Court File and Parties

Court File No.: CV-19-8750 Date: 2024-04-15 Ontario Superior Court of Justice

Between: Shayne Specht, Plaintiff And: O’Bumsawin, Defendant

Counsel: Kimberly Kenney, for the Plaintiff Brianna Johns, for the Defendant

Heard: February 21, 2024

Decision on Motion

Cornell J.

Introduction

[1] The plaintiff brings a motion to move the matter into the Simplified Procedure. In accordance with the reasons that follow, the motion is dismissed.

Background

[2] The action arises out of a motor vehicle accident that took place on August 11, 2018.

[3] A statement of claim was issued on October 7, 2019. The plaintiff issued a jury notice on November 7, 2019. A statement of defence that included a jury notice was delivered on December 20, 2019. Examinations for discovery took place on August 6, 2020.

[4] The plaintiff filed a trial record on May 11, 2021. A pre-trial conference took place on November 18, 2021.

[5] By letter dated December 13, 2021, the plaintiff asked the defendant to consent to having the matter proceed under the Simplified Procedure. When no reply to this letter was received, the plaintiff brought a motion on August 31, 2022, seeking leave to do so. The motion was heard on February 21, 2024.

Issues

1. Should leave be granted under Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, to allow the plaintiff to bring this motion despite the fact that the plaintiff has previously filed the trial record?
2. If leave is granted, should the jury notice be struck such that leave to amend the statement of claim be granted to allow the plaintiff to bring the matter under the Simplified Procedure?

Analysis

[6] Once a party has filed a trial record, they may not initiate any motion without leave of the court. Leave can be obtained if the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record. Alternatively, leave can be granted where it is in the interest of justice to do so. See Edwards v. Alcock, 2022 ONSC 4099.

[7] The various factors that a court may wish to consider whether there is justification for granting leave include:

1. what the party seeking leave knew when it delivered the trial record;
2. whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial;
3. the purpose of requesting leave;
4. the nature of the relief being requested;
5. whether the party opposing leave would suffer prejudice; and
6. whether the relief sought would likely be granted if leave were given.

See Edwards v. Alcock, 2022 ONSC 4099, at para. 9; Fulop v. Corrigan, 2020 ONSC 1648, at para. 77.

Filing the Trial Record

[8] The Rules of Civil Procedure were amended effective January 1, 2020, to increase the monetary jurisdiction of the Simplified Procedure from $100,000 to $200,000. The amendment had come into force 86 days after the plaintiff had filed their statement of claim and approximately 1 year and 4 months prior to the plaintiff serving the trial record on May 11, 2021.

[9] In an affidavit filed by the plaintiff in support of this motion, it is set out that “by July 2020, after the amendments to Simplified Procedure allowed claims up to $200,000, it was evident that the plaintiff’s claim should proceed via the Simplified Procedure ”(emphasis added).

Substantial/Unexpected Change

[10] In the statement of claim issued on October 7, 2019, the plaintiff claimed general damages in the amount of $500,000 and special damages in the amount of $1,000,000.

[11] As previously set out, the plaintiff knew by July 2020 that the claim should proceed under the Simplified Procedure. If at that point in time the plaintiff knew that the claim should be brought under the Simplified Procedure, the plaintiff also knew then that the value of the claim was $200,000 or less.

[12] There has been no substantial or unexpected change in the circumstances of the plaintiff since the action was set down for trial.

Purpose of Requesting Leave

[13] The stated reason for requesting leave is to strike the jury notice and bring the matter under the Simplified Procedure.

[14] That being said, the plaintiff expresses concerns about his exposure to costs if the matter proceeds as currently constituted. It is my opinion that the plaintiff’s concern about costs exposure is the primary or perhaps the sole motivation in seeking to have the matter brought under the Simplified Procedure.

[15] This point was addressed in May v. Hutchinson, 2013 ONSC 7712, at para. 14, as follows:

I accept that, in the exercise of a discretion on whether to transfer an action to the Small Claims Court, the court should consider the overall goal expressed in rule 1.04 of securing the just, most expeditious and least expensive determination of every civil proceeding on its merits, and the principle of proportionality. The inclusion of the adjective "just" in Rule 1.04 carries with it a requirement that the process adopted, and the exercise of discretion by the court, must be fair to both sides. It was the plaintiff who chose to claim the amount of damages that she did and to commence her action in the Superior Court and the defendant was entitled, and indeed required, to marshal resources and to adopt a litigation strategy commensurate with the claim and the forum chosen by the plaintiff. In the circumstances of this case, it would be unfair to the defendant to effect a transfer to the Small Claims Court simply because the plaintiff has now come to the realization that her true claim for damages is within the jurisdiction of the Small Claims Court and wishes to mitigate her exposure to a possible adverse award of costs in the Superior Court. This is not a case, like Graves, of an increase in jurisdiction of the Small Claims Court bringing the plaintiff’s claim within the new expanded jurisdiction, thereby justifying a transfer.

Relief Requested

[16] The relief being requested has previously been set out.

Prejudice

[17] The defendant asserts that they will suffer prejudice if leave is granted.

[18] The defendant asserts that when initially faced with a claim of this magnitude, the defendant developed their litigation plan accordingly. Pleadings are complete. Discoveries have been held. A pre-trial conference has been held. The only thing that remains to be done is to conduct the trial. The defendant’s litigation plan would, in all likelihood, have been considerably different if the matter was to have proceeded under the Simplified Procedure initially or at a much earlier point in time.

Would Relief be Granted?

[19] The whole point of the existence of the Simplified Procedure is that matters having a certain value will proceed in a more expeditious and less costly fashion than a conventional claim. The plaintiff acknowledges that as of July 2020 he had concluded that the matter lay within the monetary jurisdiction of the Simplified Procedure.

[20] The defendant points out that since the time that the claim was filed, the defendant’s litigation plan has focused on this matter being a jury trial.

[21] It has been determined that the amendment to the monetary jurisdiction of the Simplified Procedure did not take away a defendant’s substantive right to a jury trial where the jury notice was delivered before January 1, 2020. See Thomas v. Aviva, 2022 ONSC 1728, at paras. 12-13.

[22] It has been determined that “the right to a jury trial is a substantive right: not absolute, but important.” See Andres v. Rasheid, 2022 ONSC 3317 at paras. 17-19.

[23] When all of the relevant factors are taken into consideration, it is my opinion that the plaintiff has failed to meet the onus on him that it would be appropriate in this case to strike the jury notice.

COVID-19/Judicial Backlog

[24] Although the plaintiff suggests that these matters should be taken into consideration in determining whether or not the relief sought should be granted, it is not appropriate that I do so.

[25] The submissions made by the plaintiff in this regard are not supported by any specific statistics pertaining to the circumstances previously or currently existing in Sudbury.

Conclusion

[26] Rule 48.01 provides that a party “who is ready for trial” may set the action down for trial. This means that the plaintiff indicated he was ready for trial when he filed the trial record on May 11, 2021. At that time, the plaintiff knew of the increase to the jurisdiction of the Simplified Procedure and that as of July 2020, that his claim lay within such increased jurisdiction. These factors should have been taken into consideration prior to the filing of the trial record, not at some point thereafter when nothing of significance has occurred.

[27] After taking all of the appropriate factors into consideration, I conclude that leave to bring this motion should not be granted. Although I have done so to some extent, I need not further deal with the request that the pleadings be amended to bring the matter under the Simplified Procedure or to strike the jury notice.

Costs

[28] If the parties are unable to agree on costs, the defendant shall provide written submissions within 14 days not exceeding 2 pages together with supporting material. The plaintiff shall have 14 days to deliver any responding material, such material restricted to 2 pages together with supporting material. The defendant shall have 7 days to deliver a reply limited to 1 page.

[29] If costs submissions are not received within the timeframe set out, it shall be conclusively determined that the parties have resolved the issue of costs.

The Honourable Mr. Justice R. Dan Cornell Released: April 15, 2024