non-jury trial and then suddenly change those rules. He said that the jury trials are lengthy, expensive and require a different approach to the evidence and advocacy. He said in paragraph 8 that, “it is for this reason that discovery has been seen as a watershed and a review of the case law demonstrates that jury notices served after discovery have almost universally been struck on the basis of unconscionable delay or severe prejudice.” This view has been echoed in other decisions; see Markarkis v. Conklin, [2007] O. J. No. 5267 at paragraph 8 and Mahadeo v. Blue Cross Insurance Co., 2008 CanLII 68097(ONSC) paragraph 20.
[17] Mr. Couper argued that the completion of the discovery should not create a presumption of prejudice to the defendants. He pointed to the decision of the Divisional Court in the Nikore decision. In paragraph 28, the Court held that “there is no presumption of prejudice” by the completion of discovery. It is always a matter of the evidence. The Court in the same paragraph held that the party claiming prejudice must establish the nature and extent of the prejudice.
[18] I do not find a presumption of prejudice because of the completion of discoveries in this case. I find though that the defendants have established on the evidence that they will be severely prejudiced by a jury notice on account of the approach they took to the two days of discovery of Mr. Couper. At minimum, the proposed jury notice will require that the defendants have the chance totally to reconsider their strategy and redo these discoveries to properly prepare for a jury trial. They will have to reconsider their case theory. They may need more time than was originally used. This means that the case will not be able to be set down for trial for some time, contrary to the Short timetable. In argument, Mr. Cooper suddenly volunteered to be discovered further “for three hours.” This seems totally inadequate and indeed disingenuous.
[19] This leads to the second form of claimed prejudice by the defendants. Due to the COVID-19 pandemic the timing a jury trial is quite uncertain. During this pandemic jury trials have been consistently postponed. In Louis v. Poitras, 2020 ONCA 815 the Court of Appeal overturned a Divisional Court decision overturning a decision to strike a jury notice. The original decision had been based on the delays to jury trials caused by the pandemic. The Court of Appeal found in paragraph 33 that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” In Higashi v. Chiarot, 2020 ONSC 5523 Justice Roger held that “this state of not knowing [about jury trials due to the pandemic] favours a trial by judge alone, at this point in time.”
[20] I take judicial notice that pandemic continues and brings with it the continued uncertainty of holding jury trials. What this means is that, not only would the jury notice mean an inevitable delay in setting the case down for trial, the timing of the trial itself would become quite uncertain. This uncertainty raises a prejudice that has been recognized by the Court of Appeal as justifying striking a jury notice.
[21] For these reasons, I have decided to deny the requested leave to deliver the late jury notice.
Leave to bring motions after setting case down for trial
[22] The test under Rule 48.04 for leave to bring refusals motions after a party sets the action down for trial is that there must be evidence of a substantial or unexpected change in circumstances such that a refusal to grant leave would be unjust; see Denis v. Lalonde, 2016 ONSC 5960 at paragraph 23.
[23] Mr. Couper wants to abide by Associate Justice Short’s timetable and set the action down for trial by January 31, 2022, but then wants to bring motions for refusals and other discovery relief. The evidence on this motion shows that both parties did not comply strictly with the Short timetable. Mr. Couper examined the defendants on May 18, 19 and 20, 2022 and not during the week of April 26, 2021 as ordered. The defendants examined Mr. Couper on May 26 and 27, 2021 and not between April 15 and May 15, 2021 as ordered. Mr. Couper answered his undertakings on December 14, 2021 and not by August 31, 2021 as ordered. The defendants have yet to answer their undertakings. This is not “a substantial and unexpected change of circumstances” that justifies granting leave under Rule 48.04. What this means is that both parties have not complied with the timetable and that, because Mr. Couper wants to bring discovery related motions, the case is not ready to be set down for trial.
[24] I have decided to change the set down deadline to June 30, 2022. This should be enough time for Mr. Couper to bring any discovery related motions he wants to bring.
Amendment motion
[25] Because of my ruling on the jury notice, I must add a ruling about the amendment motion. I grant leave to the plaintiff to amend his pleadings as requested but on condition that this does not reopen the pleadings for the purpose of allowing Mr. Couper to serve a jury notice.
Conclusion
[26] In conclusion, I make the following orders:
• The plaintiff is denied leave to deliver a late jury notice;
• The plaintiff is granted leave to amend his statement of claim on condition that this does not reopen the pleadings for the purpose of allowing Mr. Couper to serve a jury notice;
• The defendants must deliver their answers to undertakings on or before February 24, 2022;
• The set down deadline is amended to be June 30, 2022.
[27] I remind Mr. Couper that it is improper to communicate with the court without copying the opposing side’s lawyer. This has apparently been a problem in this case.
[28] As to costs, Mr. Couper filed a bill of costs which showed three figures for costs: $1,726.28, $3,406.28 and $4,856.28. Mr. Kestenberg filed a costs outline that shows $9,837.10 in partial indemnity costs and $13,414.23 in substantial indemnity costs. If the parties cannot agree as to costs, the defendants must serve and file written submissions on costs of no more than two pages on or before February 9, 2022. Mr. Couper must then serve and file written submissions on costs of no more than two pages on or before February 16, 2022. Any reply written submission on costs of no more than one page must be delivered on or before February 18, 2022.
DATE: February 2, 2022 _____________________________
ASSOCIATE JUSTICE C. WIEBE