Motion to proceed under simplified procedure and strike the jury notice granted
In Ramlingum v. Doe, 2025 ONSC 535 (CanLII), the plaintiff was successful in obtaining an order amending her claim to continue under simplified procedure and striking the jury notice filed by the defendant.
Facts
As a result of her involvement in a motor vehicle collision involving an unidentified driver in October of 2018, the plaintiff commenced an action in May 2020. Her action was commenced under the ordinary procedure, seeking damages of $1,000,000. The defendant, Co-Operators General Insurance Company, filed a statement of defence, crossclaim and jury notice in January 2021. Among other things, their defence plead that the action should have been commenced under the simplified procedure.
Following her examination for discovery in June 2021 and a failed mediation in early February 2022, the plaintiff advised the defendant that she had reassessed her claim, determined that her damages fell within the simplified procedure limits and that she intended to transfer her action into the simplified procedure. She noted that her examination for discovery, albeit unplanned, had been conducted within the time limits prescribed by the simplified rules. The defendant opposed the transfer to simplified procedure on the basis that the trial would take longer than the five days permitted under the simplified rules. It also sought to preserve its jury notice.
The action had not yet been set down for trial and no expert reports had been exchanged by the time of this motion. Only damages were at issue at trial.
Continuing under Simplified Procedure
The plaintiff’s statement of claim had already been amended, on consent, to reduce her general and special damages to $200,000, bringing her claim within the monetary limits of the simplified procedure rules. However, the jury notice had not been struck, as required for the action to continue under the simplified rules. Whether the action should be transferred, and the defendant’s jury notice should be struck, was the subject of this motion.
Justice Akbarali considered the two issues raised by the defendant on this motion. Specifically, whether the defendant would suffer non-compensable prejudice if (1) the trial were limited to five days; or (2) if its jury notice was struck.
As it related to the trial length, at the hearing of the motion, the plaintiff undertook to call only one expert witness at trial, in addition to two anticipated lay witnesses and her own evidence. All the witnesses would lead evidence in chief by affidavit if the trial were to be conducted under the simplified procedure rules. It was the plaintiff’s position that a summary trial of her action could be completed within five days.
The defendant’s position was that the trial would take, at minimum, eight days, and more likely 10 to 15 days due to the number of anticipated expert witnesses required to respond to the plaintiff’s claim, including her physical and emotional injuries, loss of income, loss of competitive advantage, ongoing medical expenses and housekeeping claim. In addition, the defendant had obtained surveillance of the plaintiff, both in-person and through social media. The defendant also intended to call the investigator who conducted that surveillance and potentially a second investigator after updating the surveillance prior to trial. They estimated the time required for the investigator’s evidence at trial was a day and a half. The defendant also anticipated bringing a threshold motion.
Justice Akbarali disagreed with the defendant’s position that their investigator’s evidence would take a day and a half to complete, even if further surveillance was obtained, and saw no reason why the examination in chief of the investigator could not be led effectively by affidavit. Justice Akbarali did not accept that a cross-examination of the plaintiff should take an entire day when the discovery (after already having obtained two rounds of surveillance) had lasted less than three hours.
Where a fair trial cannot be realistically be completed within five days, an action is not suitable for transfer to the simplified procedure. However, in this case, given the plaintiff’s undertaking regarding the limited number of witnesses she would call, there was no reason that this trial could not be completed within five days. Justice Akbarali made a specific recommendation for case management to be employed to properly manage the trial to ensure that it would be fairly and efficiently heard within the time limits provided by the simplified procedure rules. Noting that in Borkowski v. Karalash et al., 2023 ONSC 6274, Justice Rashiah struck a jury notice and continued a proceeding under the simplified rules, in a proceeding involving five experts, participant health care providers, lay witnesses, seven hours of surveillance footage and over 1,200 pages of medical records, as it could be appropriately managed to narrow oral testimony and shorten trial evidence.
With respect to striking the jury notice, the defendant argued that it had developed its litigation strategy and resources based on its reasonable expectation that the trial would be heard by a jury in the ordinary procedure. It specifically referred to the surveillance that had been conducted and its social media investigation. Implicit in this argument that its litigation strategy was developed for a jury trial was the argument that surveillance evidence or social media evidence would have more sway with a jury than a judge and that the defendant would therefore suffer non-compensable prejudice if it were denied the right to proceed to trial by jury.
These arguments were seemingly not persuasive at the hearing of the motion. Justice Akbarali conducted a review of decisions involving the striking of jury notices; considering when it is appropriate to do so as well as the defendant’s argument regarding the disadvantages of having the case decided by a judge rather than a jury, before concluding that striking the jury notice and having the matter heard by judge-alone trial would not result in non-compensable prejudice to the defendant. The defendant would be able to adduce the same evidence before a judge and receive a fair trial on the merits. This was consistent with the defendant’s own pleading that the action should have been commenced under the simplified procedure.
The simplified procedure process would be more proportionate having regard to the amount in issue and the complexity of the trial. Conversely, continuing the proceeding under the ordinary procedure would add delay and expense, both of which would prejudice the plaintiff and the defendant, when the simplified procedure would be adequate to try the action fairly.
Conclusion
The action was ordered to proceed under simplified procedure and the defendant’s jury notice was struck. As the unsuccessful party, the defendant was ordered to pay the plaintiff’s costs of the motion in the amount of $6,500 all inclusive, within thirty days.
