Court File and Parties

Court File No.: CV-24-00248-00

Date: November 3, 2025

Superior Court of Justice - Ontario

Re: Joseph Belfiori, Plaintiff

And: John Doe and Co-operators General Insurance Company, Defendants

Before: Muszynski J.

Counsel:

• Robert Murphy, for the Plaintiff
• Taras Kuper, for the Defendant, Co-operators General Insurance Company

Heard: October 9, 2025

Decision on motion to amend statement of claim, continue under Rule 76, and strike the jury notice

Introduction

[1] This motion involves a request for leave to amend a statement of claim to limit the plaintiff's claim for damages to $200,000 and to continue the action under the simplified procedure. If the amendment is granted, the plaintiff seeks an order striking the defendant's jury notice.

Background

[2] This action arises out of a motor vehicle accident that took place on August 6, 2023, involving the plaintiff, Joseph Belfiori. Mr. Belfiori alleges that the collision occurred after an oncoming vehicle veered into his lane of traffic causing him to swerve his motorcycle to avoid colliding with the vehicle. As a result of the evasive maneuver, Mr. Belfiori fell off his motorcycle and sustained orthopedic injuries.

[3] The oncoming vehicle that Mr. Belfiori holds responsible for his accident did not stay at the scene. Mr. Belfiori initiated this action against the driver of the unidentified vehicle (John Doe) and his own auto insurer (the Co-operators) pursuant to the unidentified automobile provisions of the policy.

[4] The statement of claim was issued on June 19, 2024. In the original statement of claim, Mr. Belfiori sought $1,000,000 in damages.

[5] It is agreed that in the circumstances of this case, the auto insurance available to Mr. Belfiori is the statutory minimum limit of $200,000 unless he can provide "other material evidence" of the unidentified automobile that corroborates his own evidence. If he can provide such evidence, $1,000,000 in insurance becomes available to him pursuant to the OPCF-44R (the Family Protection Endorsement).

[6] On August 6, 2024, Co-operators served a statement of defence and crossclaim against the unidentified driver and a jury notice. In the statement of defence, Co-operators pleads the following:

a. Mr. Belfiori has not provided "other material evidence" and is therefore not entitled to coverage under the OPCF-44R; and

b. The action should have been commenced under simplified procedure.

[7] Examinations for discovery of Mr. Belfiori took place on December 12, 2024. Mr. Belfiori was the only one examined. The examination lasted for 4 hours and 48 minutes.

[8] Mr. Belfiori acted to obtain evidence to corroborate his account of the accident. He hired a private investigator to try and locate witnesses to the accident (on February 10, 2025). He also brought a Wagg motion for a complete and unedited copy of the police investigation file (on March 14, 2025).

[9] The private investigator was unable to identify any witnesses to the accident. The police investigation file was received on May 9, 2025. It does not mention any physical evidence indicating the involvement of an unidentified automobile nor does it list any independent witnesses.

[10] Recognizing that Mr. Belfiori would not be able to put forward satisfactory corroborating evidence as to the existence of another vehicle, and therefore ineligible to claim under the OPCF-44R, counsel for Mr. Belfiori wrote to Co-operators on May 27, 2025, and requested consent to amend the statement of claim to limit the damages sought to the $200,000 statutory limit and to continue the action under simplified procedure.

[11] Co-operators refused to consent to the amendment.

[12] The action has not been set down for trial.

Issues

[13] Should the plaintiff be granted leave to amend the statement of claim to limit the plaintiff's claim for damages to $200,000 and continue the action under simplified procedure? If so, should the jury notice be struck?

Positions of the Parties

[14] The plaintiff takes the position that since there is no possible way to recover more than the $200,000 statutory limit, the amendment should be allowed and the action should continue under simplified procedure, which is mandatory for actions involving monetary claims under $200,000. The plaintiff submits that they will have no choice but to streamline their case so that it is completed in five days or less by restricting the number of witnesses called. Further, the plaintiff takes the position that if the amendment is allowed and the action is continued under simplified procedure, the jury notice must be struck.

[15] Co-operators acknowledges that the maximum amount that the plaintiff can recover in this action is $200,000. Co-operators opposes the motion on the basis that it is brought prematurely and without consideration of how it can be tried in five days or less. Co-operators concedes that if the amendment is allowed, the jury notice must be struck. For this reason, Co-operators submits that it would suffer non-compensable prejudice by losing the substantive right to proceed to trial with a jury.

Analysis

[16] The issues of the amendment to limit the claim to $200,000, continuation under simplified procedure, and striking the jury notice are interrelated.

Simplified Procedure

[17] Simplified procedure is governed by Rule 76. The policy and purpose of simplified procedure is to "reduce the cost of litigating claims of modest amounts by reducing the amount of procedure available in such cases": see Michael Foulds & Derek McKay, Watson & McGowan's Ontario Civil Practice 2025 (Toronto: Carswell, 2024) at p. 1610. The objective is clear, the litigation process should be proportionate to the amount in dispute.

[18] Simplified procedure differs from ordinary procedure in several respects. For instance, there are limits on oral discovery, jury trials are not available, there are limits on claims for costs, and trials are presumptively to take place in a summary fashion with parties adducing evidence from their witnesses in affidavit form. Another key feature of simplified procedure is that trials must be limited in duration to a maximum of five days.

[19] There are provisions in the Rules for continuing an action commenced in ordinary procedure in simplified procedure. Rule 76.02(7) states:

An action that was not commenced under this Rule, or that was commenced under this Rule but continued under the ordinary procedure, is continued under this Rule if, … the plaintiff's pleading is amended under Rule 26 to comply with subrule (1).

[20] Subrule (1) sets out the circumstances where the use of simplified procedure is mandatory. This includes circumstances where the plaintiff's claim is exclusively for money of $200,000 or less. Specifically, it provides:

(1) The procedure set out in this Rule shall be used in an action if the following conditions are satisfied:

1. The plaintiff's claim is exclusively for one or more of the following:

i. Money.

ii. Real property.

iii. Personal property.

2. The total of the following amounts is $200,000 or less exclusive of interest and costs:

i. The amount of money claimed, if any.

ii. The fair market value of any real property and of any personal property, as at the date the action is commenced. [ emphasis added ]

[21] It is notable that the consent of a defendant is not required to continue an action under simplified procedure if the statement of claim is amended to bring the pleading in compliance with Rule 76.02(1).

[22] In this case, the proposed amendment by the plaintiff would limit the monetary claims to $200,000 and render the pleading compliant with Rule 76.02(1). If leave to amend the pleading is granted, this action must continue under simplified procedure.

Amendment of Pleadings

[23] Rule 26.01 governs the amendment of pleadings:

On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[24] It is up to the party opposing a motion for leave to amend a pleading to demonstrate that the amendment would result in non-compensable prejudice: see Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538 at para. 36.

[25] It is important to keep in mind that there are mandatory cost consequences involved with amending a claim to continue under simplified procedure. Rule 76.13(1) states:

Regardless of the outcome of the action, if this Rule applies as the result of amendment of the pleadings under subrule 76.02 (7), the party whose pleadings are amended shall pay, on a substantial indemnity basis, 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 subrule 76.02 (1), (2) or (2.1), unless the court orders otherwise.

[26] Co-operators submits that leave to amend should not be granted because presently there is no realistic plan as to how the action will be tried in five days or less and because amendment into simplified procedure would result in the jury notice being struck.

Limiting the Length of Trial

[27] I reject Co-operators' submission that this matter should remain in ordinary procedure because it is unknown at this point whether the trial will take longer than the five-day limit prescribed for simplified procedure trials: Rule 76.12(2).

[28] Firstly, Co-operators cannot point to any evidence of how limiting the length of the trial to five days would result in non-compensable prejudice in the circumstances of this case.

[29] Secondly, unlike cases relied upon by Co-operators in advancing this position, the plaintiff has put forward evidence of how the trial could be completed in under five days.

[30] More importantly, except in prescribed circumstances (of which this is not one), if a plaintiff advances a monetary claim for less than $200,000 the Rules require that simplified procedure shall be used. There is no exception for cases that would be better suited to trials longer than five days.

[31] Once an action is commenced in, or continued in, simplified procedure, the requirements of Rule 76 must be followed to keep the litigation proportionate to the amounts in dispute. It is the expectation that parties litigating in simplified procedure will be mindful of the principle of proportionality and work collaboratively with one another, or with the assistance of case management processes, to ensure the trial can be completed within the five-day limit.

[32] The plaintiff in this case acknowledges this reality and states that he is prepared to limit the number of witnesses that he calls such that the trial can be completed in less than five days.

[33] In my view, the estimated length of trial should not factor into whether a pleading amendment should be permitted, and an action continued in simplified procedure, unless it is related to consequential non-compensable prejudice. Parties litigating monetary disputes under $200,000 have an obligation to ensure that the court processes consumed are in balance with the amount in dispute.

[34] I agree with the comments of Heeney J. in Sutherland Estate v. London Health Sciences Centre, 2022 ONSC 5942:

Given that only $200,000 is, in fact, at stake, it is in the interests of justice to limit the parties to 5 days for their trial, rather than expending as much as 10 additional days or more to have an ordinary trial. This will free up those additional judicial resources to try other cases. And since r. 1.04 favours the "least expensive" determination of a case, it need hardly be said that a 5-day trial will be considerably cheaper than one lasting as much as three times that long: at para 24.

[35] Finally, it is disingenuous of Co-operators to have pleaded that the case should be governed by the simplified procedure, but then to resile from that position (without any compelling reasons for doing so) by opposing the plaintiff's motion to move the case into that procedure.

[36] In the circumstances of this case, Co-operators has not put forward any evidence that it would suffer prejudice that could not be compensated for by costs or an adjournment by limiting the length of trial of this action to a maximum of five days.

Striking the Jury Notice

[37] The availability to proceed to trial before a judge and jury in a civil action is governed by Rule 47.01 and s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA).

[38] Rule 47 of the Rules 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.

47.02 (1) A motion may be made to the court to strike out a jury notice on the ground that,

(a) a statute requires a trial without a jury; or

(b) the jury notice was not delivered in accordance with rule 47.01.

(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.

(3) Where an order striking out a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.

[39] Section 108 of the CJA states:

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.

(2) The issues of fact and the assessment of damages in an action shall be tried without a jury in the following circumstances:

1. The action involves a claim for any of the following kinds of relief:

i. Injunction or mandatory order.

ii. Partition or sale of real property.

iii. Relief in proceedings referred to in the Schedule to section 21.8 .

iv. Dissolution of a partnership or taking of partnership or other accounts.

v. Foreclosure or redemption of a mortgage.

vi. Sale and distribution of the proceeds of property subject to any lien or charge.

vii. Execution of a trust.

viii. Rectification, setting aside or cancellation of a deed or other written instrument.

ix. Specific performance of a contract.

x. Declaratory relief.

xi. Other equitable relief.

xii. Relief against a municipality.

2. The action is proceeding under Rule 76 of the Rules of Civil Procedure .

[40] Rule 47 and s. 108 of the CJA establish that the right to a civil jury trial is not absolute. There are many instances where jury trials are not available due to statutory prohibition, including in actions proceeding in simplified procedure.

[41] This is not a stand-alone motion to strike a jury notice. If leave to amend is granted to limit the monetary claim to $200,000, the matter must proceed in simplified procedure. A natural consequence of proceeding in simplified procedure is that the jury notice must be struck.

[42] The key consideration is whether striking the defendant's jury notice constitutes non-compensable prejudice that informs the question of whether leave to amend the statement of claim should be granted.

[43] In this case, Co-operators does not put forward any specific evidence of non-compensable prejudice that would flow from striking the jury notice, such as having to abandon a particular litigation strategy, or consequences of having to adjourn an imminent trial. The only non-compensable prejudice alleged is the loss of the substantive right to a trial by jury.

[44] In Girao v. Cunningham, 2020 ONCA 260, the Court of Appeal recognized the fundamental right to a civil jury but also noted that the right "is not absolute and must sometimes yield to practicality": see para. 171.

[45] Similarly, in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, Myers J. noted: "The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is "just" as we currently comprehend that term": see para. 32.

[46] Co-operators would have known when it delivered its defence that it would be foregoing the option of a jury trial if the case was, as Co-operators pleaded it should be, governed by the simplified procedure. It cannot now credibly complain about the loss of that option in the absence of specific evidence of how this is the case.

[47] In the circumstances of this case, I find that the striking of a jury notice does not amount to non-compensable prejudice that should deny the plaintiff the ability to pursue the amendment sought.

Conclusion

[48] When faced with a motion to amend a statement of claim to limit monetary damages to $200,000 and continue in simplified procedure, the striking of a jury notice being a consequence of such an amendment, the chief consideration is whether the amendment would result in non-compensable prejudice to the defendant. The loss of the substantive right to a trial by jury alone does not amount to non-compensable prejudice in this context.

[49] Here, the plaintiff was diligent in investigating the identity of the unknown vehicle he alleges caused the accident. When it became clear that he would not be able to supply satisfactory evidence to be able to access the OPCF-44R, he alerted Co-operators and requested consent to amend his pleadings to limit his claim to $200,000 and continue under simplified procedure. Despite specifically pleading that the plaintiff's claim was limited to $200,000 and that the action should be continued in simplified procedure in the statement of defence and crossclaim, Co-operators resisted the plaintiff's motion. [1]

[50] There is no suggestion that the plaintiff's motion was brought for any tactical reason that should be sanctioned as was the case in Samura v. Scott, 2025 ONSC 2564. The motion was brought early in the proceedings. Co-operators has not retained any experts. The action has not been set down for trial. Once the action is continued under simplified procedure, the parties will be obligated to follow the streamlined process set out under Rule 76 which should be encouraged given the amount in dispute.

[51] Co-operators has failed to show how the amendment and the consequential mandatory continuation of the action in simplified procedure would result in any non-compensable prejudice.

[52] The plaintiff's motion is granted. An order shall issue as follows:

1. The plaintiff is granted leave to amend the statement of claim to limit his claim to $200,000 in damages and continue the action in simplified procedure.

2. Co-operators' jury notice is struck.

Costs

[53] The issue of any increased costs incurred by Co-operators as a result of the action having been commenced in ordinary procedure, up to the date of the release of this endorsement allowing the amendment, shall be reserved to the trial judge.

[54] At the hearing counsel advised that they were in agreement that the successful party on the motion would be entitled to $4,000 for costs of the motion.

[55] Costs of the motion are therefore awarded to the plaintiff from Co-operators fixed in the amount of $4,000 inclusive of HST and disbursements forthwith.

Muszynski J.

Date: November 3, 2025

[1] I note the striking similarity to the case of Ramlingum v. Doe, 2025 ONSC 535, also involving Co-operators.