BARRIE COURT FILE NOS.: CV-14-1193 and CV-14-1299
DATE: 2023-09-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lynn Byard, Plaintiff AND: Benjamin Jamialahmachi and Nahid Jamialahmachi, Defendants
AND:
RE: Lynn Byard, Plaintiff AND: Cory Reid, Defendant
BEFORE: The Honourable Madam Justice A.A. Casullo
COUNSEL: M. Blois, for the Plaintiff D. Stuckless, for the Defendant Reid A. Franklin, for the Defendants Jamialahmachi
HEARD: August 22, 2023
REASONS FOR DECISION ON MOTION TO STRIKE JURY NOTICES
[1] The Plaintiff commenced proceedings for injuries she alleges she sustained in two separate motor vehicle collisions.
[2] The Defendant in each action served jury notices.
[3] On February 28, 2017, the two actions were scheduled to be tried together.
[4] On April 27, 2023, at trial scheduling court, the two actions were set for trial during the Central East Region spring 2024 sittings.
[5] The Plaintiff seeks the following relief by way of today's motion:
a) leave to bring her motion; and
b) an order striking the jury notices served by the Defendants.
[6] The Defendants oppose the relief sought.
Issue One – Should Leave Be Granted?
[7] On July 17, 2017 the Plaintiff set both actions down by serving a Notice of Readiness for Pre-trial Conference.
[8] On February 4, 2019 a pre-trial was held.
[9] On February 28, 2019, at trial scheduling court, a three-week jury trial was set for the May 2020 trial sittings.
[10] The trial did not proceed given the advent of the COVID-19 pandemic.
[11] On February 22, 2021, Plaintiff's counsel advised he would be bringing a motion to strike the jury notices in light of the continued delay in obtaining a jury trial occasioned by the pandemic.
[12] No motion to strike was initiated in 2021.
[13] Over the course of 2022 counsel for the Reid Defendant wrote Plaintiff's counsel for updates on his efforts to have the matters restored to the trial list. Plaintiff's counsel replied to each letter in a timely manner, advising he was still attempting to get trial and pre-trial dates.
[14] On February 8, 2023, counsel for the Jamialahmachi Defendants reached out to Plaintiff's counsel asking that his office take steps to get the actions onto a trial list. Plaintiff's counsel thereafter advised that trial scheduling court was set for April 27, 2023.
[15] The court was advised that getting the actions back on track, and a date for trial scheduling court, was due to the efforts of the law clerk on the Reid action.
[16] Throughout 2022, and in the early months of 2023, the Plaintiff did not raise the issue of the motion to strike the jury notices in any correspondence to defence counsel.
[17] It was only at the trial scheduling appearance in April of 2023 that the issue of striking the jury notices was reignited. How the issue arose is unclear. I understood from counsel that it was the trial scheduling judge who first brought it up.
[18] However, Ms. Aria Nejatali, who swore the affidavit in support of the motion, indicates that the issue arose when the Plaintiff asked that the actions proceed without a jury in light of the amendments to r. 76, Rules of Civil Procedure, RRO 1990, Reg 194. The Defendants objected. Ms. Nejatali indicates that the trial scheduling court judge was not prepared to order the actions be tried by judge alone trial in the absence of a formal motion. Her Honour endorsed the record to reflect the fact that the Plaintiff would bring a motion to strike in 2023.
[19] Plaintiff's counsel advised during submissions that the trial scheduling Judge's comments concerning jury trials and the amendments to r. 76 was an "intervening act", such that once the court raised the subject, a decision was made to bring the motion forward. In light of Ms. Nejatali's affidavit this does not appear to be the case.
[20] Pursuant to r. 48.04(1), a party who has set an action down for trial may not initiate any motion without leave of the court.
[21] There are two lines of authority with respect to the proper test for granting leave to being a motion after an action has been set down for trial. As the Court of Appeal set out in Horani (Litigation guardian of) v. Manulife Financial Corp., 2023 ONCA 51, [2023] O.J. No. 338 at paras. 17-19:
Some courts have required the moving party to show a "substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust.": see Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 (Gen. Div.); for cases adopting Hill, see LML Investments Inc. v Choi (2007), 2007 CanLII 8926 (ON SC), 85 O.R. (3d) 351 (S.C.), at para. 10; Jetport v Jones Brown Inc., 2013 ONSC 2740, 115 O.R. (3d) 772, at paras. 68, 70 and 71; Lugen Corporation v Starbucks Coffee Canada Inc., 2014 ONSC 7141, at paras. 12, 30, 31; Denis v Lalonde, 2016 ONSC 5960, at para. 11; Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, at paras. 42-46.
Others have determined that leave be granted if the moving party can demonstrate that the "interlocutory step is necessary in the interests of justice" even in the absences of a substantial or unexpected change in circumstances: see, A.G.C. Mechanical Structural Security In. v. Rizzo, 2013 ONSC 1316, at paras. 21-23; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, 126, O.R. (3d) 154 (Mast.), at paras. 12, 14; Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, at para. 28; and Cromb v. Bouwmeester, 2014 ONSC 5318, at para. 35.
In yet other cases, courts have considered both tests and determined that they need not weigh in on the prevailing approach as the moving party could not meet the bar even under the "broader interests of justice" test: see for instance, Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950, at paras. 22-23; Chokler v. FCA Canada Inc., 2017 ONSC 4494, at para. 13.
[22] The case at bar is on all fours with the recent decision of R.M.R. Bell, J., in George v. Alemu, 2023 ONSC 3644, [2023] O.J. No. 2742. In George, Her Honour held that the plaintiff had not met the test for leave even under the broader "interests of justice" grounds. In George there was no evidence in the record to explain the delay in failing the bring the motion earlier.
[23] There is equally no evidence on the record before me to explain the delay in bring the motion earlier. Counsel for the Plaintiff on the motion before me (not counsel of record), advised that lawyers are entitled to change their litigation strategy. He suggested that instead of failing to bring the motion to strike after advising he would do so in 2021, as suggested by counsel for the Defendants, counsel of record instead decided against doing so. However, he revisited that decision following trial scheduling court.
[24] As there was no affidavit from counsel of record explaining why he decided not to bring the motion, his submission can be given no weight.
[25] Further, the Defendants were not notified in advance of trial scheduling court that the Plaintiff intended to address the issue of the motion to strike. The issue arose in the context of a dynamic court appearance.
[26] I find that the Plaintiff has not met the bar under the "interests of justice" test, and her motion for leave is denied.
Issue Two - Should the Jury Notices Be Struck?
[27] Even if I had granted leave, I would not have struck the jury notices.
[28] The Plaintiff's actions were both commenced before the significant amendments to the availably of jury trials under r. 76 on January 1, 2020. Of particular import was the elimination of jury trials under the simplified procedure. However, subsection 108(2.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that the bar to a jury trial under the simplified procedure does not apply to an action in which a jury notice was delivered before the amendments on January 1, 2020.
[29] Here the jury notices were served well before January 1, 2020. Thus, the Defendants have a statutory right to a trial by a jury. But as discussed in the following paragraphs, this statutory right is not unqualified.
[30] A party moving to strike a jury notice 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 which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37.
[31] Judges considering motions to strike have a broad discretion to determine how the trial will proceed: Cowles, at para. 38.
[32] Myers J., in A.B. (Litigation Guardian of) v. C.D., held that on motions to strike, the court must engage in a search for the process that most justly resolves the litigation. In so holding, Myers J. cited the following principles from Karakatsanis, J. in Hryniak v. Hauldin, 2014 SCC 7, [2014] 1 SCR 87:
- Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
- Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.
- The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
A.B. (Litigation Guardian of) v. C.D., 2018 ONSC 2186, [2018] O.J. No. 1771 at para. 30.
[33] This approach was most recently affirmed by the Court of Appeal in Girao v. Cunningham, 2020 ONCA 260, [2020] O.J. No. 1729, at para. 171:
While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.
[34] The Defendants submit that the loss of a jury trial will be non-compensable. They have been preparing for the better part of 9 years to mount a trial in front of a jury, and their litigation strategy reflects this.
[35] The Defendants further submit that there will be no significant reduction in trial time if the matter was heard by a judge sitting alone. There are two separate actions, there will be threshold motions, and the Plaintiff intends to seek leave to call more than three expert witnesses. They strongly disagree with the Plaintiff's estimate that the actions can be tried in five days.
[36] There must be some juridical reason grounding a party's request to strike a jury notice. Unfortunately, I did not hear one.
[37] What I did hear was that:
- a judge alone trial is more efficient, and can be heard in less time than a trial by jury
- there is no guarantee that this matter will be heard by a jury in May 2024
- efficiency matters
- if the parties can get something done quickly, they should do so
- if the courts "can effect the same result in less time" this is good for all parties.
[38] These reasons do not persuade me that justice will be better served for all parties with a judge-alone trial. Indeed, if efficiency were a significant factor, then jury notices would be routinely struck.
Conclusion
[39] The Plaintiff's motion is dismissed.
Costs
[40] At the conclusion of the motion I asked for costs submissions. The Plaintiff submitted that if she were successful she would not seek costs, as this motion was brought at the suggestion of the trial scheduling judge. If I have not already made it abundantly clear, I did not find this to be the case.
[41] As the successful parties, the Defendants are presumptively entitled to their costs. The Reid Defendants would seek $2,884.89; the Jamialahmachi Defendants $4,263.13[^1], all on a partial indemnity basis.
[42] As the Court of Appeal held in Boucher v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is "to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant."
[43] I find that $2,000 to each of the Reid and Jamialahmachi Defendants is a fair and reasonable amount for costs.
CASULLO J.
Date: September 12, 2023
[^1]: Counsel advised that the Jamialahmachi Defendants took the lead on the written submissions, which accounts for the higher fees.