CITATION: Loveless et al v. Club Medd Bowl, 2026 ONSC 2232

COURT FILE NO.: CV-22-000007-00

DATE: April 15, 2026

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan Loveless and Gregory Loveless, Plaintiffs

AND:

Club Medd Bowl, Defendant

BEFORE: Muszynski J.

COUNSEL: Angela James, for the Plaintiffs

Kate Martini, for the Defendant

HEARD: March 24, 2026

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

1This 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

2This action arises out of a fall that the plaintiff, Susan Loveless, alleges occurred while a patron at the defendant’s bowling alley on or about January 11, 2020. The plaintiff, Gregory Loveless, brings his claim pursuant to the Family Law Act R.S.O. 1990, c. F. 3.

3Before litigation was commenced, Ms. Loveless met with a lawyer. However, by the time that her statement of claim was issued on January 10, 2022, she was self-represented. The claim was commenced in the ordinary procedure. In the original statement of claim, Ms. Loveless sought $500,000 in damages and her spouse sought FLA damages in the amount of $100,000.

4The defendant served its notice of intent to defend and jury notice on February 2, 2022.

5The plaintiffs hired a lawyer, Angela James, to represent them in the spring of 2022. Examinations for discovery took place at the end of 2022. Over the next eighteen months the parties worked towards answering undertakings and counsel engaged in fairly frequent discussions about the file.

6The evidence of the plaintiffs is that, at the time that the statement of claim was issued, Ms. Loveless had stopped working due to accident-related injuries. By the time that examinations were complete, and undertakings compiled with, it became clear that Ms. Loveless had returned to work in some capacity. Ms. Loveless’ return to work necessarily reduced, if not eliminated, her economic loss claim. Accordingly, in mid-2024, counsel for the plaintiffs requested the defendant’s position on continuing the action under simplified procedure.

7Counsel for the defendant responded saying that he would seek instructions from his client upon receipt of the motion material. Motion material was served in early 2025 after inquires were made about the impact of such an amendment on adverse costs insurance. There was a change in defence counsel and additional time was requested so that instructions could be obtained. Ultimately, new counsel for the defendant advised that the motion would be opposed.

8Only one expert report has been served in this case, a liability report by the defendant. The plaintiffs do not intend to obtain a responding report and do not intend to obtain any expert reports on the issue of damages.

9The action has not been set down for trial.

Issues

10Should the plaintiffs be granted leave to amend the statement of claim to limit the 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

11The parties agree that a consequence of the proposed amendment of the statement of claim to limit the prayer for relief to $200,000 is that the jury notice must be struck.

12The plaintiffs rely on the recent case of Belfiori v. Doe, 2025 ONSC 6166 to support their position that striking of a jury notice alone does not amount to non-compensable prejudice to justify denying an amendment request. The plaintiffs submit that re-assessing a claim’s value should be encouraged as more information becomes available during litigation. In this regard, the plaintiffs deny that this motion has been brought for “tactical reasons” but rather because of a change in circumstances of the plaintiffs.

13The defendant’s main opposition to the proposed amendment is the loss of the substantive right to proceed to trial by jury. The defendant further takes the position that the trial will take longer than the strict five-day limit imposed for trials under the simplified procedure.

Analysis

Simplified Procedure

14Simplified 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.

15Simplified 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.

16There 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).

17Subrule (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]

18The 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).

19In 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

20Rule 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.

21It 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.

22There are mandatory cost consequences involved with amending a claim to continue under simplified procedure which alleviates any financial consequence associated with the amendment. 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.

23In this case, the defendant submits the amendment should be denied on the basis that it would result in non-compensable prejudice, including: the trial cannot be completed in five days or less; the action has been defended thus far as a jury trial; and most significantly, the defendant would lose the ability to proceed to trial by jury.

i) Length of trial

24I reject the defendant’s submission that this matter should remain in ordinary procedure because the trial will take longer than the five-day limit prescribed for simplified procedure trials.

25Firstly, this case involves one expert witness, one or two treating health care providers and a few lay witnesses. I cannot comprehend how a trial involving this number of witnesses would take more than five days.

26Regardless, as I noted in Belfiori, parties bear responsibility for ensuring that the litigation process is proportionate to the amount in dispute: see paras 30 - 34. Essentially, if the amount at issue is less than $200,000, the parties must govern themselves accordingly.

27Finally, the defendant has not put forward any specific evidence that limiting the trial of this action to five days would result in non-compensable prejudice.

ii) Jury notice

28As I noted in Belfiori, “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”: see para 41.

29The question that must be addressed therefore is whether the striking of the jury notice will result in non-compensable prejudice.

30The 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).

31Rule 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.

32s. 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.

33Rule 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.

34In Girao v. Cunningham, 2020 ONCA 260, the Court of Appeal recognized the fundamental right to a civil jury but also noted that the right “must sometimes yield to practicality”: see para. 171.

35Similarly, 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.

36In my view, the focus must be on the specific non-compensable prejudice that would result if the jury notice were to be struck.

37I accept, for example, that there are circumstances where the mode of trial could impact litigation strategy and result in prejudice if the mode of trial was changed mid-litigation. A particular expert might be chosen that performs better in front of a jury whereas, had the trial been judge alone, another expert might have been preferred. I also accept that a litigant may retain a particular lawyer or law firm because of the mode of trial.

38In this case the submissions of the defendant were entirely theoretical. There is no evidence that any particular strategy was employed that was unique to trial by jury in this case and no other specific evidence of non-compensable prejudice that would flow from striking the jury notice. The only non-compensable prejudice alleged is the loss of the substantive right to a trial by jury.

39The striking of a jury notice standing alone without specific evidence how it results in non-compensable prejudice is insufficient to deny the plaintiff the ability to pursue the amendment sought.

Conclusion

40Litigants should be encouraged to commence their civil claims in the appropriate litigation stream, the current options being small claims court, simplified or ordinary procedure. However, it would be wrong to overlook that cases can evolve over the lifespan of litigation. Litigants should be encouraged to review their claims and, where it would not cause non-compensable prejudice, be permitted to make amendments to ensure the litigation process is proportionate to the issues in dispute.

41In this case, the plaintiffs were self-represented when the statement of claim was issued. The landscape of the damages claim changed over time. The case has not been set down for trial. Only one expert has been retained, and only on the issue of liability. No additional expert reports are contemplated. Further, there is no evidence of specific, non-compensable prejudice to the defendant should the amendment be permitted.

42The plaintiff’s motion is granted. An order shall issue as follows:

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

2. The defendant’s jury notice is struck.

Costs

43The issue of any increased costs incurred by the defendant because of the action having been commenced in ordinary procedure is reserved to the trial judge.

44At the hearing counsel advised that they would likely be able to reach an agreement on the issue of costs of this motion. They are encouraged to do so. If they are unable to resolve the issue of costs, counsel may contact the trial coordinator and further direction will be provided with respect to filing brief cost submissions.

Muszynski J.

Date: April 15, 2026

CITATION: Loveless et al v. Club Medd Bowl, 2026 ONSC 2232