Court Denies Motion to Transfer Action to Simplified Procedure When Jury Notice Filed Prior to Amendments to Rules

The decision in Thomas v. Aviva, 2022 ONSC 1728, arose out of a motor vehicle accident in April 2016. An action was commenced under the ordinary procedure. The defendants, RBC and Aviva, delivered a statement of defence and a jury notice in September 2018.

The plaintiff subsequently brought a motion to reduce the damages claimed to $200,000, which is within the monetary jurisdiction of the simplified procedure. The plaintiff also sought to continue the action under the simplified procedure and to strike the jury notice.

On January 1, 2020, the Rules of Civil Procedure were amended to prohibit jury notices in most simplified procedure actions. The question to address on the motion was: should a party’s jury notice, delivered before January 1, 2020, be struck where a statement of claim is amended to comply with the monetary limits under the simplified procedure?

Justice Ramsay stated as follows:

[54] In summary, I would conclude that the amendments did not take away the defendants’ substantive law right to a jury trial where the jury notice was delivered before January 1, 2020, even if the claim is amended to claim damages within the monetary limits under rule 76.  Read in concert, the transition provision in s. 108(2.1) of the CJA and rule 76.14 of the Rules of Civil Procedure, make it clear that the amendments with respect to eliminating jury trials under Rule 76 were not to have retrospective (retroactive) effect, but rather, were to operate prospectively, for any jury notice delivered after January 1, 2020. That being the case, the plaintiff’s motion to strike the defendants’ jury notice before trial fails. In the result, though the damages claimed by the plaintiff have been amended to comply with the monetary jurisdiction of actions proceeding under Rule 76, the existence of a jury notice forecloses the matter being transferred to continue under Rule 76.

Therefore, the plaintiff’s request to transfer the action to the simplified procedure and to strike the jury notice was denied.