Samura v. Scott, 2025 ONSC 2564
Court File No.: CV-18-76112
Date: 2025-04-28
Superior Court of Justice – Ontario
Between:
Barbara Samura (aka Barbara Renner), Plaintiff
and
Kaitlin A. Scott, Defendant
Before: C. MacLeod
Counsel:
Odette Rwigamba, for the Plaintiff (Moving Party)
Alexander Hartwig, for the Defendant (Responding Party)
Heard: 2025-03-25
Endorsement
[1] This is a pleading amendment Motion of a particular type. The Plaintiff seeks to amend her claim to bring this action under Rule 76 of the Rules of Civil Procedure (along with other amendments) despite the fact that this action was set down for trial, has been pre-tried and was supposed to be tried by a jury.
[2] For the reasons that follow, I am dismissing the Motion. I find that the prejudice to the Defendant is too great to be addressed in costs. Moreover, the strategy of seeking this amendment only after failing to settle what was portrayed as a more serious claim is on these facts an abuse of process. For six years the Plaintiff has pursued this action as a regular action, set it down for trial, obtained a trial date for a jury trial and now when the trial was scheduled to commence, she seeks to cap her damages and change the mode of trial. This is not a strategy that should be condoned.
Background
[3] This is a personal injury action commenced in 2018 in relation to a motor vehicle accident that occurred in 2016. The original claim sought damages of $550,000.00. Following production and discoveries, the Plaintiff set the action down for trial in 2022. An eight-week jury trial had been scheduled for February 18, 2025. A previously adjourned pre-trial did not take place until February 13, 2025.
[4] At the pre-trial, it was agreed that the trial would be adjourned, and it was also agreed that five weeks rather than eight would be adequate.[^1] The parties indicated there would be approximately seventeen witnesses including the Plaintiff, the Defendant, investigators, lay witnesses and medical experts.
[5] On February 7 in an email from Mr. Switzer (who will be trial counsel) there was mention for the first time of moving this action to the simplified procedure. Although a five week trial could have started in the time originally reserved for an eight week trial, the Plaintiff indicated at the pre-trial that it would be bringing this Motion to amend the claim and to bring the matter under Rule 76.
[6] The parties agreed to adjourn the trial with costs thrown away to be fixed at $7,500.00.
[7] In support of this Motion, the Plaintiff deposes that she wishes to proceed under Rule 76 because she is unable to tolerate participation in an ordinary trial. In her affidavit, she deposes as follows:
“In the months leading up to trial, I have been working with my lawyers to try to gain the strength, stamina, and mental abilities to be able to testify at my trial. However, despite months of attempts at preparation, I am simply too unwell to be able to attend trial over a period of weeks and give evidence for multiple hours each day over a period of several days. The combination of my physical, cognitive, and emotional disabilities makes it impossible for me.”
[8] She goes on to depose as follows:
“Rather than abandoning my claim altogether, I have taken the advice of my lawyers to amend my claim to limit it to $200,000.00 in order to permit my trial to proceed under the simplified procedure provided in Rule 76 of the Rules of Civil Procedure which I understand will allow me to be able to put my evidence in by way of affidavit, limit the hours and days I will need to testify in person from the witness box and limit the quantity and time in which I must attempt to retain relevant evidence in my memory.”
Discussion & Analysis
[9] There are a number of problems with this Motion and with the Plaintiff’s evidence. Not the least of these is the fact that the Plaintiff’s medical condition and whether or not it causally related to the accident is very much in dispute. If the Plaintiff is as debilitated as her affidavit suggests, then capping the damages at $200,000 and, as the Defendant describes it, “shoehorning” all of the evidence into a five day trial seems highly unlikely to yield a fair or just result for either party.
[10] The Plaintiff will still be required to attend for cross-examination and during the course of the litigation, she was discovered for more than four hours. There is two and a half hours of surveillance which the Defendant expects to introduce at trial. As indicated above, there may be as many as seventeen witnesses.
[11] To be clear, the Plaintiff does not concede that her damages are less than $200,000. She contends that she is severely disabled as a consequence of the accident and is compelled to cap her damages only because she does not believe she can withstand the rigours of a formal trial. If that is true then it would be a failure of the justice system if the court could not devise a method of conducting a trial that would accommodate the needs of a disabled plaintiff. In reality, many of the features of a Rule 76 trial could be available in a regular trial.
[12] There are various steps that could be taken to deal with a litigant who cannot testify in the regular manner. These include any of the orders available under Rule 20.05 which are incorporated by reference into civil pre-trials. There are other options. The Plaintiff has never asked for such accommodations. Moreover, the bald assertion by the Plaintiff that she cannot participate in a regular trial and can participate in a Rule 76 trial is neither persuasive nor even admissible.
[13] More importantly, the affidavit does not deal with the prejudice to the Defendant. There is no offer or proposal to deal with the costs already incurred in pursuing this action. The Plaintiff seems oblivious to the effect of Rule 76.13(1) which would render her liable on a “substantial indemnity basis” for “the costs incurred by the opposing party up to the date of the amendment that would not have been incurred had the claim originally complied” with Rule 76.
[14] This provision of Rule 76 imposes a cost penalty even if the Court grants the amendment. The purpose of the subrule is to partially address the prejudice inherent in a last-minute change to the litigation landscape. In this case, the Plaintiff has pursued ordinary litigation for over six years and now seeks a different mode of proceeding after the action has been called for trial. The Plaintiff has already obligated herself to pay the wasted costs for the adjournment of the trial. If the amendment is granted, she will also be liable for costs incurred by the Defendant in defending this action that would not have been incurred under Rule 76. This will be true even if she is successful at trial, but costs alone may not be sufficient to address all of the prejudice inherent in this last minute change of strategy.
[15] As discussed by this Court in Boniferro v. Jolicoeur, 2024 ONSC 2601, pursuant to Rule 48.04 leave is required to bring a motion such as this after the action has been set down for trial.[^2] Unlike that case, here the amendment is not based on a new assessment that the damages could not exceed the Rule 76 monetary cap. In the case at bar, the move to Rule 76 is sought simply to avoid the rigours of the trial. Nevertheless, leave was refused in Boniferro and as discussed in that decision, the motion would have been refused even had leave been granted. One of the reasons was the loss of the substantive right to trial by jury after years of litigation.[^3]
[16] A similar conclusion was reached in Andres v. Rasheid, 2022 ONSC 3317 and for similar reasons. A motion to move the matter into Rule 76 and strike the jury notice late in the litigation when the trial date was already set was dismissed. In that case, the court also found that the attempt to change the ground rules for the litigation was tactical and should not be allowed.[^4] In Specht v. O’Bumsawin, 2024 ONSC 2137, a similar analysis led to the same conclusion.[^5] As the court noted in the latter decision, “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”. A move under Rule 76 at this point in the litigation would have none of those benefits and may even increase costs by requiring a complete rethinking of the trial strategy and the reduction of evidence to affidavit form.[^6]
[17] As discussed in Ramlingum v. Doe, 2025 ONSC 535, these are not insurmountable obstacles. In that case the court was persuaded that with proper case management the motor vehicle case in question could be tried in five days.[^7] In that case, however, the plaintiff undertook to call only one expert and to take additional steps to streamline the trial. Observing the mandatory language of Rule 26.1 and the fact that trial by jury is not an absolute right, the Court granted the order. Importantly, that action had not been set down for trial, no pre-trial had been held and no trial date had been set. In fact, no expert reports had been exchanged. There was no suggestion that the amendment was for tactical reasons.
[18] In my view this Motion by the Plaintiff is ill founded. It appears to be a tactical decision based only on unwillingness to go through with the jury trial that had originally been scheduled and a failure to request any modifications needed to allow the Plaintiff to participate appropriately.
Conclusion & Ruling
[19] In conclusion, the Motion is dismissed and the matter remains under the ordinary procedure. Leave to bring the motion is denied but I would dismiss the Motion in any event because I find that the Defendant would be prejudiced in ways that cannot be addressed simply by an award of costs.[^8]
[20] The Defendant asked that the Court suspend Pre Judgment Interest (PJI) as a consequence of delay. There are cases in which that is appropriate. I was referred to the decision in Papineau v. Romero-Sierra, 2019 ONSC 4315, for example.[^9] I do not consider it appropriate to make such an order at this time. Section 130(1) of the Courts of Justice Act provides the Court with discretion to disallow interest where it considers it just to do so. In my view, that is a decision better made by the trial judge on a complete record following the verdict.
Costs Thrown Away & Costs of the Motion
[21] Counsel had agreed on the amount the Plaintiff would pay for costs thrown away consequent on adjourning the trial. They did not agree on whether those costs should be payable forthwith or be paid only after the trial. It is consistent with the scheme of the rules that costs be fixed and payable at each step of the proceedings unless another order would be more just. I see no reason why those costs should not be due immediately.
[22] That leaves the costs of the Motion. The Defendant did upload a costs outline but I did not hear costs submissions. I encourage counsel to agree on costs of the Motion but otherwise I will accept written submissions within the next 30 days.
Justice C. MacLeod
Date: April 28, 2025
[^1]: It is worth noting that had the original trial estimate been 5 weeks, an earlier trial date might have been offered when the date was set in May of 2022.
[^2]: Boniferro v. Jolicoeur, 2024 ONSC 2601
[^3]: Supra, paras 19–26
[^4]: Andres v. Rasheid, 2022 ONSC 3317
[^5]: 2024 ONSC 2137
[^6]: Rule 76 trials require significant adjustment to traditional approaches to advocacy. See Balpinar v. Economical Mutual Insurance Company, 2025 ONSC 419 as an example
[^7]: Ramlingum v. Doe, 2025 ONSC 535. With respect to the language of Rule 26.01 see 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42.
[^8]: Horani v. Manulife Financial Corporation, 2023 ONCA 51
[^9]: 2019 ONSC 4315