Late Jury Notice? Industry Practice Won’t Bail You Out
In the recent decision in Sanabria v. Nizam, 2025 ONSC 6118, the Ontario Superior Court of Justice dismissed a motion for leave to file a jury notice almost four years after the close of pleadings. The decision is a pointed reminder that “industry practice” and bare assertions of inadvertence will not rescue a late jury notice, particularly where the opposing party has shaped their litigation strategy around a judge-alone trial.
Background
The claim arises from a motor vehicle accident that occurred on September 27, 2019. The plaintiff issued a statement of claim on August 26, 2021, and the defendants delivered a statement of defence on December 3, 2021. No jury notice was filed at this time.
Between 2021 to March 2025, three different lawyers within the same firm had carriage of the file without serving, or seeking leave to serve, a jury notice. Discoveries were completed in 2022, and mediation occurred in January 2023. The action had not been set down for trial, but pending defence medical reports, the parties were ready for trial.
In March of 2025, a fourth lawyer took carriage of the file and noticed the absence of a jury notice, which prompted the motion for late service.
Legal Framework
Pursuant to Rule 47.01 of the Rules of Civil Procedure, a jury notice must be delivered before the close of pleadings. However, the Court may permit late service of a jury notice upon consideration of two key factors:
- The circumstances of the delay; and
- Whether there is prejudice to the other side.[1]
The Court’s Analysis
The Circumstances of the delay
The defendants argued that the omission of a jury notice was inadvertent, relying on an alleged insurance defence “industry practice” of routinely filing jury notices in all motor vehicle cases. They submitted that the Court should take judicial notice of this industry practice, relying on the case Cipparone v. Royal and Sun Alliance Insurance.[2]
The Court declined to take judicial notice of any such universal practice for two reasons. Firstly, the Court distinguished the facts in Cipparone from the present case. In Cipparone, the nature of the claim (bad faith, credibility issues) made the case particularly suitable for a jury, which informed the inference that the omission of a jury notice was a mistake. There were no such similar facts in the present case.
Secondly, plaintiff’s counsel disputed the assertion that jury notices are invariably served in motor vehicle accident cases, leading the Court to find that the described industry practice was not so notorious or accepted as to justify judicial notice.[3]
Furthermore, the Court noted that to accept that jury notices are invariably served in motor vehicle actions would mean that any failure to deliver a jury notice in such cases must always be treated as inadvertent. As a policy matter, this would render the first part of the test meaningless.
The evidentiary record was also weak, with second-hand evidence of the original lawyer (who had no memory of the file) relaying that he “assumed” the failure to serve a jury notice was a mistake. There was also no evidence of client instructions in favour of a jury. Conversely, the plaintiff led uncontradicted evidence that the non-jury nature of the case had been discussed between the parties before the January 2023 mediation. The Court found that if the defendants intended a jury trial, counsel would have taken steps to serve a jury notice at that time.
Given the length of the delay after the close of pleadings, no unforeseen developments in the litigation, no clear evidence of a mistake, and direct evidence that everyone had been treating the matter as non-jury for years, the Court was not prepared to characterize the omission as inadvertent. The Court described the circumstances of the delay as “unconscionable.”
Prejudice to the plaintiff
The Court accepted that the plaintiff had conducted the case from the close of pleadings onwards on the assumption that there would be a judge-alone trial. This assumption influenced the plaintiff’s litigation strategy, including how discoveries were conducted, mediation and settlement positions, and the type of evidence to lead before a judge, rather than a jury.
Moreover, it was a relevant consideration that preparing for a jury trial requires more time and money than preparing for a judge-alone trial.
For the above reasons, the Court held that the plaintiff would be prejudiced by the late service of a jury notice.
Conclusion and Key Takeaways
The Court held that the circumstances giving rise to the delay were unconscionable and the plaintiff would be prejudiced as a result. As such, the defendants’ motion seeking leave to file a jury notice was dismissed.
This decision offers important lessons for counsel dealing with late jury notices:
- Late jury notices face a high bar. The Court made clear that a party seeking to serve a jury notice after the close of pleadings must provide compelling evidence explaining the delay. Bare assertions of inadvertence will not suffice.
- “Industry practice” is not a substitute for evidence. The Court refused to take judicial notice of an insurance defence practice of always serving jury notices in motor vehicle cases. Disputed or non-notorious practices cannot ground claims of inadvertence.
- Litigation strategy matters, and if one party has organized their case around a judge alone trial, prejudice will be readily found, especially in late-stage litigation.
[1] Proper v. Nikore, 2010 ONSC 2307 at para 26.
[2] 2010 ONSC 4528 at para 2.
[3] R v Mabio, 2012 SCC 47 at para 71.