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Articles and Publications

August 2019

So You've Released a Defendant Municipality:
Can you Still Have a Jury Trial?

Van Krkachovski
Van Krkachovski,
Partner

by Van Krkachovski

First presented at a Client Seminar.

Introduction

Jury trials provide the opportunity for a group of people, selected at random from the community, to decide issues of fact or assess damages in a Superior Court action. An action can be tried with a jury if a jury notice is delivered by one of the parties before the close of pleadings, which is typically early on in the life of an action. After pleadings are closed, a jury notice can only be delivered with leave of the court.1

This right to a trial by jury is an important right, and one that will not be denied without cogent reason.2 Depending on the evidence at hand, and one's position in an action, this can either be a useful option or an avenue best avoided. There are some kinds of actions, however, that preclude the presence of a jury.3 One such situation is in respect of a claim for relief against a municipality, which gives rise to a question: if an action has multiple defendants, one of them being a municipality, and the municipality is let out of the action before trial, can a trial by jury still occur?

While a complicated history of case law exists in regards to this matter, the Ontario Superior Court's decision in Proper v Nikore (2010) now provides guidance on this point. In this case, a jury notice was not initially delivered as the City of Brantford was a named defendant. After the pleadings closed, the plaintiff released the City from the action and subsequently sought leave from the court to file a jury notice.

History of Granting Leave for Late Jury Notices

Much of the prior jurisprudence on this point of law refers to three different requirements to justify exercising a discretion to extend the time for a jury notice.4 The first requirement is that the failure to deliver was inadvertent; the second is that the delay is not unconscionable, and the third is that there is no real prejudice to the other party. While these requirements have been reoccurring themes in the past, Justice Molloy believed it was unnecessary for inadvertence of counsel to exist.5 However, she stated that the reasons for the delay may be a relevant factor in determining whether a delay is unconscionable.

Current Treatment in the Courts

Justice Molloy stated in her reasons that there is no legal basis to support different tests for late delivery of a jury notice at arbitrary points in time during the litigation.6 The test remains the same throughout. It is of note, however, that the greater the delay in filing the jury notice and the more preparation for trial that is completed before the delayed attempt to file the jury notice, the greater the likelihood that leave will be denied.7

The court has typically found in favour of allowing late filing of a jury notice...

The Divisional Court touched upon the issue of late filing of a jury notice in Jackson v Hautala, where it held that the time to file should be extended unless there has been an unconscionable delay in applying or the opposite parties are likely to be prejudiced.8 While this case did not involve a municipality being let out of the action, Justice Molloy clearly considers this line of reasoning to be applicable to the issue of late filing due to statutory restrictions on the availability of jury trials. The court has typically found in favour of allowing late filing of a jury notice, as in Paskie (Litigation Guardian of) v Canadian Amateur Boxing Association.9 In this matter, four years after the close of pleadings, the plaintiff retained new counsel who attempted to file a jury notice. The Master found that the delay was not unconscionable in the circumstances and that there was no prejudice to the defendants, and therefore granted leave. The test remained as before, with unconscionable delay or prejudice to the other side being determining factors for whether to grant leave.

Prejudice to the Opposing Side

It seems that in most cases, an unconscionable delay is not considered a defining factor in whether or not to grant leave to file a late jury notice. The more determinative factor appears to be whether allowing the filing of the jury notice would prejudice the other side at that point in the litigation.

One of the most common bases upon which prejudice may be found is where a trial may be delayed by the late delivery of a jury notice.10 A jury trial may also require a different presentation of evidence and advocacy compared to a non-jury trial, and changing the kind of trial close to the trial date could prejudice counsel by impacting their ability to successfully represent their client.11The purpose of the Rules is not to provide any party with a procedural advantage over the other.12 It is true that requests to file a jury notice following discoveries may be particularly scrutinized in order to prevent any one party from obtaining an unfair advantage if information is revealed that impacts a strategy choice.13 However, the start or completion of discoveries is not determinative on the issue of prejudice.14

Another consequence of allowing the late filing of a jury notice can be the potential delay of a trial.

Another consequence of allowing the late filing of a jury notice can be the potential delay of a trial. This delay may constitute prejudice to the other party, but this likely will not be inferred unless an evidentiary foundation for such is present.15 Potential evidence leading to a conclusion of prejudice might include the choice of which witnesses to call, or other tactical decisions such as whether to undertake surveillance of a plaintiff. This creates an additional difficulty, as the party suffering the alleged prejudice may not be able to state clearly in their affidavit materials the specific nature of what prejudice they may suffer, without creating that prejudice from their affidavit itself.

Current Authority for Filing Late Jury Notices

In general, when assessing the likelihood of success in filing a late jury notice, a judge will consider the circumstances of the delay and whether there has been prejudice to the other party.16 Both of these factors will be determined by the specific facts of the case at hand.

In reviewing the circumstances of the delay, both the length and the reasons for the delay are pertinent considerations.17 The longer the delay, and the closer the case is to trial, the more likely that the delay will be considered unconscionable. If there has been an unforeseen development in the case, such as the removal of a municipality, the delay is less likely to be objectionable. In addition, even when the reason for the late jury notice is counsel's inadvertence, the delay is less likely to be found unconscionable.18

In respect to prejudice, there is no arbitrary procedural benchmark that will prove that such exists in any given case.19 However, the closer the action is to trial, the more likely it is that prejudice will be found given that preparation for a jury versus non-jury trial is substantially different.20 It is also more likely that prejudice will be found if allowing the late jury notice to be filed will delay the trial.21

Releasing a Municipality and Moving to File a Jury Notice

When a defendant municipality is released from an action after the close of pleadings, and a party moves to file a jury notice, it is likely that the courts will provide leave for such absent any unconscionable delay or prejudice. As seen in Proper v Nikore, letting a defendant municipality out of an action has been held to constitute a sufficient reason for the delay, even when combined with inadvertence of counsel for a period lasting up to four years.22 It is apparent that the Courts seem reluctant to disallow a jury trial, as the right to have a matter judged by a collection of one's peers is a substantive and long-standing right in common law jurisdictions.

To avoid the need for a motion at all, defence counsel will sometimes serve a jury notice with their Statement of Defence even when a municipality is one of the defendants. Counsel does this as they recognize that if the municipality remains within the action until trial, the jury notice will be struck, however, if the municipality is let out before trial, then a jury trial can take place.

  1. Proper v Nikore, 2010 ONSC 2307, at para 9.
  2. Ibid at para 19.
  3. Courts of Justice Act, R.S.O. 1990, c. C.43, s.108(2).
  4. Supra note 2.
  5. Ibid.
  6. Supra note 1 at para 18.
  7. bid.
  8. Jackson v Hautala, (1983) 42 O.R. (2d) 153, at para 11.
  9. Supra note 1 at para 21.
  10. Supra note 1 at para 22.
  11. Rodic v Centre for Addiction & Mental Health, [2001] O.J. No. 2000, at para 8.
  12. Ibid.
  13. Safi v Doctors Hospital, [1999] O.J. No. 283, at para 12.
  14. Supra note 1 at para 24.
  15. Ibid at para 28.
  16. bid at para 26.
  17. Ibid.
  18. Ibid at para 27.
  19. Janet Doe v Bragg, [2005] O.J. No. 3932, at para 35.
  20. Supra note 1, at para 28
  21. Ibid at para 27.
  22. Ibid at para 29.
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