The recent superior court motion decision in George v Alemu, 2023 ONSC 3644 affirms that courts can deny leave under r.48.04(1) if the moving party cannot meet the “interests of justice” test. The decision also affirmed that arguments concerning the efficiency and costs of a jury trial will have little weight on their own in determining whether a jury notice should be struck.


The Plaintiff, Ms. George claims that she suffered injuries in a motor vehicle accident on July 19, 2014 and sued for damages as a result.  The action was commenced under the Simplified Rules in July of 2016, prior to the “new” Simplified Rules taking effect on January 1, 2020.  RBC and Aviva (who had been sued under the uninsured provisions of Ms. George’s own policy) served a jury notice in July 2018, and the action had been set down for trial. Thereafter, Ms. George moved for an order striking the jury notice. Ms. George first had to seek leave under r. 48.04(1) to bring the motion. RBC and Aviva argued that leave should not be granted, and if granted, jury notice should not be struck. Madam Justice Bell agreed with the defendants and denied Ms. George leave, and further found that had leave been granted, she would not have struck the jury notice.

Leave Not Granted

Bell J. cited Horvani v Manulife Financial Corporation, where the Court of Appeal considered two tests to determine leave under r.48.04(1). The first test requires the moving party to show “a substantial or unexpected change in circumstances such that a refusal to make an order would be manifestly unjust”. The second test requires the moving party to show leave is necessary for the “interests of justice”. Bell J. decided that Ms. George did not meet the lower bar of the second test, and therefore the first test did not need to be considered. Bell J. determined that there was no evidentiary support for Ms. George’s motion for leave.

Jury Notice is Not Struck

Although leave was not granted, Bell J went on to give her reasons for why the jury notice should not be struck in any event.  She highlighted the fact that the amended rule 76 that came into force on January 1, 2020, restricting simplified procedure cases to a trial by judge alone, and explicitly does not apply to a jury notice served prior to January 1, 2020The jury notice in this caes was served by RBC and Aviva in July of 2018. Bell J. therefore found that RBC and Aviva had a substantive and vested legal right to a civil jury trial.

Bell J. further noted that in Louis v. Poitras, the Court of Appeal decided that a judge considering a motion to strike a jury notice has discretion to determine the mode of trial. However, that discretion is limited to considering whether justice is better served by trying a case with or without a jury (Cowles v Balac). 

Ms. George’s sole argument in support of striking the jury notice was that it would be more efficient to proceed by judge alone in that the additional costs of a jury trial would be a drain on judicial reasons in circumstances where these costs could exceed the maximum damages that could be awarded under rule 76. Ms. George relied on the decision of Muszynski J. in Lightfoot v. Hodgins. In Lightfoot, Muszynski found that it would offend the interest of justice and principles of proportionality to require a jury trial. Bell J went on to distinguishe Lightfoot from Ms. George’s case for the following reasons.  First, in Lightfoot, both parties agreed the action was well suited for the summary trial process. Aviva and RBC never made such admissions. Second, the decision in Lightfoot,  was made in the context of the challenges to the justice system during  the first year of the pandemic, and resulting delays. Most importantly, Muszynski J. had emphasized in Lightfoot, at para. 73 that “I should not be taken as saying that efficiency and reduced trial time alone should justify striking a jury notice. It is no secret that jury trials are more time consuming and more expensive than non-jury trials”..

Madam Justice Bell  concluded her reasons as follows:

Ms. George has advanced arguments based on efficiency, reduced trial time and reduced costs, but more is required to take away RBC and Aviva’s substantive right to a jury trial, preserved under the Courts of Justice Act and Rule 76 because they delivered a jury notice prior to January 1, 2020. Ms. George has failed to advance a compelling reason for the jury notice to be struck and I would decline to do so.      

This is an important and helpful decision upholding the right to a civil trial by jury generally, and specifically where a jury notice was delivered under Rule 76 prior to January 1, 2020. A jury trial will always be more costly and time consuming than a trial by judge alone, but this reason on its own will not supplant that right.

Noah Beiles is a summer student at ZTGH. If you have a question about this blog, please contact Noah: [email protected] or Jennifer Griffiths: [email protected]