Court File and Parties

Court File No.: CV-19-00000427-0000 Date: 2024-07-05 Superior Court of Justice – Ontario 74 Woolwich Street, Guelph, ON N1H 3T9

Re: THE ESTATE OF COLLEEN HAASE, deceased, by its Litigation Administrator KEN AGNEW, and THE ESTATE OF GERALD HAASE, deceased, by its Litigation Administrator, KEN AGNEW, and KEN AGNEW, Plaintiff And: ST. MARY’S GENERAL HOSPITAL, JOHN DOE and JANE DOE, Defendants

Before: Justice Kurz

Counsel: Kenneth Ciupka (agent), for the Plaintiff Vilma Dautaj (agent), for Defendant

Heard: July 2, 2024, by Attendance

Endorsement

[1] This is a motion by the Plaintiff to amend the statement of claim to reduce the prayer for relief to the agreed upon total amount of $152,500, continue this action as a simplified proceeding under r. 76 and strike the jury notice. The Plaintiff argues that the court should exercise its discretion to grant the relief sought because of changes which have occurred in this litigation, including the agreement of the parties as to damages. Further, it submits that the result would be a more expeditious, cost effective and proportional manner of resolving the remaining issues in this action.

[2] The motion is opposed by the Defendants who argue that they would be prejudiced by the loss of the right to a jury trial. They say that the right should not be lightly removed and that there are insufficient grounds to do so here.

[3] For the reasons that follow I grant the relief sought.

Background

[4] This action arises out of a slip and fall accident which occurred at the site of the Defendant hospital (the “Hospital”). On May 16, 2019, the Plaintiff, Colleen Haase (“Colleen”), was visiting her husband, the Plaintiff Gerald Haase (“Gerald”), in the Hospital. While doing so, she tripped over an oxygen hose which was feeding her husband’s oxygen line. As a result, she fractured her right hip and suffered ancillary bruises. She pleaded that the hose was concealed by a curtain.

[5] On November 22, 2019, Colleen, Gerald and Colleen’s son, Ken Agnew (“Ken”) issued a statement of claim against the Defendants, claiming $4,000,000 in damages for Colleen and $500,000 in damages for loss of Colleen’s care, companionship and guidance for each of Gerald and Ken under s. 61 of the Family Law Act, R.S.O. 1990, c. F3, as am.

[6] The Hospital filed its statement of defence and jury notice on March 31, 2020.

[7] Colleen died for reasons unrelated to this litigation on May 13, 2020. The Hospital examined Gerald for discovery on November 20, 2020.

[8] Gerald became Colleen’s litigation administrator by way of an order to continue dated June 15, 2021.

[9] The plaintiffs served and filed the Trial Record on April 4, 2022.

[10] Gerald died, also for reasons unrelated to this litigation, on May 13, 2022.

[11] Ken was appointed the litigation administrator of both Colleen and Gerald by way of an order to continue, dated May 4, 2023.

[12] The pretrial conference of this action took place on May 11, 2023. In a trial scheduling hearing in August 2023, Ken indicated that he is ready for trial. As I understand it, the parties agreed that this would be a five-day trial. On November 9, 2023, Ken indicated his intention to transfer this action to the simplified proceedings.

[13] The parties resolved the issue of damages in this action on April 10, 2024. According to their agreement, total damages are assessed at $152,500. The remaining issue is liability.

Authorities

[14] Under r. 26.01, a party has the presumptive right to amend pleadings upon such terms as are just, at any stage of the proceedings unless prejudice would result that could not be compensated for by costs or an adjournment.

[15] Under r. 48.04, a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

[16] There are two lines of cases which set out the applicable test under r. 48.04. One requires the moving party to demonstrate a substantial or unexpected change in circumstances since the filing of the trial record, which would make a refusal to grant leave manifestly unjust in the circumstances: Edwards v. Alcock, 2022 ONSC 4099 at para 8. The other, less restrictive test allows for leave when it is in the interests of justice: BNL Entertainment Inc. et al. v Rickets et al., 2015 ONSC 1737 at paras. 12 and 14.

[17] In BNL Entertainment, Master Muir, as he then was, considered both lines of authority and explained at para. 14 why he preferred what he described as the “broader approach”, writing:

[14] I have reviewed and considered the various conflicting authorities cited above and relied upon by the parties. I prefer to follow the line of cases that have adopted the broader approach. In my view, it is desirable for the court to apply a flexible test when exercising its discretion to grant leave under rule 48.04(1). The court should consider all of the circumstances of the matter before it and make the order that is just in the circumstances of each particular case. This approach is consistent with the overall interpretive provision found in rule 1.04(1) which requires that the Rules be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits".

[18] Courts have also adopted the broader approach in J.A.L. Developments Inc. v. Residents of Springhill Inc., 2020 ONSC 2222 at para 68 and Cromb v Bouwmeester, 2014 ONSC 5318, at para. 36.

[19] Under r. 76.02, the simplified procedure is available for actions seeking money or property totaling $200,000 or less, exclusive of interest and costs. Further, under r. 76.01(7), an action commenced in an ordinary procedure can be continued under simplified proceedings if the consent of all parties is filed or in the absence of consent the pleading is amended under r. 26 and any jury notice is struck.

[20] The parties agree that if an ordinary proceeding is transferred to the r. 76 simplified proceeding, there can be no jury trial.

[21] The statutory right to a jury trial is set out in s. 108(1) of the Courts of Justice Act, which reads as follows:

108 (1) In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.

[22] A party’s right to a jury trial is also set out in r. 47.01, which states:

47.01 A party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury, by delivering a jury notice (Form 47A) at any time before the close of pleadings, unless section 108 of the Courts of Justice Act or another statute requires that the action be tried without a jury.

[23] The right to a jury trial is a substantive one. It ought not to be interfered with absent just cause: Thomas v. Security National Insurance Co., 2022 ONSC 1728, at para. 22. Some cases have played down the role of efficiency as a reason to strike a jury notice: see Lightfoot v. Hodgins, 2021 ONSC 1950, Boniferro v. Jolicoeur, 2024 ONSC 2601. In Andres v. Rasheid, 2022 ONSC 3317, Wilson J., as she then was, refused to allow a transfer to the simplified proceeding that would result in the striking of a jury notice where the amendment was seen as “tactical”.

[24] However, in Louis v. Poitras, 2021 ONCA 49, the Court of Appeal for Ontario indicated that a court has broad discretion to determine the mode of trial, including whether to strike a jury notice. Writing for the court at para. 17, Hourigan J.A. stated:

17 It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party's entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial. This court described the role of the court this way in Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal refused, [2006] S.C.C.A. No. 496:

While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible.

Analysis

[25] There is no doubt that the Defendants, including the Hospital have a substantive right to a jury trial, but also that the right is not an absolute one. The key factor that a number for courts have considered in cases such as this is the mode of trial which would give the parties the most just process as possible. Rule 1.04 is vitally important in making that determination. It directs the court at r. 1.04(1) to liberally construe the Rules “ to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. Rule 1.04(1.1) further directs the court to “make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.

[26] Here, in considering the authorities set out above and the broad discretion available to this court, I find that it is in the interests of justice to allow the relief sought by the Plaintiff because:

a. There have been a number of changes in this litigation since it was commenced, including the death of two of the three original Plaintiffs. b. Ken only became the estate administrator of Colleen and Gerald in May 2023. c. The parties only resolved the issue of damages this past April 2024, well after it was set down for trial and the parties indicated their readiness for trial. Until that time, it was not clear that this action fit within the jurisdiction of r. 76. d. The agreement as to damages leaves only one issue for trial: liability. While there is no question that a jury is capable of determining the issue of liability in this case, it is obvious that so too is a judge of this court. e. Further, the resources of this court in the Central West Region are quite strained. Criminal cases run the risk of being stayed for delay because of difficulties bringing them all to trial within the time limits set by the Supreme Court of Canada. There are real delays in bringing non-criminal and in particular civil cases to trial, particularly jury trials. f. This matter would be tried far less expensively and far more expeditiously under r. 76 than as a jury trial. I am informed by the Guelph Superior Court that a non-jury-trial of up to five days can be fit in within the court’s trial blitz, particularly when another scheduled trial goes down, as recently occurred in its last blitz. But the scheduling of a jury trial in Guelph is far less flexible that a non-jury civil trial. It requires greater administrative planning and resources of the court. The parties’ trial will be delayed far longer as a jury trial than as a judge-alone trial. It will also take longer as a jury trial than as a r. 76 trial. g. This case is already five years old and has survived the deaths of the main plaintiff and one of the two Family Law Act claimants. It needs to be resolved as expeditiously as possible.

[27] For all of the reasons set out above, I exercise my discretion to grant the relief sought in this motion. In particular:

a. I grant leave to bring this motion and to amend the statement of claim in line with the draft attached to the statement of claim. However, the prayer for relief in the statement of claim will be in line with the parties’ agreement as to damages. b. I order that this proceeding be continued under the r. 76 simplified procedure; c. I strike the jury notice issued by the Defendants.

Costs

[28] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Plaintiff may submit his costs submissions of up to three pages, double spaced, one-inch margins, plus costs outline and offers to settle within 14 days of release of this endorsement. He need not include the authorities upon which he relies so long as they are found in the commonly referenced reporting services (i.e. , LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Defendants may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

Kurz J. Date: July 5, 2024