In Schram v. Loughrey, 2021 ONSC 5018, defence counsel inadvertently did not file a jury notice, contrary to the defendant’s insurer’s litigation guidelines. The statement of defence was delivered on June 28, 2018.
The oversight was discovered on or around September 25, 2018. Due to a “miscommunication” within the client’s reporting software, instructions were not provided at that time to defence counsel (presumably instructions to attempt to file a jury notice late).
In September 2020, the insurance claims handler discovered that a jury notice was not filed and immediately instructed defence counsel to file one, which defence counsel did.
The defendant brought a motion for leave to deliver a jury notice nunc pro tunc (now for then). The plaintiff brought a motion to strike the jury notice.
Justice D.C. Shaw outlined the test from a Divisional Court decision regarding granting leave to late file a jury notice. There are two key factors: the circumstances of the delay and whether there is prejudice to the other side.
In terms of the circumstances of the delay, both the length of the delay and the reasons for the delay are relevant. If there is a lengthy delay or if the case is close to trial, there is a greater likelihood that the delay will be considered unconscionable.
If there is an unforeseen development in the litigation (such as an increase in the quantum of damages claimed or the addition or removal of parties or causes of action), the delay is less likely to be objectionable. Further, when the failure to file a jury notice is solely due to the inadvertence of counsel, the delay is less likely to be considered unconscionable.
Regarding prejudice, there is no presumption of prejudice. However, logical inferences can be drawn in appropriate cases. For example, if a jury notice will delay the trial, prejudice to the other party can be inferred.
Justice Shaw was concerned with the delay between when the oversight was discovered and when instructions were given to file a jury notice. However, he primarily based his decision on the prejudice the plaintiff would suffer if the defendant was permitted to deliver a jury notice.
The plaintiff advised that the case is ready for trial and that the action would be set down for trial forthwith following the decision on the motion.
Justice Shaw consulted with the Regional Senior Judge in the Northwest Region who advised that civil jury trials will not be scheduled until September 2022. Even then, there is a backlog of civil jury cases and there is a possibility that the case in question would not be heard until 2023.
On the other hand, a judge-alone trial can be heard much quicker. In the Northwest Region, non-jury sittings are held roughly every two months, usually with multiple judges available to try cases. A judge-alone trial can be placed on any running list for 2021 and 2022.
As a result of the delay that would be occasioned by a jury trial, Justice Shaw said that the prejudice to the plaintiff is real and substantial. Therefore, Justice Shaw held that the jury notice is not permitted.