COURT FILE NO.: CV-21-00001616-0000
DATE: 20241028
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Danette Metivier, Plaintiff
AND
Heather Jacobs, Defendant
BEFORE: Justice Spencer Nicholson
COUNSEL: N. Sera, for the Plaintiff
T. Madison, for the Defendant
CASE CONFERENCE: October 18, 2024
PRE-TRIAL CONFERENCE: October 23, 2024
CASE CONFERRENCE ENDORSEMENT
NICHOLSON J.:
[1] This is a motor vehicle accident personal injury case, currently scheduled for a five-day trial commencing the week of December 2, 2024, in London. The action was brought under the Simplified Rules and is currently to be tried before a judge alone.
[2] At the pre-trial that was to be conducted by Moore J., the plaintiff identified 8 trial witnesses. These witnesses would provide their evidence in chief by way of affidavit and then be cross-examined by defence counsel. The plaintiff would have a right of re-examination. It was estimated that the plaintiff’s case would require 27 hours for witnesses alone. That estimate, on its own, exceeds the maximum time permitted for a Simplified Rules trial, which is five days (in this region interpreted as 25 hours).
[3] The defendant proposes to call two witnesses. Again, the defendant’s evidence in chief would be by affidavit, followed by viva voce cross-examination. Defence counsel projected 8 hours for the defense case.
[4] These estimates did not include allocation of time for opening and closing statements, or the defendant’s anticipated threshold motion.
[5] Moore J. directed that the parties attend a case conference to address scheduling and whether the case can be tried within the allotted time for a Simplified Rules trial. It is the defendant’s position that the case cannot be completed within five days, and that she would be prejudiced if the trial was not completed, and a new trial was required. The plaintiff maintained that the case could be concluded within five days and raised concern with the delay in moving it to a trial brought under the “ordinary” rules.
[6] The other relevant consideration, at least to the parties, is that under the Simplified Rules there would be no jury. The plaintiff, consistent with widely held beliefs in the personal injury field, would prefer not to have a jury. The defendant, again consistent with those widely held beliefs, would file a jury notice if the case was transferred to the ordinary procedures.
[7] I note that the accident occurred on September 26, 2019. I further note that the plaintiff is now 50 years of age and alleges that she has an income loss. Any significant delay in the trial could potentially result in future income loss that would be assessed at 100% of gross, being treated as past loss of income, at 70% of gross. Thus, significant delay could prejudice the plaintiff.
[8] I also note that the plaintiff has limited income, derived from CPP and ODSP benefits. Thus, there is some merit to her concern about the expense associated with a lengthy trial.
[9] The parties initially attended before me on October 16, 2024. Counsel for the plaintiff had reduced his witness list by 1 witness. That resulted in a meager savings of 3 hours from the plaintiff’s case. I required counsel to consider further streamlining his case.
[10] Meanwhile, counsel for the defendant, when asked by the court how long his cross-examinations would take, indicated that he would take “as long as he was entitled to take”. I asked counsel to provide any rule or authority that established a floor or ceiling in terms of time.
[11] We reconvened on October 18, 2024.
[12] On that date, plaintiff’s counsel had eliminated two further witnesses. Accordingly, he intended to produce the following individuals:
(a) The plaintiff, Danette Metivier;
(b) Physiatry expert, Dr. Mohammad Khan;
(c) Vocational expert, Mr. Alan Croxson;
(d) Expert kinesiologist, Mr. Scott Blad;
(e) Economic Loss expert, Ms. Jennifer Lynch.
[13] Using the same time estimates as originally forecast, this would reduce the plaintiff’s witness time to 17 hours. The defendant’s time estimate remained 8 hours. The resulting 25-hour estimate then used up all the allocated time, without considering opening statements, closing arguments and the threshold motion.
[14] The defendant was unable to provide any rule or case that guaranteed any specific amount of time that would be allotted for cross-examination.
[15] Frankly, I was of the view that some of the estimates for cross-examination and re-examination might be unnecessarily high. For example, two hours was allocated for the cross-examination of the plaintiff’s economic loss expert. Four hours was allocated to the cross-examination of the plaintiff’s expert physiatrist. Two hours was allocated to cross-examination of the defendant, in a case in which the defendant was convicted of failing to stop for a stop sign.
[16] The parties had allocated one hour to each witness for re-examination (except the defence physiatry expert to whom two hours was allocated for re-examination). Keeping in mind the limited areas that re-examination can explore, those estimates were also high.
[17] Thus, I believed some time off could be shaved off the estimates, possibly fitting this trial within the allotted five days.
[18] I reserved this endorsement following the case conference to consider my decision.
[19] However, at the suggestion of, and with the consent of, both parties, I agreed to conduct the pre-trial in this matter on Wednesday, October 23, 2024. To that end, I reviewed the pre-trial memoranda. I now have some better insight into the issues in this case.
[20] The case is considerably more complicated medically than I had believed during the case conferences. Indeed, the plaintiff’s pre-trial memorandum is approximately 24 pages in length, single spaced. It includes 51 Tabs dealing with the plaintiff’s pre-and-post accident medical history. This far exceeded the permissible length of a Rule 76.10 pre-trial conference “statement of issues”. I should note that so did the defendant’s brief.
[21] Not surprisingly, the parties’ physiatry experts disagree on the extent of the plaintiff’s injuries, whether the motor vehicle accident is responsible for her current condition, and whether her motor vehicle accident-related injuries meet the “statutory threshold”.
[22] The plaintiff is advancing a significant income loss claim. In the pre-trial memorandum, it is alleged to significantly exceed the $200,000 Simplified Rules limit, before any collaterals are considered. Obviously, the plaintiff is free to waive any damages over and above $200,000 that she wishes. Thus, her damages are capped whatever income loss claim she proves.
[23] However, the plaintiff has a lengthy pre-accident history of chronic pain complaints, pre-mva medical visits and significant post-accident medical treatment. The defendant had allocated three hours to cross-examining the plaintiff. Having reviewed the briefs, I believe that this estimate is possibly too low. There is a lot of material to cover. I would anticipate defence counsel delving into these areas of cross-examination in some detail.
[24] I am also concerned about the length of the affidavit that the plaintiff would swear that the trial judge would be required to review, along with all the other affidavits, at the outset of trial in order to understand the cross-examination.
[25] Given all the medical documentation, I now anticipate that the cross-examinations of the expert physiatrist and the vocational consultant may take longer than I had believed during the case conference. Again, the defendant is likely to wish to undermine their opinions by challenging them with respect to the significant medical documentation.
[26] Although it is not clear whether the defendant will contest liability, I remain of the view that the defendant’s cross-examination will not take two hours. The defense expert physiatrist might be taken to a lot of the medical documentation on cross-examination.
[27] Finally, the defendant has surveillance it wishes to rely upon. This had not been mentioned at the case conference and no time had been allotted for it. At the pre-trial, counsel for the plaintiff indicated that he might forego cross-examination of the investigators to ensure that the case can be concluded within five days. However, at some point, this surveillance may have to be played in its entirety, and, perhaps, on the record. Thus, the initial estimate did not include allowance for surveillance.
[28] I should note that during the pre-trial conference, plaintiff’s counsel indicated that he could forego calling his expert kinesiologist, which the time estimates had suggested would be an additional 2.5 hours.
Analysis:
[29] The Simplified Rules are an important tool for access to justice. These rules are intended to result in less expensive litigation for all parties. However, resort to the Simplified Rules should not result in an unfair trial process.
[30] The Simplified Rules are available where the plaintiff’s claim is exclusively for money. The amount claimed cannot exceed, exclusive of interest and costs, $200,000.
[31] There is no prohibition to using the Simplified Rules for motor vehicle accident cases. In fact, given that such cases carry some risk to plaintiffs, the Simplified Rules have some attractive aspects to them. For one, the costs are controlled which may protect the plaintiff from a significant adverse costs award. As noted, plaintiffs are not exposed to the risks that a jury trial entails. In our region, it is also likely easier to reach a five-day civil non-jury trial, than a three-week jury trial.
[32] I have not conducted a Simplified Rules trial in the context of a motor vehicle accident personal injury claim and confess to having significant misgivings about whether a claim like this one can be conducted within 5 days without the plaintiff taking substantial shortcuts.
[33] I note, however, that RSJ Edwards, very experienced in this area, in Agha v. Munroe, 2022 ONSC 2508, in obiter, suggested that the outcome of the motor vehicle personal injury jury case before him (a poor result from the plaintiff’s perspective) “might cause all members of the personal injury Bar to perhaps consider having this type of case tried under the Simplified Rules…”
[34] There are also a number of cases that have addressed the issue of moving personal injury cases arising from motor vehicle accidents from the ordinary rules into the Simplified Rules, and the resulting impact on a jury notice (see, for example: Edwards v. Alcock, 2022 ONSC 4099; Andres, v. Rasheid, 2022 ONSC 3317; Borkowski v. Karalash, 2023 ONSC 6274; Specht v. O’Bumsawin, 2024 ONSC 2137).
[35] Thus, there is support that, despite my misgivings, motor vehicle accident personal injury cases are amenable to being tried under the Simplified Rules.
[36] Nonetheless, significant injustice can occur if a plaintiff tries to cram a lengthy trial into five days. Under the Simplified Rules, there is no provision for what happens should the parties exceed the allotted time. I am unaware of any case where that issue has arisen (but did not conduct a very extensive search). I presume that the judge would be faced with declaring a mistrial and determining which of the parties is responsible for the costs thrown away.
[37] Helpful comments were made by Heeney J. in Sutherland Estate v. London Health Sciences Centre, 2022 ONSC 5942, at para. 22, although not in the context of a motor vehicle accident case, as follows:
[22] The defendants argue that this is a complicated medical malpractice case, that cannot be completed in 5 days, even with those efficiencies. However, r. 76.02 makes no exceptions for complicated medical malpractice cases. Had this action been commenced under the simplified procedure, the defendants would have had no means of opting for an ordinary trial, no matter how complicated the case was.
[38] I also note the case of Brown v. Jagpal, 2023 ONSC 6521, which has some similarities to the case before me. In that case, the case was scheduled to be tried under the Simplified Rules but during the scheduling, the parties eventually agreed that it could not be concluded within five days. Here, the plaintiff does not agree, and in fact, has whittled her witness list down to accommodate a five-day trial, perhaps to her detriment in terms of what she must prove.
[39] I have concluded that absent a prohibition in the Rules, the plaintiff is entitled to make the choice of what procedure she wishes to use to pursue her claim, subject, perhaps, to the court’s inherent jurisdiction to control its own process (i.e. make scheduling orders). So long as the criteria under 76.02 are met, I ought not to lightly interfere with the plaintiff’s choice. That is consistent with Justice Heeney’s decision in Sutherland Estate, supra.
[40] This is not a case like those described above where the defendants had filed a jury notice and a transfer to Simplified Rules would interfere with their substantive right to a jury. In this case, because the plaintiff initiated the action within the Simplified Rules, the defendant had no substantive right to a jury. The defendant cannot take the position that it had prepared for trial by jury. There has never been a jury in this case.
[41] In fact, given that this is not a case where the defendant could have requested a jury, it is my view that whether a jury would hear this case otherwise, and the ramifications it might have to either side, perceived or real, should play no role in my analysis. The cases arising from motions to strike jury notices during COVID make clear that the view of the court is that justice is successfully carried out with or without a jury.
[42] The prejudice cited by the defendant may or may not occur, and a timetable can be created which allows the defendant to present its case in full. Furthermore, should the case not be concluded, and the trial judge concludes that this lies at the feet of the plaintiff, the defendant will have a remedy in costs.
[43] Furthermore, although I have dealt with this in a case conference format, it seems to me that this is akin to the defendant bringing a motion after the action has been set down for trial and after being well aware of the trial date in this matter for a considerable period of time. The defendant did agree to this trial date, knowing it was a Simplified Rules trial. The parties are on the eve of trial. While I agree that the plaintiff controls the length of trial by the number of witnesses called, the defendant could have brought a motion at an earlier time. Nothing has changed that has impacted the landscape of this trial since the trial was scheduled.
[44] I am also aware that the plaintiff, recognizing the advantages of a judge-alone trial, has not secured adverse costs insurance. She made a conscious decision, from the outset, to avoid the risks that a trial pursuant to the “ordinary procedure” would involve, and I find she could be prejudiced if the case were to be tried under the ordinary rules and she were to suffer a poor result.
[45] However, having chosen to proceed by way of the Simplified Rules, the plaintiff will bear the burden of ensuring that she can present her case and not interfere with the defendant’s right to fairly defend the case. Should the plaintiff have to forego a witness or two or three, that is a consequence she must live with.
[46] However, the defendant must also not be permitted to “run out the clock” by conducting an overly lengthy cross-examination.
[47] This decision should not be taken as holding that a court, in the appropriate case, could not transfer an action commenced under the Simplified Rules to the ordinary rules against the will of the plaintiff. I do not decide that issue and rather suspect that the court can do so in the appropriate case.
[48] However, in this case, I am satisfied that the plaintiff has reduced her witnesses to a manageable number and the defendant’s case will be presented in full. As described by Heeney J. in Sutherland Estate, the defendant’s evidence in chief is admitted from the outset of trial, and it is actually the plaintiff who is prejudiced if she has to forego cross-examination of that evidence should the trial judge so direct because time is dwindling.
[49] I am loathe to impose a “stopwatch” trial upon the trial judge. He or she will ultimately determine how strictly the timetable I am imposing is to be adhered to. He or she will have the benefit of knowing whether there have been time savings earlier in the trial or if a cross-examination is being prolix. He or she will be able to determine whether it is the witness’ responses that are the problem, or the cross-examiner’s questions.
Schedule Imposed:
[50] Thus, I am imposing the schedule attached as Appendix “A”. This is, of course, subject to the discretion of the trial judge.
[51] In arriving at this schedule, I have worked backwards. Thus, the closing arguments of each party, and the threshold motion, will have to occur on Day 5, as that is the last part of the trial. Realistically, I believe that this can all be accomplished in one day, likely as part of the same arguments. I suspect it will not take the entire day, but rather two hours apiece. That would permit an hour or so of spill over from the day before, if required.
[52] Day Four would be the defendant’s case. This includes cross-examination of the Defence Expert on his report, and re-examination. I would allocate two hours to cross-examination of Dr. Muhlstock. Re-examination should not take longer than 30 minutes.
[53] The defendant’s cross-examination should take no longer than 60 minutes, if she is called at all.
[54] Should the plaintiff wish to cross-examine the investigators that conducted the surveillance, it would also take place on Day Four. There was some thought that the plaintiff would forego this cross-examination. I presume that the surveillance will be shown to the plaintiff during her cross-examination, earlier in the trial.
[55] In terms of the plaintiff’s case, it is to be completed by the end of three days and two hours, subject to the discretion of the trial judge. In other words, the Defendant’s case would start at the beginning of the third hour on the fourth day.
[56] The parties will each have no longer than 45 minutes for their opening statement. The Plaintiff’s cross-examination by defence counsel will be no longer than five hours, subject to the court’s discretion. The Plaintiff may be re-examined, but the longer the re-examination, the greater the risk that she is foreclosed from calling all her witnesses.
[57] Thereafter, the plaintiff may call whichever witnesses she chooses, but the defendant shall have up to three hours to cross-examine Dr. Khan (Expert Physiatrist), and up to two hours to cross-examine any further witness. Again, the plaintiff may conduct re-examination, but must recognize that her case is to be completed as of the third hour on Day Four.
[58] The parties are to agree on a Joint Document Brief by no later than November 25, 2024.
[59] The Plaintiff is to deliver her Affidavits for trial by no later than November 18, 2024. The Defendant is to deliver her Affidavits by no later than November 22, 2024. All Affidavits must be filed with the court by no later than November 25, 2024.
[60] The affidavits of the experts may simply include a brief statement that they have attached their CV and their Report.
[61] The plaintiff has leave to file a brief addendum report from Dr. Khan, Mr. Croxson and/or Ms. Lynch, addressing any documentation reviewed by Dr. Muhlstock that they had not been able to review, including the surveillance by no later than November 18, 2024.
[62] If the defendant is not admitting liability on a 100% basis, she is to answer her undertakings by no later than November 5, 2024.
[63] Finally, the parties are to serve and file factums dealing with the law with respect to threshold motions at the outset of trial. The evidence will be filled in at trial.
Costs:
[64] Plaintiff’s counsel suggested that there should be an order of costs against the defendant for failing to answer her undertakings prior to the pre-trial. I agree that this should have been done.
[65] However, the case conferences, and the inability to conduct the originally scheduled pre-trial, were a consequence of the plaintiff’s over-inclusive witness list. The original witness list was entirely unrealistic for a Simplified Rules trial and the defendant’s concern about the length of trial was legitimate.
[66] Accordingly, there shall be no costs of the pre-trial, or the case conferences.
Further Comments:
[67] The schedule set out in Appendix “A” is a roadmap for the parties and is intended to assist the trial judge. He or she may depart from the schedule in his or her discretion.
[68] However, if upon reflection, the plaintiff does not believe that she can conduct the trial within the schedule I have set out, she may, with the consent of the defendant, move to transfer the case to the ordinary procedures. She should do so immediately so that the trial date can be vacated.
“Justice S. Nicholson”
Justice Spencer Nicholson
Date: October 28, 2024
METIVIER V. JACOBS
APPENDIX “A”
DAY ONE
STEP
10:00 am -10:45 am
Plaintiff’s Opening—45 mins
10:45 am- 11:30 am
Defendant’s Opening—45 minutes
BREAK
11:45am-1:00 pm
LUNCH BREAK
2:15 pm-3:30 pm
AFTERNOON BREAK
3:45 pm to End of Day
Plaintiff’s Cross-examination—3hrs 45 mins of 5 hours
DAY TWO
STEP
10:00 am – 11:15 am
Plaintiff’s cross-examination (cont’d) 1hr and 15 mins of 5 hours
BREAK
11:30 am
Re-examination, if any
12:00 pm – 1:00 pm
LUNCH BREAK
2:15 pm – 3:30 pm
AFTERNOON BREAK
3:45 pm – 4:30 pm
4:30 – End of Day
Dr. Khan (Expert Physiatrist) cross-examination up to three hours
Re-examination?
DAY THREE
STEP
10:00 am
Dr. Khan re-exam (cont’d)?
10:30 am- 11:15 am
BREAK
11:30 am – 12:30 pm
12:30 pm – 1:00 pm
Cross-examination of Mr. Croxson—2 hours
Re-exam?
LUNCH BREAK
2:15 pm – 3:30 pm
BREAK
3:45 –4:30
4:30 to End of Day
Cross-examination of Ms. Lynch—2 hours
Re-exam?
DAY FOUR
STEP
10:00 am -12:00 pm
Remainder of plaintiff’s case time permitting
(Judge’s discretion—allows for spare time during plaintiff’s case) (possible cross-examination of investigators if plaintiff wishes)
12:00 pm to 1:00 pm
Defendant’s cross-examination-1 hour
Re-exam
LUNCH BREAK
2:15 pm to 3:30 pm
BREAK
3:45 – 4:30
4:30 to End of Day
Dr. Muhlstock cross-examination- 2 hours
Re-examine
DAY FIVE
STEP
10:00 am to 11:30 am
Judge’s discretion (spare time built in somewhere)
11:30 am to 1:00 pm
LUNCH BREAK
2:15 pm-2:45 pm
Closing Arguments (Threshold included) –2 hours
BREAK
3:00 to end of day
Closing Arguments (Threshold included) -2 hours