COURT FILE NO.: CV-19-00000231-0000
DATE: 2023 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Leaveta Brown Edwards, plaintiff
Gerald Sternberg, for the plaintiff
Email: Gerald.sternberg@bellnet.ca
Plaintiff
- and -
Harminder Jagpal, Kamaljit Khattra, and Airport Taxicab (Pearson Airport) Association, defendants
Defendants
Grant Bodnaryk, for the defendants
Email: gbodnary@travelers.com
HEARD: November 14, 2023, in person
ENDORSEMENT
[1] This action arises out of a motor vehicle accident that occurred on November 30, 2018, at the intersection of Airport Road and Orlando Drive, in the City of Mississauga. The Plaintiff and the Defendants have different recollections of the accident, and liability will be a key issue at trial.
[2] There were three motions before me:
a. The Defendants’ motion to install a jury;
b. The Defendants’ undertakings and disclosure motion; and
c. The Plaintiff’s motion for answers to refusals.
A. Motion to Install a Jury
[3] The Defendants bring a motion to have this matter heard by judge and jury. The Plaintiff resists the motion.
[4] The procedural history of the matter is complicated but also relevant to the jury issue.
[5] The Plaintiff commenced this matter on December 27, 2019. The Statement of Claim was issued in the ordinary procedure because it was a claim in excess of $500,000. On April 19, 2021, before any defence pleadings were filed, the Plaintiff amended her claim to seeks a lower amount of damages, which brought the matter within the scope of the simplified procedure under Rule 76. After that date, both parties believed that they were operating under the simplified procedure rules.
[6] On May 3, 2019, the Defendants delivered their Statement of Defence. In the accompanying email to Plaintiff’s counsel, counsel for the Defendants made it clear that, if the action was ever moved back into ordinary procedure, the Defendants would take steps to file a jury notice.
[7] Sometime in 2022, facing delay on the part of the Plaintiff in terms of moving this matter along and in order to proceed to trial, the Defendants filed a Notice of Readiness for Pre-Trial Conference. In their pre-trial conference brief, the Plaintiff estimated that the trial would take at least 10 days. The Defendant estimated that it would take five days for the Defence witnesses alone.
[8] Justice McGee held two pre-trial conferences with the parties—on November 25 and December 8, 2022. After the last appearance, it was determined that the length of anticipated trial (10 days) brought the matter outside the time limits for trials under the simplified procedure. As of December 8, 2022, the parties agree that they understood the matter to be proceeding by way of ordinary procedure. Her Honour indicated that the matter was to proceed to assignment court on February 6, 2023. The assignment court date was adjourned a number of times such that the parties are now scheduled to appear in trial assignment court on December 11, 2023.
[9] The Defendants brought the motion seeking to install a jury on February 21, 2023.
[10] Despite Justice McGee’s endorsement and this outstanding motion, the Plaintiff has recently (and somewhat inexplicably) filed a Form 76A notice pursuant to Rule 76.02(7)(b) that the matter continue under the simplified rules. The Plaintiff explains that she is asking me to revisit the trial estimate endorsed by Justice McGee because she is now confident that the trial could be completed in 5 days, which would bring this matter back into the simplified procedure (where jury trials are not available). I am not prepared to entertain this argument at this late stage. The parties had extensive trial management discussions with Justice McGee and agreed to a trial management plan. It was based in large part on the Plaintiff’s own representations about the evidence she intended to proffer. If the trial could have been done in 5 days, this should have been canvased with Justice McGee at the time.
[11] To be clear, regardless of the Plaintiff’s recent attempts to move this matter back into the simplified procedure, it is proceeding by way of ordinary procedure. This is consistent with the parties’ intentions and understanding after the last pre-trial with Justice McGee.
[12] Having dealt with the Plaintiff’s preliminary objections, the central question before me is whether, pursuant to Rule 48.04(1), I should grant leave to allow the Defendants to bring this motion even after they submitted their pre-trial conference readiness form (which was the first step towards setting the matter down for trial under the simplified procedure).
[13] In Horani v. Manulife Financial Corporation, 2023 ONCA 51, [2023] O.J. No. 338, at paras. 17 and 18, the Court of Appeal noted that there are two lines of cases setting out the test for granting leave pursuant to r. 48.04(1). The first requires the moving party to show “a substantial or unexpected change in circumstances such that a refusal to make an order under r. 48.04(1) would be manifestly unjust”. The second requires the moving party to demonstrate that “the interlocutory step is necessary in the interests of justice.” The court declined to determine the appropriate test.
[14] Though it predates Horani, in Fulop v Corrigan, 2020 ONSC 1648, at para. 77, Justice Perell helpfully sets out some of the factors to be considered in deciding whether to grant leave as follows:
The predominant contemporary approach to whether leave should be granted is a flexible approach that recognizes that there may be no single test for leave to initiate or continue a motion or form of discovery, and the weight to be given the various discretionary factors will depend upon the circumstances of the particular case. In considering whether there is justification for granting leave, the court may consider a variety of factors including: (1) what the party seeking leave knew at the time of the passing of the trial record; (2) whether there has been a substantial or unexpected changed in the circumstances since the action was set down for trial; (3) the purpose of the request for leave; (4) the nature of the relief being requested; (5) whether the party opposing the relief would suffer any prejudice; and (6) whether the relief sought would likely be granted if leave were given to bring the motion notwithstanding the filing.
[15] On either articulation of the test outlined in Horani, and based on the factors outlined in Fulop, I would grant leave to the Plaintiffs to file a jury notice.
[16] First, the Defendants have not delayed bringing this motion. This matter was originally proceeding by way of simplified procedure, such that the Defendants had no right to trial by jury. However, as early as May 3, 2019, the Defendants advised that they would be filing a jury notice if the matter moved back into the ordinary procedure.
[17] After Justice McGee conducted two pretrials in November and December 2022, it was determined that the length of anticipated trial (10 days) brought the action outside of the requirements for simplified procedure until Rule 76. Upon so learning, and given the intervening holiday season, the Defendants moved with due diligence to bring this motion to seek that a jury be installed. The change in the manner of proceeding was clearly a substantial change in circumstances since the action was set down for trial.
[18] Second, the Defendants have a prima facie right to a trial by jury by virtue of s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I note that Rule 47 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 contains similar language. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).
[19] Finally, the onus of proving actual prejudice lies with the Plaintiffs and they have not adduced sufficient evidence to support such a finding. It is not clear to me that a jury trial will be longer than trial by judge alone. Even if it was longer, if the Plaintiff is successful in her claim, the additional expense of a longer trial could be adequately compensated through a costs award. Moreover, no trial date has been set and there is no evidence that this motion will delay the scheduling of the trial. Considering all the factors, I would grant leave to the Defendants to bring this motion.
[20] I would also grant the relief sought. The Defendants are prima facie entitled to trial by jury where the matter is under the ordinary procedure. This is both a statutory and substantive right: Thomas v. Aviva, 2022 ONSC 1728, paras. 21-22. I see no basis to interfere with that right simply because the Plaintiff did not anticipate facing trial by jury once this matter was proceeding under the simplified procedure: see Edwards v. Alcock, 2022 ONSC 4099, para. 26. Indeed, there is a reasonable risk of abuse in future actions if I were to allow the Plaintiff to avoid a jury purely through strategic movement in and out of the simplified procedure.
B. Defendants’ motion re undertakings, refusals, and disclosure
[21] The Defendants asks for an Order compelling the Plaintiff to provide all the information, materials, and documentation necessary to satisfy outstanding undertakings given at her Examination for Discovery on December 13, 2021.
[22] Leave to proceed with this motion was granted by McGee J. on December 8, 2022.
[23] There were some 27 undertakings outstanding when this motion was first filed. As of today’s date, there is only one undertaking that remains outstanding: for the Plaintiff “to obtain and produce a copy of the Plaintiff’s EI file.” The Plaintiff says that she is agreeable to fulfilling this undertaking and believes that the relevant information has already been requested. The Plaintiff shall provide a written response to this undertaking within 14 days, and/or swear an affidavit indicating the steps taken to obtain this information and the expected delivery date.
[24] The Defendant also asks me to order that the Plaintiff produce her employment records from Instacart and Canadian Linen. The Plaintiff took these under advisement at her examination, and the Defendant says that having failed to provide such information, these items are now deemed refusals. I disagree with this characterization. The Plaintiff adduced evidence of her counsel’s efforts to obtain documentation from Instacart and Canadian Linen, and I am satisfied that best efforts were made such that no further orders are required in relation to these two items.
[25] Finally, before me, for the first time, the Defendant sought disclosure of the Plaintiff’s application for CERB. He says that these records are relevant to the credibility of her claim that she was unable to work after the accident (and well-before the pandemic). While the CERB application may be of some relevance, I am not prepared to order it at this late stage in the proceedings. The Defendants’ Notice of Motion did not specifically request it and it was not mentioned in his more recent confirmation forms. As such, the Plaintiff was not on notice that it would be necessary to address the matter before me. As such, I am not prepared to order that the CERB application be produced.
C. Motion re Plaintiff’s Refusals
[26] The Plaintiff seeks answers to questions that she says were improperly refused by the personal Defendant, Harminder Jagpal, at his Examination for Discovery on January 31, 2022. In my view, leave to proceed with this motion was granted by McGee J. on December 8, 2022 wherein she ordered that the parties satisfy outstanding undertakings and that “in person motions for productions” proceed thereafter.
[27] Turning now to the substance of the matter. In essence, the Plaintiff seeks that names and identity of the individual(s) who were on the scene after the accident and who drove the Defendant home, as well as the airport limousine dispatch log from the day in question.
[28] Having reviewed the transcript in detail, I find that the Defendant was clear in his answers that he did not know the identity of the individuals in question, beyond the fact that they were also taxi drivers who worked out of the airport (of which there are thousands). He was also clear that he did not receive dispatch notices because his only route was to pick up passengers from the airport.
[29] On this basis, I find that the refusals were proper. The Defendant did not have any information that would be responsive to the Plaintiff’s request. The Plaintiff’s motion is dismissed.
D. Costs
[30] The Defendants were successful on this motion. They seek costs totaling approximately $8000, broken down as follows:
d. Partial indemnity costs on the undertakings motion in the amount of $3631;
e. Partial indemnity costs on the jury notice motion in the amount of $2,262;
f. Partial indemnity costs on the Plaintiff’s refusal motion in the amount of $2032.
[31] I have broad discretion when it comes to awarding costs: Courts of Justice Act, s. 131(1). I must consider the factors set out in Rule 57.01(1), including but not limited to: offers to settle, the complexity and importance of the matter, the conduct of any party during the litigation, the principle of indemnity, and the amount that an unsuccessful party could reasonably expect to pay.
[32] In my view, the undertakings and refusals issues should not have required a motion. The Plaintiff ultimately conceded the relevance of most of the material sought in the Defendant’s undertakings motion, while the Plaintiff’s refusals motion was without merit.
[33] The jury issue was more complex, and I benefited greatly by the Defendants’ diligent preparation, filing, and uploading of materials. In contrast, the Plaintiff’s materials were evolving, filed late, and not properly uploaded to Caselines such that I was not able to review them prior to the motion. Plaintiff’s counsel was also completely unable (and unwilling) to use Caselines to direct the court, instead relying entirely on Defendant’s counsel for assistance.
[34] On the whole, I am prepared to award costs on a substantial indemnity basis in the amount of $9000. I am hopeful that this cost award will encourage Plaintiff’s counsel to be more prepared for future attendances.
MANDHANE J.
COURT FILE NO.: CV-22-1213-0000
DATE: 2023 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Leaveta Brown Edwards, plaintiff
Plaintiff
- and -
Harminder Jagpal, Kamaljit Khattra, and Airport Taxicab (Pearson Airport) Association, defendants
Defendants
ENDORSEMENT
Mandhane J.
Released: November 17, 2023