In Borkowski v. Karalash et al., 2023 ONSC 6274, the plaintiff was involved in a motor vehicle accident on May 15, 2014, and alleged to have suffered injuries. The plaintiff sought leave to bring a motion to transfer the matter to simplified procedure without a jury.
The plaintiff took the position that the matter ought to proceed under the Simplified Rules and instructed her counsel to move to strike the jury notice, which is the subject of this motion. The plaintiff argued that her damages will likely not exceed the revised monetary limitations of Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). As a result, the plaintiff sought permission to amend her statement of claim to limit her damages to $200,000.00 and to strike the jury notice.
The defendants took the position that they had been ready for trial since June 2020 and that one of the most significant causes for the delay in moving this matter to trial was the plaintiff herself and her actions.
Justice Rasaiah struck the jury notice and permitted the plaintiff to amend her pleadings to reduce her damage claim to fit the monetary jurisdiction of the Simplified Procedure.
Justice Rasaiah found that there was no evidence that the defendants would suffer any functional disadvantage by having the case adjudicated by a judge alone as opposed to a judge sitting with a jury. On the other hand, the plaintiff had presented evidence that was not challenged by the defence when they argued that a 2-week civil jury trial could potentially be financially devastating. Therefore, the Court concluded that based on the amount in dispute and the complexity of the issues, the proportionate result supports striking the jury; permitting the amendment; and ordering that the trial proceed under the summary trial provisions set out in Rule 76.
This decision from the Superior Court is troubling for several reasons. First, it is assumed that if the case was to proceed as a judge alone trial, it may result in the matter being heard sooner than later. The plaintiffs failed to present evidence supporting this position. Further, the Court fails to give due consideration to the fact that the plaintiff actually requested to move the trial to 2025 when the parties attended assignment court. Second, Justice Rasaiah did not fully address the defendants’ submissions regarding delay and found that they had no bearing in whether the discharge of a jury ought to be ordered. Though seemingly not argued by the defendants, it can be contemplated that the defendants prepared the case as a jury case and that their strategy would have been different if it were a judge alone case. It was apparently nowhere with the Judge’s contemplation that the right to a jury trial is something that case law suggests not be trifled with absent a compelling reason.
Juny Kim is the author of this blog and a lawyer at ZTGH. If you have a question about this decision or a similar file, please contact Juny at 416-777-5304.
