CITATION: Kabakwu v. YCC No. 164 et al., 2026 ONSC 4776
COURT FILE NO.: CV-18-00602806-0000
DATE: 20260807
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GLADYS KABAKWU, Plaintiff
AND:
YORK CONDOMINIUM CORPORATION NO.164; NADLAN-HARRIS PROPERTY MANAGEMENT INC.; LIRON DANIELS; PAOLO DE LEO; HOOD WAHELEYE; NOUN TOEUTH; MANISH BHATT; DORRETE WADE; ELITE TACTICAL FORCE SECURITY INC.; DIANE (SECURITY) - PARTY REMOVED PER AMENDED CLAIM, Defendants
BEFORE: Paul B. Schabas J.
COUNSEL: Gladys Kabakwu, Self-represented Plaintiff
Mohiminol Kandaker, for the Defendants
HEARD: July 31, 2026
ENDORSEMENT
[1] This is a motion to strike the plaintiff’s Jury Notice dated September 3, 2019.
[2] The action has a history.
[3] Between 2017 and 2019, the plaintiff issued approximately nine actions against the defendants. On May 24, 2019, and August 12, 2019, Archibald J. signed orders consolidating all nine actions into one action, and directed that it be heard and tried together, or one after the other, with a related action, Choi Van Le v York Condominium Corporation No. 164 et al. (Court File No. CV- 17-573899). The plaintiff consented to both orders, which also directed that the trial or trials of the two proceedings proceed to a summary trial process.
[4] In the fall of 2019, the plaintiff amended her statement of claim in what is now titled an Amended Amended Consolidated Statement of Claim and served a Jury Notice. A motion to strike the Jury Notice was to be heard in March 2020 but did not proceed as the plaintiff no longer had counsel and wanted time to retain new counsel.
[5] The pandemic intervened and no steps were taken to move the matter forward from 2020 to 2024. The action was administratively dismissed for delay in December 2024.
[6] The plaintiff sought a Status Hearing to set aside the dismissal. The parties appeared before McGraw A.J. on April 15, 2025, who adjourned the matter to May 30, 2025. McGraw A.J.’s April 15, 2025 endorsement stated:
These actions are related and are being tried together. The Plaintiffs have delivered a draft timetable. The Plaintiffs have confirmed that they will remain self-represented and will not be seeking to amend their pleadings. These matters are adjourned to Status Hearing Assignment Court before me on May 30, 2025 to provide time for Defendants’ counsel to obtain instructions and for the parties to have further discussions regarding next steps.
[7] On May 30, 2025, the parties reappeared before Associate Justice McGraw, who ordered that the Jury Notice would need to be dealt with before the parties could determine a timeline for proceeding with the action. McGraw A.J. also ordered the parties to continue discussions with the view of resolving the issue, failing which the parties could reserve another attendance before him after the motion to strike the Jury Notice had been determined. Associate Justice McGraw's endorsement stated:
The Defendants advise that they will agree to a timetable if the Plaintiffs consent to set aside their Jury Notice. The Plaintiffs will not agree. The Defendants have brought a motion to set aside the Jury Notice which is scheduled for January 2026. The Plaintiffs have also advised that they intend to amend their Statements of Claim. The parties shall continue their discussions regarding the Jury Notice and the amendments to the Statement of Claim with a view to resolving them so that this action may move forward. If they cannot, then they may schedule another attendance before me after the Jury Notice motion has been determined. The Registrar shall not dismiss this action for delay in the interim.
[8] The parties were unable to resolve their differences. Despite professing a desire to amend her pleading before McGraw A.J., which she repeated before me, the plaintiff has taken no steps to amend her statement of xclaim to resolve the Jury Notice issue since the appearance on May 30, 2025. Although self-represented, the plaintiff is an experienced litigant and would have had not difficulty amending her claim had she wished to do so.
[9] Accordingly, the defendants have brought this motion to strike the Jury Notice, which must be heard by a judge pursuant to Rule 47.02 of the Rules of Civil Procedure.
[10] The defendants rely on section 108 of the Courts of Justice Act. Subsection 108(2) prohibits jury trials where, among other things, the plaintiff seeks declaratory or equitable relief. Subsection 108(3) provides the court with broad discretion to strike a jury notice, which is sometimes exercised when a matter is deemed to be too complex or otherwise inappropriate to be resolved by a jury. The burden is on the party seeking to strike the jury notice.
[11] The plaintiff’s Amended Amended Consolidated Statement of Claim asserts a number of causes of action and prayers for relief. Several of the claims for relief would require the court to issue declaratory relief. These include the following, taken from paragraph 1 of the pleading:
xxi. An Order to rescind/discharge the lien the Corporation placed against the plaintiff’s property
xxii. An Order to rescind the special assessment fee levied against the plaintiff;
xxiii. An Order to rescind the legal fees levied against the plaintiff;
xxiv. A[n] Order that [t]he plaintiff be exempt from contributing her proportional share of her common expenses to any amount that this Honourable Court orders the condominium corporation to pay her.
[12] Declaratory relief has been described as “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”: The Roman Catholic Episcopal Corp v AXA Insurance Canada, 2016 ONSC 4061 at para. 23; MacNeil (Litigation Guardian of) v. Bryan, 2009 CarswellOnt 3207 at para. 19 citing from The Declaratory Judgment, 3rd edition, (London: Sweet & Maxwell, 2002) by Lord Woolf and Jeremy Woolf. It has also been emphasized that a judge considering a motion to strike “must go beyond the mere form of the prayer for relief to ascertain whether the claim is in pith and substance a claim for declaratory relief”: AXA at para. 22; Thibault v. The Empire Life Insurance Company, 2012 ONSC 1723 at paras. 7 – 11.
[13] In AXA, Raikes J. summed up the situation this way at paras. 24 and 25:
If the claim is found to be in pith and substance a claim for declaratory relief, there is no discretion to permit the action to proceed to trial by jury; s. 108(2) of the CJA contains mandatory language prohibiting trial by jury. That determination is made by reference to the pleadings which define the facts and matters in issue in the litigation.
The same approach applies to a determination of whether the claim seeks specific performance or other equitable relief. The court does not stop at a consideration of the prayer for relief but must consider the claim as a whole to determine whether in pith and substance the claim is one for specific performance or other equitable relief.
[14] A review of the pleading discloses that the plaintiff is seeking, among other things, damages related to an alleged improper or invalid lien placed on the plaintiff’s condominium unit. The plaintiff also pleads that “she has been unable to sell her unit as a result of the lien.” To succeed on this claim, the plaintiff must persuade a judge that the lien is invalid and should be set aside. This is classic declaratory relief.
[15] Similarly, and related to the lien, the request to rescind the special assessment fee. This is a request for a declaratory order to rescind a fee imposed on the plaintiff by the defendant condominium corporation.
[16] The same may be said for the relief sought in paragraphs xxiii and xxiv of the claim, quoted above. Indeed, paragraph xxiv calls for forward-looking declaratory relief.
[17] This is sufficient to resolve the motion and order that the Jury Notice be struck.
[18] However, there are other reasons to strike the Jury Notice.
[19] The plaintiff has also pleaded breach of fiduciary duty by the defendants. This is equitable relief which cannot be heard by a jury: Canadian Imperial Bank of Commerce v. Weaver Simmons Barristers and Solicitors, 2005 CanLII 56196 (ON SC) at para. 19.
[20] The plaintiff also originally pleaded damages for oppression, which is also an equitable remedy. While she has removed an explicit claim for oppression, arguably the relief sought in paragraph xxiv, seeking to be exempt from paying common expenses, might only be available if oppression was established.
[21] In these circumstances, it is not necessary for me to consider the defendants’ submissions that I should exercise my discretion under subsection 108(3) of the CJA to strike the Jury Notice.
[22] I have considered whether the motion is premature, or should be deferred to the trial judge, as there are circumstances where a trial can proceed before a jury on some issues but not on others; in particular, where there is a claim for equitable relief such as a breach of fiduciary duty, and other claims that can be heard by a jury. That exists here, as the plaintiff is also seeking damages for, among other things, defamation, conspiracy to injure, harassment and intimidation, breach of privacy, and assault and battery.
[23] However, the pleading of these other torts is vague and difficult to follow. The essence of the plaintiff’s claim, and many of the facts pleaded in detail, relates to fees, arrears, and the lien, all imposed by the condominium corporation. By pleading so many different things, the plaintiff has created a complicated and complex action which would support striking the Jury Notice under s. 108(3).
[24] In addition, striking the Jury Notice now is appropriate. It is clear that the multiplicity of claims, rooted in a dispute over fees and a lien, will make it difficult to conduct a trial in which the jury determines some issues and the judge others, and creates the very real risk of inconsistent findings. This risk of inconsistent verdicts is heightened where, as here, there is a related action with similar issues, to be tried with, or immediately following, this action, in which no jury notice has been served. Accordingly, while the “wait and see” approach is appropriate in some cases, in my view it is not appropriate here: Kempf v. Nguyen, 2015 ONCA 114 at paras. 63 – 65.
[25] My conclusion is supported by the decision of Feldman J. (as she then was) in Oliver v. Gothard, 1992 CarswellOnt 352, (1992), 1992 CanLII 7643 (ON CTGD), 10 O.R. (3d) 309 (Gen. Div.) where she stated at para. 13: “In my view, because the substance of a major portion of the trial will be matters which in the normal course would not be determined by a jury and involve judicial discretion and mixed questions of fact and law, it is inappropriate for those issues to be tried by a jury in this action.”
[26] Here, there are many issues that cannot be determined by a jury which overlap with those that can, making the case to strike the Jury Notice compelling.
[27] There is also the history of the action. Several years ago, when consolidating all the actions, Archibald J. ordered a summary trial lasting 5 days to resolve this dispute. I have been given no reason why that order should not stand, which is inconsistent with having a jury trial.
[28] Furthermore, and perhaps for similar reasons, McGraw A.J. directed that the issue of the validity of the Jury Notice be determined now.
[29] The motion is granted. The Jury Notice is ordered struck out.
[30] The defendants seek costs on a full indemnity basis, citing the well-accepted principle that in condominium cases most, if not all, of the unit owners are blameless and should not have to bear the legal costs relating to a dispute by one of the unit owners: York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914 at para. 14; Wentworth Condo Corp. and Brendan Taylor, 2014 ONSC 59 at paras. 23 and 24; Castle Hill Neighbourhood Association v. Morse, 2026 ONSC 895 at paras. 2 and 4.
[31] In my view the rationale for full indemnity costs applies here. The plaintiff shall pay costs of the motion to the defendants in the amount of $17,381.66.
Schabas J.