Court File and Parties

Court File No.: CV-21-30314 Date: 2025-10-29 Ontario Superior Court of Justice

Between: Alba Sanabria, Plaintiff – and – Nazem Nizam and Hassan Nizam, Defendants

Counsel: Colleen M. Caza, for the Plaintiff Andrea LeDrew, for the Defendants

Heard: October 14, 2025

Endorsement

Kalajdzic J.:

Introduction

[1] The defendants seek leave to file a jury notice almost four years after pleadings closed. The action has not been set down for trial, but discoveries were completed in 2022, and a mediation took place in 2023. Subject to receipt of defence medical reports, the parties are ready for trial.

[2] Where a defendant fails to file a jury notice in accordance with r. 47.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court may grant leave to deliver the notice late if the delay was inadvertent and granting leave would not result in prejudice to the plaintiff.

[3] For the following reasons, I find that the defendants have not met their onus to show that the late notice was inadvertent. I also find that the plaintiff would be prejudiced if leave were granted. The defendants' motion, therefore, is denied.

Litigation History

[4] The claim arises from a motor vehicle accident that occurred on September 27, 2019. Liability has not been admitted.

[5] The plaintiff commenced this action on August 26, 2021. The defendants served a notice of intent to defend on October 4, 2021, and a statement of defence on December 3, 2021. They did not file a jury notice.

[6] From the inception of the action until March 2025, three different lawyers within the same firm represented the defendants. None of these three lawyers took steps to serve, or to seek leave to serve, a jury notice. When the fourth lawyer, Douglas Treilhard, assumed carriage of the file in March 2025 and noticed the absence of a jury notice, he promptly sought instructions to serve a jury notice.

[7] The original lawyer on the file did not swear an affidavit for this motion, but he informed the affiant, Mr. Treilhard, that he did not remember why a jury notice was not served, and that he "assumed" it was through inadvertence. There is no evidence that the failure to file a jury notice was a deliberate decision. At the same time, there is no evidence of instructions from the client to defence counsel to serve a jury notice.

[8] Two other lawyers with carriage of the file between 2021 and early 2025 "did not notice" the absence of a jury notice and also "assumed" pleadings were in order.

[9] In February 2025, Ms. Caza wrote to defence counsel advising that it was her intention to file the trial record if a second mediation was not scheduled.

[10] On March 25, 2025, Mr. Treilhard took over carriage of the defence file. Two months later, he sought the plaintiff's consent to the late filing of a jury notice.

Law and Analysis

[11] The right to a trial by jury is an important substantive right. At the same time, r. 47.01 requires that a jury notice be delivered before the close of pleadings.

[12] In Proper v. Nikore, 2010 ONSC 2307, 101 O.R. (3d) 469, the Divisional Court held, at para. 26, that there are two key factors to consider in determining whether to permit the service of a jury notice after the close of pleadings: (1) the circumstances of the delay; and (2) whether there is prejudice to the other side.

Circumstances of the Delay

[13] With respect to delay, both the length of the delay and the reasons for delay are relevant considerations.

[14] In this case, the delay is significant. The defendant did not seek to file a late jury notice until approximately three-and-a-half years after the close of pleadings. A mediation and discoveries had already taken place, and the plaintiff had filed all of his expert reports. Ms. Caza submits that she was ready to file the trial record.

[15] The defendants state that the cause for the delay was inadvertence. Ms. LeDrew submits that the court should take judicial notice of the insurance industry practice to file jury notices in all motor vehicle accident cases. Other courts have done so: Cipparone v. Royal and Sunalliance Insurance, 2010 ONSC 4528, at para. 2.

[16] I am not prepared to take judicial notice of alleged industry practice and assume inadvertence for two reasons. First, the facts in Cipparone are distinguishable. In that case, Ramsay J. concluded, at para. 4, that the plaintiff's allegations of bad faith and the credibility issues made the case "eminently suitable for a jury." This conclusion informed his determination that the omission of a jury notice must have been inadvertent. I can make no similar inference in the case before me given the absence of submissions and evidence on the 'suitability' of the issues in the litigation for a jury.

[17] Second, Ms. Caza disputes that jury notices are invariably served in such cases. Industry practice, therefore, is not a fact that is so notorious or accepted that no reasonable person would dispute it: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71. Moreover, to accept that jury notices are always served in motor vehicle cases is to assume that the failure to deliver a jury notice in such cases is always inadvertent. As a policy matter, these assumptions render the first part of the Proper v. Nikore test meaningless.

[18] What, then, does the evidence establish in the case at bar? There is no evidence of correspondence between the firm and the insured or insurer indicating a desire for a jury trial. There is simply the second-hand evidence of the original lawyer, who has no specific recollection of this file, who assumes the absence of a jury notice was not intentional.

[19] In addition, there is uncontradicted evidence of the plaintiff that the fact that "this matter was a non-jury case was discussed as a procedural matter prior to the mediation between the lawyers and the mediator." The mediation took place on January 25, 2023. If a judge-alone trial was not intended, I would have expected counsel to have taken steps to serve a jury notice some time in 2023, when the lack of a jury notice was discussed.

[20] In the circumstances of the case before me, I am not satisfied that the omission of a jury notice was a mistake. There have been no "unforeseen developments in the case" to justify the late service of the jury notice: Proper, at para. 27. Coupled with the length of time since the close of pleadings, I find that the circumstances of the delay are unconscionable.

Prejudice to the Plaintiff

[21] Even if I were to conclude the omission was inadvertent, the defendants have not met the second part of the Proper v. Nikore test. The plaintiffs will be prejudiced if leave is granted to deliver a late jury notice.

[22] Since the close of pleadings, Ms. Caza has conducted the case on the assumption that there would be a judge-alone trial. The plaintiff's litigation strategy was shaped by the understanding that the matter was a non-jury case. Ms. LeDrew submits that more specific evidence of prejudice is needed, but some allowances must be made for a degree of vagueness in the plaintiff's affidavit material about such decisions: Proper, at para. 28.

[23] As a matter of common sense, I am prepared to infer that settlement positions at mediation were informed by the proposed length and expense of a trial, both of which are greater in a jury trial.

[24] Further, the plaintiff would be prejudiced by the additional time and money needed to prepare for a jury trial: Borkowski v. Karalash et al., 2023 ONSC 6274, at para. 56. This is a relevant consideration because prejudice is to be assessed at the time of the motion, not as of the time a jury notice could have been served as of right, as Robinson A.J. stated in Kuzyk v. Miggo, 2024 ONSC 5185, at para. 34.

[25] Finally, the plaintiff refers to the completion of discoveries as another point of prejudice. As other courts have found, a "different kind of trial may require a different approach to discoveries": Mahadeo v. Blue Cross Life Insurance Co., 2019 ONSC 6611, at para. 20. I agree.

Order

[26] The defendant's motion for an order extending the time to serve a jury notice is dismissed.

[27] Both counsel filed Bills of Costs. The plaintiff's costs on a partial indemnity basis total $3,896.81, more than $1,000 less than defence counsel's partial indemnity costs. Ms. Caza's fees are reasonable, given her year of call and the time devoted to preparation for and argument of the motion. This motion was not complex, and of moderate importance to the parties. The plaintiff was entirely successful.

[28] Based on the r. 57.01 factors, I order costs to the plaintiff in the amount of $3,896.81, inclusive of fees, disbursements, and H.S.T., payable within 30 days.

Electronically Signed by Justice J. Kalajdzic

Jasminka Kalajdzic Justice

Released: October 29, 2025