A plaintiff’s last-minute motion to move a six-year-old action scheduled for trial under Rule 76 simplified procedure, citing that she was too unwell to participate in an ordinary trial, was denied by the court as a tactical move causing undue prejudice to the defendant.
This decision emphasizes the importance of plaintiff’s counsel in determining strategy and best procedure from the outset of the claim, ensuring clients are aware of the commitment to a potential jury trial and what that might look like for them down the road in terms of participation and testifying. The decision also highlights the different avenues for seeking trial accommodations for clients with disabilities and moving to utilize those avenues as soon as is reasonably possible.
Background
The plaintiff commenced a personal injury action in 2018 initially seeking $550,000 in damages arising from a 2016 motor vehicle collision. After proceeding for six years under the ordinary procedure, the action was set down for an eight-week jury trial (later reduced to five weeks) with altogether 17 anticipated witnesses. Shortly after pretrial, but before trial, the parties agreed on an adjournment while the plaintiff sought to amend her claim to proceed under Rule 76. She cited the reason for the change was her inability to endure a lengthy trial due to her various health issues.
Court’s Findings in Dismissing the Plaintiff’s Motion
The plaintiff described in her affidavit her intention to move the action to simplified procedure to permit her to put her evidence in by way of affidavit, limit the hours and days she would need to testify in person from the witness box and limit the quantity and time in which she had to attempt to retain relevant evidence in her memory. She did not address at all in her evidence the prejudice that would result to the defendant, such as the costs already incurred to date or how that would be dealt with.
RSJ MacLeod noted that if the plaintiff was as debilitated as her affidavit suggested, then capping her damages at $200,000 and attempting to shoehorn all the evidence into a five-day trial seemed highly unlikely to yield a fair or just result for either party. The plaintiff’s strategy of seeking this amendment only after failing to settle what was portrayed as a more serious claim was “an abuse of process.”
In seeking to cap her damages at $200,000, the plaintiff was not conceding that her damages were less than that. Rather, she purported herself to be severely disabled as a result of the collision and that she was compelled to cap her damages only because she did not believe she could withstand the rigours of a formal trial. The court held that it would be a “failure of the justice system” if they could not devise a method of conducting a trial that would accommodate the needs of a disabled plaintiff, and that many of the features of a Rule 76 trial could in fact be made available in a regular trial.
Avenues to deal with a litigant who cannot testify in the regular manner (other than moving an action to simplified procedure) were noted to include seeking the orders available under Rule 20.05. The plaintiff had never asked for any such accommodations. Her assertion that she could not participate in a regular trial, but could participate in a Rule 76 trial, was neither persuasive nor admissible.
Even if the court had granted the amendment, as RSJ MacLeod observed, Rule 76 imposes a cost penalty to partially address the prejudice inherent in such a last-minute change to the litigation landscape. The plaintiff had pursued ordinary litigation for over six years and now suddenly sought a different mode of proceeding after the action had already been called for trial. The plaintiff had already obligated herself to pay the wasted costs for the adjournment of the trial. If the amendment was granted, she would also be liable for costs incurred by the defendant in defending the action that would not have been incurred had she proceeded under Rule 76 at the outset. This would be true even if she was successful at trial, however, the court noted that costs alone might not have been sufficient to address all the prejudice inherent in such a last-minute change of strategy.
The court concluded that the plaintiff’s motion was ill founded, appearing to be nothing more than a tactical decision based only on unwillingness to go through with the jury trial originally scheduled, as well as a failure on her part to request any modifications needed to allow her to participate appropriately. The motion was dismissed.
The court also briefly reviewed a similar conclusion made in Andres v. Rasheid, 2022 ONSC 3317as well as comparing the case at bar to Ramlingum v. Doe, 2025 ONSC 535 where a plaintiff was permitted to continue their action under the simplified procedure under different factual circumstances, such as moving to change procedure prior to setting the matter down for trial.
