The Plaintiff in the matter of Lightfoot v. Hodgins, [2021] O.J. No. 1292, brought a recent opposed motion to strike the Defendants’ Jury Notice. This Belleville matter was set to be tried by a jury, commencing on May10/21, and this motion was argued in front of Justice Muszynski on Feb5/21. Not only did Justice Muszynski conclude that the Defendants in the present case could not maintain their Jury Notice, but through a methodical analysis of the relationship between the post-Jan1/20 amended Rule 76 and pre-existing jury notices, her Honour also made the more overarching ruling that jury trials are incompatible with the Simplified Procedure set out in the amended Rule 76, and provided a clarification on the exception in Rule 76.14.

Rule 76.14 is the ‘transition provision’ that connects the pre-Jan1/20 Rule 76 with the post-Jan1/20 Rule 76, by (not so) clearly stating that any Simplified Procedure actions issued before Jan1/20 and filed with a jury notice, do not have to proceed without a jury. Lightfoot reduces the potential implications of this transition provision from three down to one; i.e., Rule 76.14 could mean that a pre-Jan1/20 action proceeds with a jury either, i) under the pre-Jan1/20 Simplified Procedure; ii) under the post-Jan1/20 Simplified Procedure (but-for the requirement of a judge-alone trial); or iii) under ordinary procedure. Justice Muszynski ruled out the first option quickly, by stating that there are no references whatsoever in the amended Rule 76 to permit the pre-Jan1/20 Simplified Procedure to continue to apply for any reason.

The discussion in Lightfoot related to why Rule 76.14 solely means that a pre-Jan1/20 action can only proceed with a jury under ordinary procedure, is largely based on the contents of Rule 76.12, which delineates the Summary Trial process. Pursuant to Rule 76.12, a trial on a matter within Simplified Procedure involves a maximum of five trial days for opening and closing statements, and the testimony of witnesses. Most importantly, the examination-in-chief of all witnesses in the Summary Trial process is done by way of Affidavit. Justice Muszynski agreed with the Plaintiff’s argument that even if a jury trial could be limited to five days, the Trial Summary process would not work with a jury. Despite the Defendants’ argument that a jury could deal with Affidavit evidence and limited time for cross-examination testimony, the Court found that reading Affidavit evidence, which could include some expert evidence, as well as the reading time for said evidence, is not compatible with a jury nor the five day maximum.

With respect to the Plaintiff’s request for leave to amend their Statement of Claim to reduce their prayer-for-relief to $200,000 from $750,000, and to continue their action within the ambit of Rule 76, the Plaintiff argued that they only recently acquired more evidence regarding their medical status. They cited certain dates in the civil litigation process, including the April 2015 motor vehicle accident, issuing their Statement of Claim in September 2016, the May 2018 Discoveries, October 2018 as when they received their medical expert’s report, and November 2019 as when they received the Defendants’ medical expert’s report.

The Defendants agreed that the Statement of Claim ought to be amended to include a prayer-for-relief of a maximum of $200,000, and that this matter proceed under the amended Rule 76, but-for the requirement that their Jury Notice be struck. The Defendants’ position was that the matter could either proceed under Rule 76 and be tried by a jury, or continue in ordinary procedure. The Defendants relied on their statutory right to proceed to trial by jury, and in response to this reliance the Court discussed the case law that firmly establishes that the right to a jury trial is not absolute (Girao v. Cunningham, 2020 ONCA 260), and that it may have to yield to the interests of justice and the principles of proportionality (MacLeod v. Canadian Road Management Company, 2018 ONSC 2186).

The Court cited Rule 26.01, which states (paraphrased), that leave to amend a pleading can be granted at any stage of an action, as long as the terms are just, and no prejudice results to either party that cannot be compensated for by costs or an adjournment. The Plaintiff argued costs could compensate the Defendants, and relied on Rule 76.13, which provides for costs on a substantial indemnity basis to be paid by the party whose pleadings are amended to move an action into Rule 76, to the opposing party, for their costs incurred up to the date of that amendment, which would not have been incurred had the claim originally been under Rule 76.

The prejudice to a Defendant that results from a matter switching from a jury trial to a judge-alone trial, within three months of the start date, is arguably not compensable by costs. Preparing for a jury trial is different in terms of the witnesses you require, and the strategy you take to present the narrative of the matter, than it would be when preparing for a judge-alone trial. Since this motion was heard less than three months prior to the scheduled commencement of trial, this presents a non-compensable prejudice to the Defendants, not only because they would have lost the jury, but because they may have requested different medical assessments and experts if they had known that the matter would be tried judge-alone as opposed to by a jury. Likely in an effort to be reasonable, the Defendants agreed that this matter was well suited to Simplified Procedure, but also wanted it to be tried by a jury. This resulted in her Honour’s clarification of the exception in Rule 76.14.

This clarification cemented the incompatibility of a jury trial with the machinations of the amended Rule 76, most specifically that which is mandated within Rule 76.12 (and also Rule 76.10 and the discretion of the pre-trial judge to decide on the number and order of witnesses, because a lawyer losing control of their order of witnesses in a jury trial is tantamount to an author losing control of the order of the chapters in their book, but this is not discussed in Lightfoot). Therefore, once her Honour granted the Plaintiff’s request for leave to amend their Statement of Claim to reduce their prayer-for-relief to $200,000 and continue this action under Rule 76, the Jury Notice was a sitting duck.

Although perhaps it is easy to say in hindsight and with the clarification of the exception in Rule 76.14, it does seem now that it was a strategic error for the Defendants to have agreed that this case was well suited to Simplified Procedure. They ought to have instead argued that there was non-compensable prejudice against them if the Plaintiff’s leave to amend to continue under Rule 76 was granted this late in the day. The Plaintiff had plenty of notice of their medical status, even as late as November 2019 when they received the Defendants’ medical expert’s report, which was still prior to the Jan1/20 amendment to Rule 76. The convenient timing of the Plaintiff’s realization that their Damages were within the amended Rule 76 parameters, lends itself to a conclusion that the Plaintiff was ‘Trojan Horsing’ a run-of-the-mill motion to strike the Jury Notice, within a request for leave to amend their Statement of Claim to continue under Rule 76. At paragraph 68, Justice Muszynski writes, “I find the most compelling factor in this case to be the admission by both parties that this action is well suited for the simplified procedure, including the summary trial process in the amended Rule 76.”

The take away from this Decision, among other things, is the reality that jury notices are generally ripe for being struck these days, due to the pandemic, and the amendments to Rule 76 provide yet another avenue by which to seek to avoid a trial by jury.  With the increase of the prayer-for-relief within the amended Rule 76, from $100,000 to $200,000, there are a large number of cases that should now readily fall within the Simplified Procedure.  The fact that by switching into the Simplified Procedure will eliminate a party’s right to a trial by jury, is yet another consideration that the parties must factor in before accepting that the switch into Simplified Procedure makes sense.

Natasha Skupsky is a member of the Simplified Procedure practice group and author of this blog. If you have any questions about this decision or a similar file, please reach out to Natasha at 647-427-3335